June 8, 2004 | By Wendy Seltzer

Notes from Day Two of WIPO Meetings on the Draft Broadcasting Treaty

Notes from the World Intellectual Property Organization's
Standing Committee on Copyright and Related Rights meeting, day
2, 8 June 2004.

Impressionistic transcript by Cory Doctorow (cory@eff.org), Wendy
Seltzer (wendy@eff.org) and David Tannenbaum
(davidt@public-domain.org)

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-- 

Note: At least nine of the developing world delegations are not in the
room for the morning session.

-- 

Work package 1: scope: objects of protection and rightsholders
Work package 2: rights, limitations, framework/treatment
beneficiaries, national treatment; relation to other treaties and
elegibility; TPM clauses (added after intervention by Brazil)

* Brazil: Wants clarification of work program.  When will we be
discussing TPMs?

Chair: I thought about this; follow the model of pre-existing
treaties closely; there has been no specific controversy; those
were adopted after extensive debate. All proposals contain these
clauses in almost-identical form. So leave as-is for next stage;

Brazil: my delegation believes Art 16 is controversial and we
think it should be debated in this committee in this session.

Chair: no problem adding those articles to the list for Work
Package No. 2 because they're modalities of protection.

* Kazakhstan

CIS countries have agreed-upon position: As to objects of
protection, agreement should protect traditional broadcasting and
cablecasting organizations; Protecting internet broadcasting
important, helpful to express in a different document at the next
meeting.  [Leave webcasters out of this document.]

Subjects of protection. (?)Webcasting, broadcasting, satellite
broadcasting, broadcasting organizations that simultaneously
transmit their own broadcasts. This concerns point 3(e) found in
the consolidated text.

Terminology in this draft text shouldn't contradict terminology
currently used in Rome, WIPO Convention on Performances and
Phonograms (WPPT).

Participants who could accede should be any WIPO member, not
necessarily members of WCT and WPPT.

We support the position of Brazil, regarding the protection of
signal regarding webcasting, the encoding and decoding of
signals. We're not speaking here of copyright or related rights,
but technical elements. So what is stipulated in Art. 16 (article
on TPM's):

16(1) and (2).  Regarding technological protections against
decryption of encrypted signals, participation in
manufacture/sale/making available of devices -- we support these
measures and the language in the draft.

* India

While preparing the text, secretariat has presumed consensus to
grant additional rights to broadcasters.  Ignored concerns that
have been raised by many delegations, including this one.

- Concerned that rights of copyright holders are being eroded by
strengthening neighboring rights.  There's still no conceptual
clarity regarding the proposed treaty.

- Copyright is delicate balance of copyright and neighboring rights
with the rights of society to access information.

- Proposed treaty may tip this balance too much in favor of
broadcasters. Regarding scope. This proposed treaty regulates new
tech, extending to cablecast and webcast. Many countries haven't
reach western levels of development; may not be able to get there
if new technologies are preemptively regulated.  Scope should be
limited to broadcasters. Will have more to say later on
substantive issues.

* USA

- US prepared its proposal to deal with important 21st century
tech development, webcasting among them.  Rome was a pioneering
convention, before many states had adopted neighboring rights.
Do the same here: protect broadcast, cablecast, webcast.  Value
added by deliverer of contents should be protected because it can
be pirated regardless of its means of delivery.

- We addressed concerns in last meeting by limiting definition of
webcasting to that done by legal entities. Limited to streaming,
for orgs that engage in same types of activities as casting orgs.

- We should not ignore technological progress.

- We should level the playing field between traditional
broadcasters and webcasters and give webcasters the same rights
as broadcasters

[ed - the economics of broadcasting and webcasting are completely
different -- webcasting is unicast and asynchronous; broadcasting
is multicast and synchronous. Why should we believe that the
protections for broadcasters will help webcasters? Movie theatres
use the same content as broadcasters, too -- we exclude them from
the treaty because broadcast protection has nothing to do with
movie theatre protection -- neither does webcasting -cd]

- As Alternative E reflects, EU has proposed that only webcasting
performed by a casting org that consists of a simultaneous
transmission should be covered. US proposal also covers this. The
EU proposal however provides that only a broadcasting org could
avail themselves of this protection. Another organization
engaging in the same webcasting activity, subject to the same
threat of signal piracy would not receive protection b/c it has
transmitted only through the Internet. We see no justification
for including one kind of webcasting and not another. The Eu
proposal would provide an economic advantage to traditional
broadcasters. We oppose Alternative E unless all webcasters are
protected.

- Protection of prebroadcast signals in Article 13 should be
included. Prebroadcast signals are very subject to piracy when
transmitted from one region to another. This is a very important
part of the treaty.

[Chair: don't repeat yourselves; time constraints.]

* EC

- I will refrain from giving explicit reasoning on my points, due
to the time constraints.

- We agree with India that we should provide for protection that
is needed and at the same time avoid tipping the balance between
the interests concerned.

- Scope: Should cover wireless, wire, acts of simulcasting. It
should not cover webcasting (Internet originated transmissions),
interactive transmissions ("transmission over computer
networks"). Should protect pre-broadcast signals.

- Articles: 2a, broadcasting, based on 2f of WPPT, why split
definition of broadcasting by wireless and by wire?  Why use term
"cablecasting", new to international instrument?

- 2b: broadcasting organizations: no international definition.
Does it add value? We are concerned that this definition will
lead to "Rome minus." There is no precedent for this definition
and leaves open some questions, such as who is responsible for
the transmission of sporting events? The broadcaster or someone
else?

[ed - yesterday, the issue of sporting events was raised
privately by the Canadian delegation in conversation; the
Canadians claimed that in some nations, retransmission of
sporting events is not covered by copyright and so when people
across the border retransmit without permission no remedies are
available. He didn't seem to be interested in the argument that
those "works" excluded from copyright are deliberately thus: we
have decided as a society to exclude them from copyright for
policy reasons, and putting them *back* into copyright through a
broadcast right seems like a bad way to deliberate the
appropriate scope of copyright -cd]

[ed - This morning I thought about this more and realized that
even if you buy his argument, it's still pretty weird: why should
the guy who *aims a camera* get the copyright monopoly? Why not
teams? Venues? Players? -cd]

- 2d: retransmission: compare to Rome 2g

- 2g: Alt. C, webcasting.  We do not favor including webcasting.

- Article 3, Scope of App: Need for para 1 or para 2? To say that
treaty shall apply to rights of casting orgs in respect of their
broadcast goes w/o saying. Is there added value? Besides, text
speaks of rights of casting orgs in Art. 3(2) and we wonder
whether it should make reference to protection rather than
rights.

- Alternative E - Acts of simulcasting [ed. note that a simulcast
can be unfixed, hence unprotected by copyright -ws]. However,
para 3 refers to webcasting, but we have not defined webcasting.
Perhaps we could find a more neutral term.

- Alternative F - We're opposed, because we're not in favor of
covering webcasting in this treaty.

- Article 3, Para 4 - "Mere retransmission." We're unclear, b/c
defined in Article 2(d). Is the def in 2(d) too narrow?

- Article 13, Signals prior to broadcasting - Do appreciate such
protection.

* Russia:

- 2 points: preamble and Article 2.

    * Preamble uses "piracy."  That's a loaded word, not a legal term.
       Perhaps refer to the illegal use of rights. [ed - yay! I mean,
       "arrrr!" ++]

    * Definitions: broadcasting organizations:

        * Need to cover the situation when cablecasters ignore creators
         and related rightholders -- they say that they're not
         "broadcasters" -- just "signal transmitters." They
          won't pay a copyright or royalty.

        * It's important to be able to respect the balance
        between broadcasters, creators and owners of related rights

* Egypt:

- Speaking as national delegation.  Thanks for secretariat's
work. Egypt submitted proposals reflecting interest protecting
broadcasting orgs. Open to proposals from other countries and
other ideas. Join general agreement with respect to these matters
(?).

- However, we stand firm on:

* Scope: We want this to cover webcasting.

[ed: Egypt later qualified this and said that they had been
mistranslated and believe that Webcasting should be excluded from
the treaty -cd]

* Art 13, pre-broadcast signals; Article 24, eligibility should
be open to any member of WIPO, not necessarily other treaties,
not only those who have acceded to WCT and WPPT.


* Brazil:

- We don't understand that you want us to take stock without
discussing.

- Art. 3: reserve our position re wording of paragraph (2),
cablecasting. We don't necessarily oppose, but our government is
still examining. Not sure same rights of broadcasters should
apply to cablecasters. Might need to reexamine definitions in
Art. 2.

- Webcasting: completely unacceptable that it be included. Note
high level of overwhelming opposition in previous meetings in
this committee. Resolve this quickly, because we won't go into a
draft treaty that includes webcasting.

* Argentina:

- Keep webcasting out of this treaty (delete Alternative F)

- Simulcasting: That's a broadcast activity and entitled to
inclusion

- We like paras a, b and c in definitions

- Para d -- retransmission -- want the Spanish translation
changed from "redifusion" to "retransmicion"

- Art 13: pre-broadcast signals, no objection.

* Australia

- Supports application to broadcasting and cablecasting.  Support
inclusion of def of broadcasting organization, subject to
understanding of the wording. There may be many who participate
in transmission.

- Do not support extension to webcasting in this treaty.

    * Yes, this should be forward looking and webcasting may be
      important in the future

    * but the design of appropriate protection for webcasting needs more study

    * i.e. what should be protected? In the definition of "webcasting"
      proposed in 2G, it seems to be "making available online" and in
      the second sentence as a "transmission" -- this reflects ongoing
      uncertainty about what activity constitutes "webcasting"

    * How does definition of broadcasting organization apply to
      webcasters, especially as webcasting is unregulated?

- Prebroadcast signals - We're prepared to consider that
program-carrying signal  intended for transmission to public
should be protected.

- Echoing a previous delegation re: exclusion of "mere
retransmissions" in Article 3(4). If retransmission as used there
is as defined in 2(d), that refers to simultaneous transmission.
So is deferred mere retransmissions included in Article 3(4)(i)?

* Iran

- Scope: Broadcasting and cablecasting.  No webcasting at this
stage, it needs more work.

- Art 1 should be transferred to final provisions of treaty.

- 2a and 2c should go elsewhere

- Define broadcasting organization as legal entity

- Article 24: any member of WIPO

* Chile

-  IP is supposed to promote creation for the social good

- Basic pillars: public domain and exceptions and limitations to
copyright.

- Inclusion of new rights holders of IP, such as cablecasters or
webcasters could pose a serious risk to the basic pillars, and a
risk to rightsholders who are at the heart of the IP system. This
is the main risk has not been looked at properly from point of
view of developing countries.

- Before we include new categories of rightsholders, we should
perfect rights of current actors in the system (broadcasting
orgs), and clarify the rights of users. The work on future
agreements should be limited in the case of the treaty we're
looking at to the case of broadcasting orgs of a traditional
nature only.

[ed - great to hear about the public's rights and expectations
-ws]

* Egypt

- Some delegations have told us this is a misunderstanding,
perhaps a translations problem. We meant that we *oppose* the
fact that webcasting would be introduced into this treaty. We
said that this is one of the topics to which we attach great
importance.

- We agree with Brazil: in light of general opposition to
webcasting, we should stop discussing this matter if we truly
want to make progress.

* Singapore

- We presented an alternate draft:

- We don't want Webcasting either

- We premise this on the protection of program-carrying signals

- Cablecasting: We define this as broadcasting by wire, excluding
transmission over computer networks and interactive transmissions

- We want to limit this to rights control piracy of signals

- Pre-broadcast signals: Our article 10 was incorporated as
article 13 in the consolidated text, but this doesn't do it
justice. Our article 10 doesn't relate to exclusivity in
pre-broadcast signals, only piracy of same.

- We based our work on Brussels convention with slight
modification

[ed. This is the approach taken by many of the NGOs: focusing on
preventing  signal theft rather than granting new rights that
would let broadcasters control content. -dt]

* Morrocco

- Preamble: We want to keep in the strong term "piracy" [ed -
ARRRRRR! -cd] given how important it is to this text

- Art 3: Scope should be narrow, limited to protecting
broadcasting orgs in a classic way: time to renew and update the
classic protections for broadcasters

- We need to strike a balance and provide rights to all who
deserve them -- both in the AV area and other fields [ed - this
is more stuff about performers' rights -cd]

- Article 13: Redraft this to be more precise. "Effective and
adequate" isn't precise enough.

- Article 24: ?? should take place without reservation

* Benin

- Broadcasting is the locomotive of economic, social and cultural
development in my country. We support all the work done here
today and all future work for a future treaty.

- But deal only with traditional broadcasting.

* Togo

- We applaud the work on the summary document, proving the
importance of adopting a new instrument.  Protect the rights of
rightsholders, creators, performers, performing artists whose
work is an object of broadcasting.

- New instrument should protect only traditional broadcasting,
and cable.

- Exclude webcasting, at least for now.  Also include
pre-broadcast signal.

* Chairman: short remarks can be helpful. Tell us in written
submissions what you don't want to see in the document (otherwise
it may look as though pieces have more support than they do,
because that's all the drafting committee tends to see.)

* India

- Request for clarification: When are we going to discuss
substantive issues of protection beyond scope?

* Chairman: We're still on scope. More after lunch. Now we're
moving onto substance:

    1) Rights: Arts 6, 7, 8, 9, 10, 11, 12, 13

    2) Limitations: Art. 14

    3) Treatment clauses: Arts. 4, 5 (beneficiaries and national treatment)

    4) Eligibility in relation to other treaties: Arts 24, 1

    5) Technological protection measures [ed this is anti-circumvention
       in the DMCA/EUCD sense, along with tech mandates in the broadcast
       flag sense -cd], rights management: Art 16, 17

* Barbados

- Regarding article 24: speaks to the heart of our future
participation. We like the entire treaty except for Article 24.
We can't participate if WCT and WPPT are mandated.

- In the developing world we have other legislative imperatives
to take care of in our march toward development. We will
eventually accede to these treaties. But we don't believe it is
right that we should be excluded from this treaty because we
haven't acceded to the others.

- This document lends itself to our national development in
providing a model for our legislation. But this benefit would be
undermined if Art. 24 is adopted.

[ed: importers of IP have no incentive to join in strong IP
treaties: that's why the US was a pirate nation for the first
century of its existence, while it was merrily and
enthusiastically pirating UK IP -cd]

* EC

- Art 7., Right of Communication to the Public: We can support
Alternative L, but we have problems w/Alternative M because it
leaves a lot to domestic law. (Art. 7, Para 2&3)

[ed. The US currently has a case against it in the WTO for
playing music in bars and other public places without
compensation. -dt]

- Art. 9, right of reproduction.  Alt. O does not give exclusive
right of authorizing, but right to prohibit.  Does not speak of
direct or indirect, as has been done in other international
treaties.  We oppose Alt. O.  Why was exclusive right from Rome
downgraded to right to prohibit?]

- Art. 10, Alt. Q. Right to prohibit rather than right to
authorize.  Same objections.

- Art. 12: Ditto.

- Art. 13, pre-broadcast signals.  Flexible formula, "adequate
and effective legal protection."  Flexibility needed in new
territory.

- Art. 14, limitations: paras 1 & 2 equivalent to previous
treaties.  Alt. T, however, is a grandfathering clause. How would
this affect our ability to harmonize?

[ed. This is a crucial clause. Without it there is hardly any
scope for exceptions. Even with it the scope is narrow. The
Public Knowledge report has a good section on this issue. -dt]

- Art. 4., It's not clear what nationality a broadcasting org
has, so it's a fiction. Why do we need a reference to nationals?
Should we choose a more straightforward approach? This comes from
Art 3 WPPT, but WPPT covers protection of performing artists, but
they are natural persons.

- Art. 5, One of my favorite articles. National treatment is
something we can only consider at the very end of the
negotiations. Once we know what the content of the treaty is. We
are in favor of Alternative J, which draws upon the formula we
have agreed upon in other contexts, with respect to neighboring
rights.

[ed. The US wants national treatment (foreigners get the same
rights as nationals) to protect its content owners. The EU isn't
as enthusiastic, and has won on this issue in the past. -dt]

- Eligibility.  Art. 24, 2 alternatives.  AA: conditioned on WCT
and WPPT accession.  Unconvinced that this is necessary in
self-standing treaty.  7 or 8 EU members have ratified one or the
other, more will be doing so, but it still shouldn't be a
condition.  Art. 26 CC is also unconvincing.

[ed. If WCT and WPPT are requirements for this treaty, then DRM
anti-circumvention like that in the DMCA and EUCD will become an
obligation of all the signatories -- EFF and lots of other NGOs
don't want this. -cd]

- Article 1. Eligibility. need non-prejudice clause concerning
Rome.  Less convinced re other treaties.

- Article 16, comment. While para 1 mirrors WPPT, Alt V does not.
 V seems to give self-standing protection for certain forms of
decryption (? should be encryption?).  Not a technological
measure as understood from previous treaties.

- Because previous negotiations were painful, stick to previously
agreed-upon language.

[ed. Ed Felten has pointed out that if Alternative V goes
through, (iii) would ban computers, which are "capable of
decrypting or helping to decrypt an encrypted program-carrying
signal." -dt]

USA:

- Article 7: Option M based on WPPT. If we don't take M, we'll
upset the balance struck in the WPPT, so we should include paras
2 and 3 and alternative L.

[ed. Again, this refers to the issue raised in the WTO case
against the US: playing music in bars and other public places
without compensating the rightsholders. In the EU this is
illegal. -dt]

- WRT the two-tiered rights: Scope of rights needs to be crafted
to protect broadcasters without conflicting with the public
interests or copyright holders. This is the balance we're
shooting for. We want a right to prohibit to contain signal
theft. Don't expand proprietary rights and you won't trammel the
rights of copyright holders.

- Article 24: We don't want to exclude countries by proposing
membership in the WCT and the WPPT. But we believe that you
should join the others before joining this, because they put into
place the essential legal infrastructure necessary to protect
content in the digital age -- the protection of content and
signals should work together.

- Article 1: We like alternative B -- the broadest possible
statement about noninterference about the rights in this treaty
and any other copyright or neighboring rights treaty.

- Art. 16: agree with EU that 1st paragraph is all that we need.
Not necessarily for same reasons as EU, but it provides the
necessary protection.

[ed - Article 16(1) is the general statement of "technological
measures"; Alternative V's 16(2) is some particularly extreme
implementations against decryptors, use of decrypted signal, and
manufacture of general-purpose or specific decryption devices.
-ws]

Chair: To the EU's query -- you're right that this issue of
broadcasters being identified as a national comes from TRIPS. We
chose this model because we talk about nationals in the articles
about national treatment. So without this legal fiction, the
subsequent article would be funny. We could change this and use
the model in Rome.

* Russian federation

- Art. 1, Russian delegation supports Alt. B because the
contracting parties could be linked with existing obligations
under other treaties.

- Art. 4, Support Alternative H, because this alternative is in
line with Art. 2(6) of the Rome Convention.

- Art. 5, on national treatment, regarding signals we support
Alternative G.

- Art 6, 8, 11, 13, 15, 16, 18, 20, 23, 25, 27, 31 -- We support
the proposed drafting.

- Art. 7 - Alternative M is the most appropriate in line with
Art. 13 of Rome.

- Regarding exceptional rights on banning third parties (?),
Arts, 9, 10, 12 should be in line with these provisions.

- Also join other countries that spoke about acceding to the
treaty. We should not place reservations and force contracting
parties to accede to WPPT and WCT.

- Art. 16, TPMs, we support the EC position. We have found a good
mechanism, in WPPT, and we should follow this model.

* Iran:

- Art. 6, support rider for authorizing retransmission for
broadcast and cablecast.

- 7, Alt. M; Art. 8 support; Art. 9 Alt. O; Art. 10 Alt P; Art.
24, previously mentioned; Art. 1, Alt. B

* China

- Use convention of Rome wording for scope of rights, i.e. have
the right to prohibit, not an exclusive right

- Article 24: Alternative Z is best. I.e., any member state can
join without WCT/WPPT membership

- Article 1 - Alternative A.

* India

- Article 6-12, 13, and 15: These give exclusive rights to
broadcasters for retransmission, communication, etc. In our
opinion, this goes far beyond WCT and WPPT and far beyond those
of performers. Many of us haven't ratified WCT and WPPT -- this
is a WPPT-plus agenda to many developing countries. This further
restricts technology development in the developing world

- Much further than Berne, too.  We have adopted provisions in
TRIPS, but many countries are facing implementation problems.
Imposing new obligations will simply harm the copyright industry
whose protection is main objective of WIPO.

- Exclusive rights in 6-12: Giving rights to broadcasters in
works of creators and performers.

- Article 13 gives rights to broadcasters for pre-broadcast
signals without defining them. Notes that this is related to
Brussels: this therefore isn't a copyright matter, but a Brussels
Convention matter

- This isn't the right forum to protect the investment of
broadcasters

- Art. 15, term of 50 years.  Much longer than mandates in TRIPS,
WPPT, WCT.  Takes away rights of performers and artists. In our
opinion, this is a TRIPS plus agenda for developing countries.
Term unreasonably long.  Reduce to 10-15 and not beyond.

- Other provisions.  We keep our position open and revert back
after discussion with our government.

* Brazil

- Article 5: National Treatment. We favor alternative J,
irrespective of whether we agree on some kind of redefinition of
the term "national." We reserve the right to come back --
possible at a future meeting -- to the issue of the rights
conferred to the beneficiaries under the treaty.

[ed: note Brazilian implication that this business shouldn't be
concluded at this session]

- Concentrate on Article 16, TPMs.  Brazil is concerned with
proposed inclusion of TPMs in proposed new treaty.  Aware that
similar provisions are in WCT and WPPT, but it's important to
recall that those treaties were negotiated and adopted when there
was little awareness regarding potential implications of use of
TPMs.  Since then, some years have gone by, and there's a growing
widespread awareness that use of such measures can be quite
detrimental to rights of consumers and public at large.
Significant concern that anticircumvention has significant
negative for exercise of rights  exceptions and limitations in
national laws.  Important obstacle to access of public to public
domain materia.

Inconsistent with necessary free flow of info so important to
encourage innovation and creativity in the digital environment.
All of Art 16 counters stated objectives of new treaty as
referred to in preamble.  Para recognizes need to maintain
balance between rights of broadcasters and larger public
interest.

This entire article should believe this entire article should be
deleted from the text.  Other delegates argue that e fact that we
have these provisions in WCT and WPPT mean that we should
include them in this treaty. We disagree. Not pertinent to rights
of broadcasting organizations.

[ed. Brazil is very courageous. -dt]

[ed. See EFF's Unintended Consequences report for some of the
specific harms to which Brazil alludes that result from adopting
anticircumvention. Brazil recognizes that previous treaties offer
opportunity to learn from mistakes, not just blindly follow
existing language. -ws]

[ed This is the best statement I've ever heard at a WIPO session.
-cd]

Eligibility.  Our delegations strongly supports alternative Z. We
think it would be entirely inappropriate to condition the
possibility of joining this treaty on the ratification of the
other WIPO internet treaties. We do not think this it is very
helpful at all to have alternative AA.

- We have a reservation with respect to Alternative CC in Art.
26. We would prefer Alt. BB.

- Art. 19 on reservations, we would like to reserve our position
on this at this time. Both of the alternatives are somewhat
restrictive.

[ed. Allowing reservations could allow countries to exclude
certain provisions from their national legislation, eg. TPMs,
webcasting, etc. -dt]

Chairman: Access to information is near to my heart as well. This
is not intended to cover DRM that locks up public domain
material. If an industry or entity does this, then TPM protection
shouldn't be available and circumvention should be lawful.

[ed. Since broadcasting isn't copyright, though, there's a wide
range of new material locked up by new rights for broadcasters.
Otherwise, there's no need for a treaty at all, since copyright
and licensing of copyrights can cover the field. -ws]

[ed. It's a nice theory, but the DMCA enthusiastically covers the
uncopyrightable, the public domain, and things that really
shouldn't be thought of as copyright, like the way that garage
door owners work or the secret of refilling a printer cart -cd]

Mexico:

- Must not prejudice other rightsholders, the owners of the
content of broadcasts. We support Alternative B of Article 1.

- We feel we have the right contained in Art 8, fixation

- Art 7 - Alternative L is the most suitable

- Art 10(?) - Alternative B is the best since it's in line with
our national legislation.

* Chile:

- For now, Article 16: Add Chile's voice to Brazil.  Dangerous
effects from exaggerated effects of protecting TPMs.  If we
include TPMs, be sure to take account of legitimate interests of
users and those entitled to exceptions.

- Art. 14, limitations and exceptions, it's important that as a
minimum, we include the 3-step process from previous treaties
[TK].  Specifically include Rome exceptions: Private use,
information, use for educational and scientific purposes.

* Australia:

- Where we don't express a preference for an alternative we're
reserving our position at this stage.

- Article 6: This refers to "retransmission by any means" -- does
this double-up? [ed: Australia is probably afraid this broad
language covers webcasting. -dt]

- Article 7 - Right of communication to the public, we support
Alternative M as in Rome.

- Article 9 - support alternative N

- Article 10 - support alternative P

- Article 11 - is "by any means" missing in this clause? If not,
then why is it in Article 6 in such abundance?

- Article 12 - support alternative R

- Article 14 - Suggest modification or addition to para (1).
Although based on 16 of WPPT, it might be best to add reference
to "and related rights."  Share reservations on Alt. T. [ed.
"grandfathering" clause] Therefore Alt. U is preferable.

- Article 15 - Why "broadcasting" rather than broadcast?

- Article 16 - if Alt V were to be adopted, on which we reserve,
not consistent reference to requirement that activity be without
authorization [ed. i.e., you could be tripped up even if you were
authorized.] Art. 16 (2)i : Confusion re: "or are prohibited" ?
or "not permitted by law"

- Art 19 X/y [missed this]

- Articles 24, 26: reserve

* Argentina

- Art. 6 - The translation right of retransmission is problematic
in the Spanish version.

- Article 7 - We prefer Alternative M

- Article 9 - We prefer Alternative O

- Article 10 - We prefer Alternative Q

- Article 11 - Exclusive rights banning transmission of
broadcasts based on fixation of such broadcasts -- a translation
problem and not a substantial change

- Article 12 - Rights of making available should be up to owners
of content. This is why we propose that Article 12 be struck,
rather augment Article 9 with a declaration based on article 7, 9
and 11 of the WPPT

- Article 14 - Maintain alternative U -- add nothing, unless in
the future we conclude that the alternative in comments 14.0.5 on
P54 of the English version (Argentina's cablecasting proposal)

- Article 4 - Prefer Alternative H

- Article 5 - Prefer J

- Art 14, AA.  Balance between rights holder and related rights.

- Art 16, on TPMs, pt. 2, Argentina prefers Art. V, but reserves
right to come back.  [ed. Alt. V was Argentina's wording, I
wonder why. -ws]

* Benin

- Article 5: support alternative K

- Articles 6-13, we think it is crucial to strike a balance among
the three regarding the protection of broadcasting and the need
to raise awareness, teach communities at the grassroots. And this
is why while we support the 3 articles, we think these rights
could be stipulated provided these rights are implemented for
business reasons.

- Article 24 - We do not understand the justification for
Alternative AA, delete it.

* Morrocco

- Article 1 - support Alt. B wrt other treaties.

- Article 3 - support pts 1 and 2 on scope of application

- Article 4 - Beneficiaries. "Ressortisant" is not people, but
organizations. National treatment, alt J, reserve, because
national treatment closely linked to application scope.

- Article 6 - Comment.  Retransmission by what means?  "Any
means" is too broad.

[ed: One wonders if using WiFi to send a signal from your TV
receiver to your laptop is covered in "by any means" -cd]

- Article 16 - TPMs.  Support para (1) because it gives states
many options for dealing with the issue.

[ed - but not the option not to endorse TPMs at all, as some
states clearly wish to do to further development, creativity,
etc. -ws]

- Article. 24 - Eligibility for acceding to the treaty, we of
course support Alternative Z. There should be no conditions to
becoming party to this treaty.

- Provisionally conclude. stocktaking of NGOs.

IGOs; African Intellectual Property Organization

Arab States broadcasting union


NGOs:

ARTIS.  problems giving broadcasters more rights than artists.

CSAI.

FILAIE:

* performers' rights should come first.  It's as if we were
trying to repair a wheel when the engine has broken down.

Electronic Frontier Foundations: (Cory Doctorow)

We believe that the technological measures in Articles 16 and 17
are not required for the protection of broadcasters' signals and
thus should not be incorporated in the proposed Treaty. EFF  is a
co-signer to the NGO statement of principles on the proposed
treaty and has submitted a Floor Statement to the Secretariat
detailing its views, and will briefly outline its concerns here.

1. Article 16 opens the door to an unprecedented range of
technology mandates which will constrain technology development

Article 16 requires Member Countries to adopt extensive mandates
over everyday technologies like televisions, and radios. It
envisions broadcasters "marking" broadcasts, cable transmissions
and webcasts with something like the American "broadcast flag".
All signal-receiving devices -- even personal computers -- will
be required to detect and respond to the flag.

Imposing this kind of sweeping government mandate over emerging
broadcast technology is bad for innovation and it's bad for
competition policy. In the US context, these measures restrict
private, non-commercial uses of broadcast programming that today
are reserved to the public, under our existing national laws.

A technology mandate here is premature: there is simply no
evidence that non-commercial uses harm broadcasters.

2. Article 16 is not a good way to protect broadcasters rights
and will harm the public domain

Technological measures have failed to protect IP. However,
technological measures *have* imposed punishing collateral costs
on the public interest. In those countries which have implemented
the similar provisions in the WCT and WPPT there has been
significant harm to competition, technological innovation,
scientific research and freedom of expression.

Article 16 gives broadcasters greater rights than creators over
the content of broadcasts. Under the proposed Treaty,
broadcasters can restrict the distribution of material that is
not copyrightable, is in the public domain or is made freely
available by its creator. Indeed, in national implementations of
the WCT, technical measures have done all these things.

Despite the best intentions of treaty-drafting committees,
national implementations of technological measures undermine or
eliminate altogether the public's access under existing copyright
laws.

There is no reason to grant legal protection for a further and
broader layer of technological measures for broadcast signals,
cable transmissions and webcasts.

3. Broadcaster Technological Measures are Unnecessary

Article 16(1) is based on similar provisions for rightsholder
technological measures in the WCT and WPPT. At the time,
rightsholders argued that they would have no incentive to release
their works digitally absent a strong legal ban on circumvention.

The same is not true for broadcasters. There has been no credible
evidence that broadcasters under-invest in technology.
Broadcasters broadcast, notwithstanding the possibility for
signal theft.

The stated objective for the proposed Treaty is to protect
broadcast signals, not content. Rightsholders and holders of
related rights can already use technological measures to protect
their content in broadcast signals as a result of the 1996
Internet Treaties.

Alternative V - Article 16(2)

Finally,  Alternative V of the proposed Treaty poses a grave
threat to consumers, scientific research and technological
innovation.

Article 16(2) bans general-purpose computers, creates a strict
liability offence for the public and imposes a technology mandate
for encrypted signal receiving devices.

For these reasons EFF strongly supports Alternative W in Article
16, which would not require adoption of Article 16(2), if Article
16 is retained at all.

Thank you for your consideration of our views.

* IP Justice. (Robin Gross)

- Art 16 and 17, in DMCA, chill freedom of expression.  Chill
scientific debate, technological innovation.  Delete Art 16.

- Fix fixation.  The discussion of fixation defies physics.

- Broad scope of "by any means" has unforseeable implications.

- Refers to top 10 list of reasons not to adopt broadcast
protection.

Civil Society Coalition (Jamie Love):

- Oppose movement toward diplomatic conference.  No demonstrated
evidence of need for a treaty.  Broadcasts are protected by
existing law.

- Not about protecting against piracy, but a grab by
broadcasters.

- Treaty doesn't distinguish between public domain and protected.
If it wanted to leave public domain freely accessible, it could
say that.

- Aligned with EFF and IP Justice.

- Address real problems, not claimed harms.

* Union for the Public Domain (Tatyana Nikiforova in Russian++)

- We need to balance social and creative needs and the needs of
broadcasters

- The proposed treaty could limit access to public domain
materials

- We need to ensure that there be access to official documents
and other public materials

- Broadcasting isn't creative and the protection is granted only
on the basis of investment. But even the EC's controversial
protection of investment in databases lasts only for 15 years.

- Copyright already covers the nominal purpose of the treaty

- The treaty appears to be limitless, since it adds a new 50 year
period after each broadcast.

- The prohibition against formalities makes it nearly impossible
for the public to discern the boundaries of the public domain.

- This treaty is against the interests of society -- even a
compromise can't solve these problems

- Keep this away from the diplomatic conference

International Federation of Actors:

- Understand need for traditional broadcasters to fight signal
piracy.

- Regrettable omission to clearly define object of protection.
Define what a broadcast actually is. Such definition is necessary
to define scope of treaty.

- Much of what's in here is about protection of content, not
signal.  Granting broadcasters rights to exploit content, rather
than to protect content-carrying signals harms other
rightsholders.  Irrevocably compromise already imbalanced rights.

- WIPO must address protection of A/V performers before agreement
can be reached here.

* FIAPF:

- Assoc of cinematographic and television film producers.  Signed
common doc available outside, position of most NGO rightsholders
here.

- As India said, this is about Piracy -- broadcasters say so too

- Our only objective here should be preventing non-authorized
transmission of signals

- This treaty shouldn't be a way to take rights from
rightsholders

- Today, A/V producers recoup their investments by selling to
different economic partners, casters, video-on-demand.

- In future we hope that beneficiaries of the new treaties be
clearly defined and perhaps closed off to avoid destabilization
of business models

- The justification for protecting broadcaster (investment) seems
to be exceeded. Specifically looking at Article 10 which deals
with distribution of DVDs, VHS. We wonder about such an exclusive
right being granted to broadcasters. Either the broadcaster has
not purchased this right of distribution, in which case we don't
understand what prejudice or injury he could have in terms of
piracy. Or the broadcaster has acquired the right of distribution
of a VHS, say a football match, which I know nothing about, and
they would have the right to distribute the match on VHS.

- This problem of going beyond signal protection can be found in
the right of making available.

- Piracy is the primary objective.

* FIJ International Federation of Journalists

- Protection should be given to public service broadcasters and
full service broadcasters only. Not webcasters.

- Signal only.  Broadcasters should be given only rights
necessary to fight piracy. Authors and performers should get
similar rights.  Broadcasters should have to acknowledge others'
rights.

- Contracting parties should first join WPPT, WCT (Article 24 AA)

- A/V protection should remain a priority

* International Federation of Musicians

- IFM concerned about several terms.

- We are cosigner to a rightsholder statement on the treaty.

- It has been expressed almost unanimously that extending
protection to broadcasters is premature. We should delete the
references in Article 3 to webcasting.

- Some confusion about terminology, or absence thereof. For
example, it's amazing that "broadcasting" is itself not defined.

- The signal and the content may be physically distinct.

- The objective of the protection is to combat piracy without
inhibiting exercise rights of rightsholders does not require
Article 10 or 12.

- Article 9 should be limited to creating unauthorized fixation.
- Article 11 should be deleted.

- Article 6 as it stands would have harmful impact on exercise of
rights by rightsholders.

- Implementation of new level of protection for broadcasting orgs
without ensuring that we update rights of rightsholders of
content would create a harmful situation. That's why we feel
Article 24 could be maintained only in alternative AA. WPPT and
WCT should be a condition of accession.

- Thank you to government delegations who supported returning to
the A/V treaty discussion.  That continues to be our priority;
don't defer A/V treaty with a diplomatic conference on this.

* IAWG. International Affiliation of Writers' Guilds

- We support principle of defeating piracy. But broadcasting
organizations don't need to be protected against authors and
creators or against society at large.

- Should not include right of distribution, making available, and
retransmission, because these are connected with commercial
exploitation and not with preventing privacy.

[ed: this is a really good, concise statement of the difference
between an anti-signal-theft treaty and a treaty that gives a
windfall to casters -cd]

- Danger that we will give rights to broadcasting organizations
while creators are still waiting for their rights to be granted.
[24 AA]

- There are significant differences between broadcasters and
webcasters. Another measure is needed for webcasters.

* IFPI. International Federation of Phonogram Industry

- The chairman's draft is more like a basis for debate than a
summary of the consensus to date

- Lots of people think that we need something like Brussels

- Rights to Broadcasters shouldn't overlap with or overreach the
rights of creators.  Agree with China, India, GRELAC, and African
region delegates.

- This text is not comprehensive in context of the state of the
debate

- This is at odds with the preamble and article 1 -- to not
prejudice other rights holders. You can't do this with general
statements. You have to do this with specific drafting --
broadcasters shouldn't be able to design and shape business
models related to the content rather than the signal, especially
when we're talking about content whose creators have been
expropriated or subject to a compulsory.

- Substantial redrafting of Article 6.

- Note substantial lack of consensus everywhere.

- We support the "right to reproduction and distribution"
approach

- Article 24 AA should be included -- countries haven't ratified
the WTC and WPPT and they don't give enough rights to holders of
rights in the content. This is to the benefit of broadcasters,
who don't care about WCT and WPPT adoption.

- To create a Broadcast Treaty without a WCT/WPPT obligation
would b0rk rightsholders

- We're co-signers of the rights-holders' paper that you can get
outside

* IMMF

- We believe in a signal-protection-based instrument, not a
rights-based instrument. [cf. the NGO alternative treaty]

- Rights-based path: Which rights, for whom? How broad? Based on
Rome, Berne, etc? How long a term?

- Signal-protection based approach much simpler to achieve for
much greater protection, on basis more likely to endure.

- Parties to this treaty may be party to other instruments that
cover broadcasting with different definitions, different breadth
and scope. To transliterate the rights of this instrument were it
to be rights-based they would have to reconcile their obligations
under many instruments. Whereas if we use the provisions of the
Satellite Convention in Article 2, it's much easier.

- A number of us have taken the consolidated text and reworked it
on the basis of the Satellite Convention, article 2

- Some have said that Rome obligations mandate greater rights
(Rome Article 2).  We submit that signal protection does provide
that greater protection Rome requires.

- The signal approach avoids embarking on the slippery slope
where one has to reconcile the agreement that there should be no
prejudice the rightsholders over material in the broadcast, with
the need to protect the signal.

- What's a fixed signal? What's it's reproduction?  Even if there
is one it's not clear it has value.  The value is the material it
carries.

* GIART

- This is a telecoms issue -- move this out of WIPO, it has
nothing to do with copyright

- Protection for broadcasters should exclude webcasters except
for simulcasters

- The impact on rightsholders here is negative

- We need to balance the protection of rights-holders with the
protection of broadcasters

- Art 6 shouldn't go past the Rome Convention

- This should be based on prohibition, not exclusive rights,
which would come at the detriment of rightsholders

- Making people join WPPT and WCT is OK, but we should also force
them to sign onto the Rome Convention.  Protection of the signal
is not more important than protection of the content.

* FIAD: International Federation of Cinema Distributors

- 13 NGOs have drawn up a text that has been distributed today --
we fully endorse it, bringing it up to 14.

- While it's vital to give broadcasters means to fight piracy,
make it signal piracy, without impinging on copyright holders'
rights. We are concerned about Art 6, 9, 10, 11, 12, 24 but there
isn't enough time to elaborate.

* NAB-Japan

- REgarding scope, webcasting is very important for broadcasters
and webcasters. But we can deal with the issue at a later stage.
This should not be an obstacle to going on with the next stage.

- Time is ripe for diplomatic conference. NAB has been stressing
need for instrument for over 6 years.  Need to fight against
newly arising infringements in this digital environment.  Else
our role as a fundamental medium of communication will be
severely tarnished.  A tragedy not only for broadcasters, but
also for the public.  P2P is killing us.

[ed. I can't quite believe that this is the first time we've
heard mention of filesharing and its demons. -ws]

- We can imagine at this very moment filesharing is surely
spreading like a wildfire. We must act now, before it gets too
late. Whether we can go on to a diplomatic conference or not can
make or break our effort. Now is the time.

[ed: The sky is falling! The sky is falling! -cd]

* DIMA

- As the representative of internet webcasters, it may seem
counterintuitive that I thank delegates for their attention to
webcasting.  Keep your minds open to the possibility of including
webcasting.

- Last June presentation at informational session.  Technology
and business of webcasting.  Major webcasters make substantial
investments of time, money, etc. in making webcasts available.
Contra radio stations with shrinking playlists, webcasters expose
alternative playlists and genres.

- Whereas radio stations could not support niche formats to a
local audience, internet webcasting finds affinities nationwide
and internationally to a very hungry audience for music. Sitting
in my office in Washington, DC or in my hotel here in Geneva I
can listen to music from Nigeria, Jamaica, Cambodia, Germany.
From websites that originate in your countries.

[ed: only if he's staying in a fuller-featured hotel than we -ws]

[ed: Le Fleabag Du Geneve doesn't have WiFi yet -cd]

- Far from being the instrument of the digital divide, webcasting
is a means of bringing the world closer. if you are concerned
with spreading your culture and helping to commercialize your
music and your artists, webcasting brings authentic culture to
the rest of the world. It is the first truly international
broadcasting medium.

- But it is also the easiest medium to pirate. Webcasts arrive at
your computer and are very easy to transmit by pirates. The Yahoo
rep explained that this company spends a lot of time and money
trying to thwart internet piracy of Yahoo's signals. And
technology alone was not enough. As we said in WCT and WPPT,
technological means need to be supported by legal methods of
enforcement.

[Ed: This line vastly overstates the complexity of digitizing an
analog radio signal and the ease of retransmitting a digital
signal -- is it harder to plug your radio into your PC than it is
to break DRM? And how about the person who receives either a
digitized or a cracked signal? Does she have a harder time
putting a digitized file in her Kazaa cache than the person who
receives a DRM-cracked version? -cd]

- This is represented in the proposal to protect simulcasts. If
there's no threat of internet piracy, then why do you need
protection? But if you acknowledge that if webcasting in any form
requires protection from piracy, there is no principled basis on
which you can say that the largest radio station on earth should
deserve protection, but the largest webcaster should not.

[ed: Sure there's a basis.  If protecting over the air broadcasts
doesn't break computers, but protecting webcasts requires trusted
computing and pervasive DRM, that's good reason to distinguish
between them and to stop short of protecting webcasts. -ws]

- An important principle is that copyright owners deserved to be
paid. And members of my organization pay tens of thousands of
dollars annually. They deserve compensation. But if our signals
are pirated, there is no compensation going back to the artists
and the creators. If you want to support a legitimate alternative
to piracy on the internet then you have to give the consumer a
lawful place to go to obtain content in a way that ensures
payment to the creators. One of those ways is by supporting
webcasting.

- Webcasting is here and has been here for many years. The time
to protect webcasting is not later, but now.

- If you have questions about how the definition of webcasting
should be written, the US has some good ideas on that.

- If you don't do this, you'll have a treaty that could have been
written 20 years ago.

- In principle the US has it exactly right. There is no basis to
distinguish between technology if the acts are the same, if the
investment is the same, if the threat of piracy is the same.

[ed: but of course, they're not the same. They're wildly
different -- that's why different orgs are involved in webcasting
than in traditional broadcast. Different technology, bizmodels,
costs, and barriers to entry. Why should we expect measures
designed for sat signals, cable, or broadcast TV to be
appropriate for something as different as the asynchronous,
unicast Internet? -cd]

* EDRi

- Signatory to NGO draft.  A number of concerns regarding
consolidated text.

- Treaty should be signal-centric.  Support African group,
against a new layer of rights that may conflict with copyright.

- Broadcast rights should not restrict the public domain. Works
currently unprotected could be removed from user access.  Made
worse by Article 16's TPM protection.

- Respectfully disagree with Chair that public domain materials
are not protected by such measures.  Support Brazil that Article
16 should be removed.

- No rationale for 50-year term of protection.  Insufficient
evidence that 20 years under TRIPs isn't enough.  Support India
that the terms should be much shorter.

- Webcasting should be out. No consensus. If necessary,
separately tailored instrument.

* AFMA - representing content owners

- Protect signal, not broadcast content.

- Rightsholders exist long before the broadcast.

- Support FIAPF, FIAD, coalition of rightsholders draft.

- WIPO consolidated draft showed wide misinterpretation of
several key terms.

- As Argentina pointed out in Nov. broadcasting is usually
wireless.  Cablecasts are not necessarily by the same operator.
Retransmitter should not get rights.  Many countries have
mandated collective rights for retransmission.

- Missing emphasis on primary broadcasters.  Only their rights
should be covered by this instrument.

- Brazil opposes protection of cablecasters as though they were
broadcasters - they're right but don't go far enough

- Cable isn't the issue, but a proper definition of simultaneous
transmission

- On TPMs, limited rights to content may be encrypted. Several
references to public domain, information that should be available
to consumer without conditional access.  Such info would rarely
be encrypted.  But there's still a right of access control.

[ed Here we hear both the sweat of the brow argument; on top of
it an utterly unfounded supposition that public domain material
is not encrypted. It's a neat tautology: no one encrypts public
domain work unless it's been infused with so much sweat of the
brow that it shouldn't be public domain -- IOW, if it's
encrypted, it's not public domain -cd]

- Signatories should be required, per Article 24 AA, to have
adhered to WPPT, WCT, protecting copyright and related rights.

- Don't ignore commercial imperatives to encourage production of
information and ensure continued and expanding supplies of
content.

[ed.  Where's the evidence??  If it's a business model that
depends on harming the public more than benefiting that public,
maybe it's a business we shouldn't support with legal buttresses.
 Where are the basic economics? -ws]

* AIR

- The 1961 Rome Convention (1961) set out rights for three
holders: musical, phonogram, broadcasters. We reject the fact
that Rome set separate classes of related rights holders. All of
us are protected under this umbrella.

- When we started coming to WIPO in 1992, the group of experts
was discussing the updating of the Berne for authors and for the
protection offered to phonogram producers and performers because
of the need to bring protection into line with all of the changes
that had occurred in technology, particularly digital technology.

- We were told broadcast protection was a bad idea because it
could lead to difficulties with other draft treaties, so we
decided to wait.

- 1996, the internet treaty was decided upon. We updated
protection of other holders of neighboring rights (performers,
producers of phonograms). It was decided that broadcasters would
get an update.

[ed. They always talk about "updating." It's a much more
innocuous way of saying "extending our powers." But who can
challenge the benefits of "updating"? -dt]

- Everybody likes the treaty, except for webcasting, so let's
take out webcasting and get this treaty passed.

- Don't link broadcasting to A/V treaty.  That'll just delay
things, and there's no consensus there, nor any connection
between them.  At least he wasn't' thanked for his "concise
contribution"

* ACT -- Association of Commercial Television in Europe

- D-Day was really significant

- This is what broadcasting can do: unite viewers and let them
participate together in a great public event

- There was skill, effort and resource necessary to make that
happen

[ed to say nothing of the millions of war dead, possibly they
should be in the treaty? -cd]

- First, the event itself, or the incidents from different
locations which the broadcasters brought together are not capable
of copyright protection.

- Nonetheless, the coverage gives a narrative shape to the event.

- Since the event was being transmitted live, there is no
question of the coverage being protected as in the case of a film
or sound recording.

- Even if there was a fixation, some jurisdictions wouldn't
consider it a copyrightable, creative work.

- I suppose there would be wide perhaps almost universal
consensus in this room that the signals that transmitted that
coverage on Sunday should be protected against unauthorized
fixation.

[ed. I would suggest just the opposite, that it's the public
(including that earlier public many of whom gave their lives in
the war) who made this event significant to broadcasters -ws]

- Those who seek to limit this to anti-piracy have to explain why
the skill of a broadcaster should be less worthy of protection
than the skill and investment that a record company puts into a
successful session?

- A number of arguments have been advanced. One is that only
content providers deserve protection. This airbrushes out the
history of the Rome Convention over the last 50 years and ignores
the fact that it has never been a condition of protection that
broadcasts should have to be original. Those 50 years offer
little if any evidence that the broadcast's fixation right (Art.
13 of Rome) has been exercised to the detriment of other rights
owners.

- Finally: there is the unworldly view that broadcasters should
be above the vulgar consideration of money. I speak for
commercial companies with shareholders who sometimes operate pay
TV services and who are appalled that the treaty has no
protection against unauthorized decryption. It is a general truth
that we all have to have a source of income to pay for our
services.

- I'm not embarrassed by the fact that my members turn a profit,
just like record companies]

[ed. Straw man arguments are convenient. -dt]

- Why should my members not be able to exploit the events of last
Sunday's broadcast? Why not call the free-riders my members
subsidize "pirates?"

[ed. talk about exploitation -ws]

* ABU

- Members are in 53 countries in Asia-Pacific region.

- I also own an FM station and low-powered television station in
the Philippines.

- Regional broadcasters have been coming here forever, describing
a litany of actual experiences where traditional broadcasters'
signals were exploited without consent.  Interventions,
presentations at regional meetings, distribution of proposals and
explanations, etc.

- These were presented in meetings with government groups and
local government officials.

- Webcasters and cablecasters are getting a free-ride on all our
lobbying

[ed. This should be read as: If we had gotten this treaty when we
should have, there would be no VCR, no tape recorder, and
certainly no TiVo. -ws]

- Protection should only be granted to traditional broadcasters
who have presented their name for protection.

- Broadcasters are only seeking updated rights, and not to the
detriment of rightsholders.

- To NGOs: Thank you for recognizing that this is about
protection of the signal, so we can continue our mandate of
public service, including education and access to information.

- Fidel Ramos: Radio and TV helped restore democracy to the
Philipines

- Unlike new forms of broadcasting, traditional broadcasters
provide services to the public free of charge.

- After 10 years of work traditional broadcasters believe there
is enough consensus to schedule a diplomatic conference next
year. We appeal to this body for a fair deal for broadcasters.

* CISAC and BEAM

- 3 general principles:

    1) At stake is appropriate means by which broadcast orgs can
    protect their legitimate interests. We're heartened that many
    delegates think care should be taken in delineating
    broadcasters' rights, so as not to prejudice others' rights.
    Obvious lack of creativity in broadcast should restrict the
    protection granted by this IP instrument.

    2) Heartened by para 13 of introductory notes; importance of
    insuring that broadcasters not be more protected than
    traditional rightsholders.

    3) Delegates have consistently, clearly expressed preference
    for excluding webcasters.  We are not aware of important
    divergences necessitating inclusion of alternatives --
    exclude the webcasters.

- 3 specific points:

    1) preamble suggests benefits to authors, performers,
    phonogram producers.  Don't think members of creative
    community see those benefits.

    2) Alternative A to Art 1: why is this limited to intl
    conventions protecting performers and phonogram producers?
    Other intl conventions are mentioned only by implication,
    please make it explicit as in alternative B

    3) Article 1(2): Like the principle, want clarification: how
    will this not effect underlying rights? We suggest that the
    need for the auth of the underlying rights holder does not
    cease simply because you've got the caster's permission.

[ed: This won't help in the case of copyleft -- you've got the
artist's permission but you need the caster's]

- Creators don't hate broadcasters, but we should protect their
signals while respecting over 100 years of IP protection.]

* NAB. National Association of Broadcasters.

- 1. Continued concern re balance of rights.  Nothing is designed
to affect others' rights. The preamble says so. The analogy b/t
the content and the signal is not unlike the seed in a kernel of
corn or a grain of wheat surrounded by the chaff.

If copyright holders want to distribute their material by other
means they can circumvent the broadcast process and this treaty
is not applicable to them. But if they decide to be part of the
broadcast system, we become part of the process and are entitled
to protection against the exploitation of the signal.

This has nothing to do with the content.

[ed: IOW: if you don't like it, don't broadcast your content.
We're doing you a favor here. All your base, therefore, are very
much belong to us. -cd]

[ed. The broadcasters continue to hit a strawman. Few are
challenging the premise that any powers should be granted. We're
challenging the extension. -dt]

It's true that some compulsory license schemes don't give
content-owners control of inclusion in broadcast signal,  but
that's a problem with national law and compulsories, not with
this treaty.

- 2. Should this be an antipiracy treaty? Should we eliminate
rights in the name of limiting this to treaty? Why aren't the
rights to prohibit enough?

I agree with the delegations who say that this should be forward
looking, a 21st century treaty.

Most broadcasters have one channel and one revenue stream,
available free over the air. They're in competition with
multichannel delivery systems that have hundreds of channels and
multiple revenue streams and are not available to the public
(i.e. cable systems).

We know that broadcast is good for cultural enrichment, etc.

If you want to continue to recieve this kind of service and have
continued viability in the future given the competition we face,
broadcasters must have the flexibility for alternative business
models that include the [string of rights] of their broadcasts.
Again, this is not at the expense of content owners. If there is
going to be exploitation at the backend that includes our
signals, then we need, and we are not ashamed, that we may
continue to need that kind of compensation at the end of the
chain.

[ed. Ah, the old, you'll lose free-to-air content if you don't
protect broadcasters.  We hear this a lot in the U.S. broadcast
flag proceedings. -ws]

As examples, I submit the World Cup, the Superbowl. Very
interesting events, but tens of millions of dollars of
broadcasting rights submitted to these organizations that make
these events at all viable.

If, for instance, in those settings there involved a joint
arrangement that there needed to be agreement on the signal and
the content, I'm trying to imagine someone who wants to make
copies. They obtain rights from the Olympic committee. Then they
come to NBC, and they offer to provide a right to prohibit. I
suggest the entity that engages in that negotiation will not have
a clue what an authorization to prohibit means.

- 3. Why do we need fixation, reproduction rights and
distribution rights? If we have the right to fixation but not
reproduction, we're screwed if we come across a warehouse full of
pirated reproductions. If we catch a street vendor and we don't
have the right to distribution, this is no help.

- 4. Removing article 16: There's a measure of fearmongering and
conspiracy of obfuscation in some corner of this room.  It's
claimed that TPMs will affect First Amendment rights, will impede
education and libraries.

[ed: yes, that's it, we're just conniving conspirators of
obfuscation.  Help, we've been uncovered. -ws]

The information is being distributed by the transmission. in
almost all jurisdictions, copies are available for timeshifting.
In most jurisdictions copies can be made in classrooms and
libraries. What we submit is not needed to continue democracy is
providing opportunities to make massive numbers of copies.

[ed. then provide a personal use exception -ws]

- 5. Art 24, we oppose Alternative AA. Each treaty should be
judged on its merits. There is no similar nexus between the WPT
and WCCT.

- 6. This is the eleventh session, 6 years, 10 proposal, regional
conferences in Manila and Cancun [which non-commercial NGOs
couldn't afford to attend, most likely -ws]  Those in the back
corners of the room [ed: eg, EFF, etc -cd] should have been at
those meetings, they're too late now.  Sorry, missed your chance.

* Public Knowledge

- Thanks for the opportunity to make this *brief* intervention

- PK's analysis of the text is available outside this room, and
we signed onto the alternative mentioned earlier by IMMF and EDRI

- Will not repeat IMMF's comments on appropriate focus on signal.

- I wish to highlight the comments of Chile and India

- Focused attention on the vital need to ensure that the rights
given to broadcasters don't diminish the rights of copyright
holders and public access to information

- The current language doesn't respect the pleas of India and
Chile, nor does it follow on the preamble

- Treaty needs to respect personal use and access to knowledge

- While we support prevention of signal piracy, this can be done
without harming content owners and the public.

- As Brazil noted, the fact that some treaties use certain
language does not mean that this body cannot reconsider the use
of that language, especially when it will create serious harm and
take us a step back.

* EBU - European Broadcasters Union

- Short discussion this morning indicates governmental consensus
on all major points.  I have 4 brief points.

1. As was said this morning, [i.e., we lobbied effectively]
broadcasters are locomotives of economic social and cultural
development. Update existing signal protection under Rome
convention.  Anyone who imagines that protection for broadcast
will restrict the public domain confuses signal and content

2. The right to prohibit (as opposed to the right to authorize)
also confuses signal and content

-What if there were only a right to prohibit.  A potential
licensee has a license to the content, would you as broadcaster
prohibit?  [ed. sure, why not, if you've said you need the right
to authorize, isn't that the same choice to you? -ws]

3. We need to combat piracy, the same way that the 1996 treaties
were supposed to

4. Has there ever been such a large number of treaty language
proposals before any other diplomatic conference?

* AIPLA. Association of Intellectual Property Lawyers of America.

- Representing 16,000 IP attorneys. [ed. not this one -ws]

- Want to address article 16 and TPMs

- We've had these in the US for some time. During the past
several years, more copyrights and more patents have been
obtained than ever before.

- These measures have not directly or indirectly hurt creativity
or the protection of content.  There has been no stifling on any
large scale at all.

[ed. Define "large scale." -dt] [ed2.  It clearly doesn't include
the hundreds of EFF members who submitted complaints in the
second triennial exemption hearing, or the thousands who have
supported HR 107, the Boucher-Doolitle DMCRA. -ws]

- In 2000 and again in 2003, the US Copyright Office held
extensive hearings and determined that no further exemptions were
necessary

[ed. hmm. Several exemptions were granted, which couldn't even be
granted under the treaty's proposed language, which doesn't
permit extra exceptions. -ws]

- In our experience public domain and fair use have adequately
protected consumers and public at large

* ASPI - Sao Paulo Association for IP

- We need to enhance protection of broadcasters

- The rights this proposal affords to cablecasters and
broadcasters are quite alarming

- Webcasting and cablecasters can't be classified as broadcasters
-- they don't have the same social role as broadcasters

- There is a need for a more profound analysis of the issues here

- There is a human-rights interest in balancing the rights

- Thanks to the other delegates for discussing copyrights and not
just investment-based concerns.

Chairman: We'll have a very different day tomorrow. Advise the
delegates to pick up every document and study them. That makes
the process more credible.

The floor is still open for government delegations to return to
substantive issues after having heard the IGOs and NGOs.

The next stage will be to enter into discussion on further steps.
Tomorrow morning I will make available a draft set of
recommendations that should reflect, tentatively, the state of
the art in the deliberations. I will try to formulate a
description of the progress. We are well advanced but of course
there are still many questions to be discussed.

That set of conclusions should include an element that should
refer to the general assembly next Sept/Oct. The assembly should
be informed and some kind of decision should be sought from the
general assembly concerning the continuation of the work.

It appears that further work is still necessary on the level of
this committee. Tentatively I will propose that there should be
another session in this committee dealing with broadcasters'
rights.

A revised consolidated text would be prepared. Some elements
perhaps in the light of this discussion could be deleted. We
don't know yet what could be added. I will try to streamline in
cases where there could be a single provision and options
removed.

The meeting should probably take place before the end of the
year, second half of the autumn season.

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