November 18, 2004 | By Cory Doctorow

Blogging WIPO, Day 2

Here's today's notes from WIPO -- what a doozy. Luckily, we had the largest-ever coalition of public-interest activsts in the building, which meant that three or four of us could collaborate on the note taking while other lobbied, prepped presentations, and stood guard over the literature table, whence malefactors unknown were regularily scooping up all the public-interest position papers and handouts and thowing them out/hiding them in the toilets. The outcome was great -- I think there's a really good chance that "webcasting" won't make it into the treaty tomorrow, which means that however bad this may be, at least it won't directly touch the Internet.

DAY 2: Broadcast Treaty

18 November, 2004

Notes by:

Thiru Balasubramaniam, thiru@cptech.org, Consumer Project on Technology
[TB]

David Tannenbaum, davidt@public-domain.org, Union for the Public Domain
[DT]

Cory Doctorow, cory@eff.org, Electronic Frontier Foundation [CD]

EFF distributed its "Letter from 20 Technology Companies" opposing the
inclusion of Webcasting this morning.

--

Chair: We'll now continue to the end of the general discussion, and then
I will propose a work program for the rest of the day.

Zambia: Chair, congratulations on your election.

Thank you Egypt for making an inspiring statement.

It was also inspiring to hear about meetings held by delegations with
their stakeholders and the enthusiasm for supporting broadcasters as
soon as possible. Let's clear up all the remaining issues this week.
Let's go for at least three issues.

Perhaps we could have regional meanings as soon as February next year.

[CD: Regional meetings are viewed as a means to divide up the opposing
sides here, by separating, for example, India and Brazil, and
negotiating with them one at a time in a room filled with heavily
influenced national broadcasters. It's also likely that fewer "civil
society" NGOs will be able to attend these and give the other side.]

Let us recall that the general assembly requested this committee to
accelerate its work with a view to approving a diplomatic conference.

We need leadership from our big trading partners to motivate delegates
like mine.

We fully understand the importance of new countries like webcasting and
simulcasting in some countries. However in my country these issues are
not ripe for legislation and we would consider it counterproductive to
consider how these technologies would develop. We do support including
these issues in the treaty. Members like our country need more time to
understand these technologies. To do otherwise would put logic upside
down.

In my country the broadcaster is the most important means that our
people have of sharing our culture. The broadcaster is a motor of
development and has a key responsibility in insuring social cohesion. We
see this treaty as a central component of development. The time has come
to move this process to a positive conclusion.

China: This revised consolidated text has shown lots of flexibility and
provided a good basis for our discussion. Thanks to the secretariat.

The Chinese delegation will actively promote the progress of meeting,
following the principles of justice and reasonableness. We want to
protect not just the interests of inventors, but also the interests of
the general public.

Between the developed and developing countries, there are many many
differences and gaps, economic and social. Therefore we should work hard
to reduce the divergence and increase our consensus.

This is the 12th meeting to formulate protection for the broadcasting
organizations. This new text is a supplement to the Rome convention. Our
divergence is greater than consensus. There are many important questions
still to discuss.

On the scope of protection, the protection of cablecasters is reasonable
because this is not very different from the wireless broadcasting
organizations.

On webcasting, this may be reasonable, but to reach consensus and
establish a treaty this will cause difficulties. For most countries,
including China, the immediate problem is not how to protect the rights
of the webcasting organizations. Rather the question is how to regulate
their behavior. I can't speak about other countries, but I feel the
problem we have is not that Chinese webcasters' rights have been
impinged upon, rather they have impinged on the rights of other
performers, producers and authors. Therefore for China, our immediate
problem is how to regulate their behavior. We suggest the standing
committee should leave this question aside and not try to force it into
our new treaty.

On giving broadcasters exclusive rights, the rights of the broadcasting
organizations is a question of the limitation or prohibition. We can try
to look to the Rome convention, which has been in effect for 30 years
and has many members. China is not a member of the Rome Convention,
however, when we formulate Chinese law on copyright, we have taken Rome
into account.

We believe the reproducing rights should be limited. The consolidate
text has expressed this idea. We believe this is a limited right. This
right should only apply to...? We have reservations on this point.

On technological protection measures, some have pointed out that this is
not a question of broadcasting signals. On this question we cannot copy
directly the WPPT. We need more study on this question. If the control
is so strict, it will affect the communication of information. So we
should study this further.

In our earlier discussions, we and many others have raised another
question, the rights of the performers. This question is the reason why
no consensus was reached during the last diplomatic conference, but we
can't say it shouldn't be discussed further.

Some countries have raised the question of folklore. These questions are
closely related to the protection of the rights of the broadcasting
organizations and perhaps our standing committee should pay more
attention to this question.

Togo: Thank you Chairman for you skills and consolidated text.

On webcasting, I believe we need an in-depth study.

We think the time has come to accelerate work as required by the general
assembly so that broadcasting organizations finally have an
international instrument to be better protected against piracy of their
signals and also take into account the protection of other rights. On
many positions there is a certain degree of convergence.

Outstanding issues can be resolve in the present session or in the
rounds prior to the convening of the diplomatic conference, or even in
the diplomatic conference itself.

The developing countries are showing extraordinary growth rate in the
broadcasting sector. Broadcasters participate in cultural development
and the development of our countries. They require effective protection.

My delegation would like regional consultations, and perhaps the
committee could set a date for such a conference.

Kenya: My delegation fully supports the statement by Egypt on behalf of
the African Group.  My delegation also fully supports the statement by
Brazil on the Development Agenda.  We take note of the fact that these
negotiations have dragged on for over 7 years.  We should avoid
celebrating a decade of these negotiations.  There is enough convergence
on the substantive issues to warrant progress.

Australia: Australian law already provides for most of the Rome plus
protection proposed in the draft treaty text.

The nature of protection of pre-broadcast signals needs reconsideration.

Assimilation of webcasters to broadcasters raises issues. For instance,
broadcasters are licensed in Australia and as such they have public
obligations under regulation. As previous speakers haven noted,
webcasters in relation to their countries are not subject to the
obligations imposed on broadcasters. For this reason alone, and there
are others, we think protection of webcasters needs further and separate
consideration. We would participate in separate discussions.

Argentina: We need to have an agreement that will stop piracy of
signals. We will take the floor again on specific points when we come to
them.

Nigeria: We broadly support the work of the committee and pledge our
support. However, making progress for its own sake is not satisfactory:
this is an evolutionary process. We're taking measures to digest and
appreciate issues  before moving forward. We want to support the Africa
group's points that require further discussion. In light of that, we
have recommended to our capital to draw their attention to matters of
importance to us for thorough examination before definite steps are
taken. We want to see a final outcome achieved here and that it reflects
the interests of all parties.

Azerbaijan: We believe that the revised text is a well-balanced document
that can be used as the basis for adopting a treaty.

Chair: We will move now to specific issues.

[CD: The chair has foreclosed on the presentation of general statements
by NGOs!]

We don't have time for a full debate of every controversial item.

We may put further elements in square brackets. We've already bracketed
web elements and an element concerning technological protection
measures. The square brackets mean the elements mean they are in one or
another way out of the text.

Chair: We will first visit those areas which are less political in
nature.

Alternative V, which has received limited support.

Then paragraph 4, beneficiaries. Article 14, L&E's, alternative T.

Higher level of difficulty: - Article 1, relation to other treaties. -
Eligibility for becoming a party. - Article 16 proposal to delete it

Highest level of difficulty: - Article concerning acts after fixation -
Alternatives for protection

what do you mean? - Article 7 - can we delete the whole article? -
Article 2 definitions - web has to disappear is my tentative thesis

Morocco: We want something clarified: are we going to be examining the
articles article-by-article, or are you presenting us with a group of
articles on which to express our views. Will the articles that receive
support be merged to form a temporary draft while the others are set
aside.

Chair: The plan is to take a look at articles with alternatives in the
text, which are based on differing written proposals by government. The
other articles had convergence from several governments. By this means
we can take the temperature of the room on each controversial clause. We
will deal with the articles one by one, except for arts 9-10-11-12.

There will be no coffee break this morning.


[Powerpoint: 1. Article 16: Technological Protection Measures

- Alt V - Proposed to be deleted

- Alt W - selected (no such provision)]

Brazil: You have told us that you would accept "silence" as concurrence.
Not everything in the alternative text reflects everything proposed to
this committee. In fact, last time we proposed to delete this entire
article, and we think this proposal should have been deleted as an
alternative. In fact we were told by you that it would included as an
alternative in the revised text in the course of the discussion we had
on the floor.

We have a basic concern with the way you are approaching our discussion
on this article because you're basically asking us to tell you which of
these two proposed alternatives, the ones you have listed on the screen,
would be preferable. The fact of the matter is that we see little point
to actually asking that question before addressing the more fundamental
question, the much more important question of whether this article
should be present in the treaty at all, or not.

My concern is that in fact you will interpret expressions of preference
for any one of the two alternatives as somehow an indication that the
maintenance of this article counts on the support of members of the
committee, and Mr. Chairman we cannot agree to proceed on the basis of
that assumption.

Chair: Thank you. Question 6 will be whether to strike article 16
altogether. First, though I want to see whether we're going to strike
article 16 v or w.

India: We don't want to come to an unsatisfactory agreement. Please
clarify: we thought you were going to take up those articles with more
than one view (i.e. alts v and w for article 16). Our recollection of
paragraph one as it emerged from the last session was that that, too,
should have had an alternative: we'd have x (the current version) and y:
no such provision. We clearly recall Brazil's opposition to Article 16. 
There should have been two alternatives for paragraph 1.  One of them
would read, "No such provision".  We were surprised to see that this
alternative was not provide.

Chair: Our method -- now questioned -- was that all aspects that were
found in the *written* proposals were in the articles. But oral-only
remarks are reflected in the explanatory comments. We can change this --
it would be easy.


Russian Federation: The first paragraph is a general statement and the
second paragraph makes these statement concrete.

Chair: There is no need for the rest of delegations to talk about
Article 16 more generally. We are only talking about Alt. V.

Argentina: While we haven't received much support for our proposal,
there is a much more substantive issue at stake here. No one actually
opposed Alt. V and there was even some support for it. Without
additional instructions and without having the general context for what
will happen with this article, it's difficult for us to tell you what is
final. We are in fact negotiating and this is not our final word. We
haven't heard anyone opposing this, but if there is anyone opposing it,
we would like to hear the reasons.

Chair: We will leave this in square brackets for the next draft.

Switzerland: At this stage I'm not in a position to give any final reply
and I would like to reserve our position. We are in favor of a provision
on technological measures, but the question is how this would be
included.

Chair: Everyone can add their comments on this later, or after the
meeting.

Senegal: Thank you, but I waive my right to the floor.

Chair: [Powerpoint: 2. Article 4: Beneficiaries of Protection - Alt. H
proposed to be deleted - Alt. I selected (no such provision)]

The question here is mainly directed to the EC. The effect of that
element is to narrow the scope to cases where only both headquarters and
transmitter are in the same country.

EC: Since we proposed this and there seems no proposal to support this
from other state, I can't claim overwhelming support for this provision.
We proposed it because it reflects the situation under Rome. I think our
8 member states have made use of this provision under Article 6(2) of
Rome. We have a coordination meeting at 2pm. We would like to take a
little bit more time before we take a more definite view. We may need
this provision to reflect the actual state of play in the union and we
will discuss this at 2pm with our member states. We may come back to
this in the afternoon.

Chair: I hope countries will show flexibility.

Russian Federation: As regards Alt. H, we believe that it is subject to
relevant drafting of Art. 6(2) of the Rome convention. And if we reject
the application of 6(2) then we need to redraft this and have a
reservation that contracting parties shall not apply 6(2) of the Rome
convention. Otherwise there may be a contradiction in the text and we
would not like to see that.

Chair: Thank you for your remarks of a legal nature. OK, let's look at
Article 14.

[Powerpoint: 3. Article 14: (Limitations and Exceptions) - Alt. T
proposed to be deleted - Alt. U selected (no such provision)

[DT: Alternative T is a crucial clause. Without it there is hardly any
scope for exceptions. Even with it the scope is narrow. The Public
Knowledge report from SCCR 11 has a good section on this issue.]

United States: This proposal was included in our original text because
it reflects our domestic legislation and reflects widely accepted
provisions. While this is very important to us and to our public
broadcasting system, it's possible that these provisions might be
protected under an appropriate application of the 3-step test. If there
were an understanding that the limitations we have in favor of public
broadcasting entities could be exercised under the 3-step test, we could
agree for this provision to be deleted. However, we need to think a bit
more about this and determine what sort of flexibility is present in the
representations of other delegations.

Egypt: My delegation is keen on Alternative T. We are keen that a
grandfathering clause should be in the text to allow contracting parties
to maintain a limitations and exceptions related to retransmissions. We
agree with U.S. that we need more time to measure the flexibility of the
membership. We would like this alternative in the next version of the
text.

Chair: Subject to subsequent comments, Alternative T will be kept in the
text.

Chile: We request that other members envisage the possibility of
including additional exceptions including transfer rules as they exist
in the Rome convention.

Chair: My provisional immediate reply would be that this new instrument
should not affect existing instruments. We would not make any carve outs
or change the Rome convention.

Chile: We think it would be preferable to include in Art. 14 the
specific request to provide for exceptions in cases of broadcasters
which already enjoy the provision of Article 15 of the Rome convention.

[CD: How can you update the rights of broadcasters without effecting the
previous interests that set out the rights of broadcasters?]

Russia[?]: I believe there should be a universal application for all
parties, and we should go with the 3 step test.

Argentina: I reserve comment on alternative T -- I have been instructed
to reiterate our interest that 14.0.1 be kept.

Mexico: We believe that paragraph 1 of article 14 should be incorporated
in this new version, including the sentence, "and the protection of
related rights."

Chair: Group 2

[Powerpoint: 4. Article 1: Relation to Other Treaties - Alt. A proposed
to be deleted - Alt. B selected and clarified]

Senegal: We believe Alt. B would be the proper one.

Chair:

Russia: We support Alt. B because it is more flexible and will be far
more acceptable.

EC: The pain level is starting to increase, but this is helpful. We
quite like Alternative A.

[CD: Alternative A is very narrow, and says that this treaty won't
override Rome and the WCT -- alternative B says that this treaty won't
override any treaty]

Egypt: We favor Alternative B which has just been supported by the
delegation of Senegal.

Morocco: We support Alt. B?

?: We support Alternative B.

Columbia: We support Alternative A.

Chair:

?: Are paragraphs 2 and 3 included under alternative A or not?

Chair: Paragraphs 2 and 3 are clean text and will probably be in the
final product.

India: We support alternative A. It is clearer and spells out the whole
scope of our obligations, while B is more open and hence vague.

We have questions about para 3, since it seems clear that adopting any
treaty here will prejudice rights and obligations under other treaties.
For example, limits and exceptions under other treaty may be broader
than those in this treaty.

Chair: We are only talking about paragraph 1 now. Paragraphs 2 and 3
come from the 1996 treaties.

Alternative A is para 1 is narrower. Its scope is Rome only.

For the moment it seems like we can not delete one or the other.

Ukraine: Alternative B is more effective and more logical -- it's more
flexible. It includes all other copyright and related rights treaties.

Australia: Perhaps we could build in a reference to Rome in alternative
B.

[CD: No, that doesn't answer the problems of the A supporters, who want
to cabin the list of sacrosanct treaties]

Chair: Elsewhere we have a non-exhaustive list of treaties this can't
overstep, that includes Rome.

[CD: Right -- the point of A is to limit the sacrosanct treaties, not
render all treaties inviolable]

Mexico: We like alternative B because it fits better with our national
law and provides clearer protection.

Togo: We support alternative B, because it proposes a broader safeguard.
Regarding alternative A, confining ourselves to Rome means that states
that aren't Rome signatories won't have to act in conformity with it.
Alternative B is broader.

Chile: I understand India's concern.

India: We can use logic to understand the law, even if we're not lawyers
[bwahahaha]. I don't understand how can there be contradictions in
obligations: you could have obligations for treaty 1 and obligations
under treaty 2. Your obligation set may expand, but how can it conflict?
This is meant to underscore one's obligations, and nothing can change
your existing obligations. My problem is with paragraph 3: what 3 says
is that if there is a right -- held by a broadcaster etc -- under one
treaty, that those rights will not be abridged by another treaty. Very
often that is the case, and I don't see how you can get out of that. We
need to look at 3 more closely. A state might abridge the rights of a
party to Rome because of the corresponding paragraph under article 14
and that may not be available to the party under 4. Therefore a
broadcaster might feel shortchanged under one or the other treaty.

Chair: Paragraph 2's objective is to say that this treaty doesn't touch,
at all, the subject of copyright and related rights treaties that deal
with the programs. The rights of broadcasters cannot touch those rights
-- they are out of the scope of this instrument.

Islamic Republic of Iran: We support alternative B -- it's more
compatible with our law. We reserve comment on it.

Sudan: Chile's proposal is good -- and deserves all our attention. The
African group position is that alternative B is better.

Chair: It seems that Alt. B receives broad support, Alt. A also receives
support. I can't say whether it's more limited or not. I could not draw
any conclusion on this.

After lunch we will tackle Art. 24, Alternative AA; Article 16, proposal
to delete all article; Arts. 9, 10, 11, 12, footnotes and 2-tier
protection; Art. 15, 20 or 50 years term; Art. 7, delete article on
communication to the public; webcasting and simulcasting.



Brazil: We would like the NGOs to speak after each cluster. We're
disturbed to hear that NGOs' documents were trashed. We petition the
secretariat to address this and prevent it from recurring.

India: I am quite alarmed by the fact that documents by produced by
public interest NGOs were found trashed.  The democratic process has
been thwarted by these type of actions.

The other issue is that, as mentioned by Brazil, we attend a lot of WIPO
meetings and the organization is quite open in allowing participation,
in which Governments, intergovernmental bodies and NGOs are given a
chance to speak in order. We've yet to hear from the NGOs on this --
when will this happen? If it happens at the end, it will serve no good
because it will arrive too late to inform our positions on this subject.

Chair: This isn't a marketplace, people from the street aren't allowed
into these halls. Security only allows professionals with credentials
in. Now it appears that one of our number is doing not so well-educated.
Secretariat, how can these people solve their problem?

Secretariat: The table is left for delegates to put their different
papers on the table. The rule is that we cannot copy papers that you
bring. The Brazilian/Indian issue regarding throwing away documents was
brought to my attention right before lunch and I've talked to conference
services who were not aware of it and are very concerned about it and
they will do their best to ensure that this won't recur. This is
unfortunate. Does legal counsel have any comment? I ask all of you here
to follow the procedure that we have had over the years.

Chair: All of the documents presented by parties here are most welcome.


Algeria: With regard to the point raised by Brazil, in my view, priority
should be given to government representatives since we have to
accelerate our work.  We condemn these actions if they were deliberate.

Senegal: Allow me to thank Brazil for making an interesting point about
the activities of NGOs. I think this was made in a totally constructive
frame of mind. However, while thanking the distinguished delegate of
India with regard to the ranking of speakers, I think we have a
tradition in our debates that delegations take the floor before NGOs
take the floor on major issues. We've always appreciated the
contribution of NGOs because among the NGOs that are there there are
organizations who defend the rights of rightsholders, and we also have
organizations defending the rights of users. We also find
representatives of civil society. And who is that, it's you and me. So I
think there should be no difficulty. We need NGOs, but in such a body we
should follow procedures. This will enable us to save time. I think in
the past that we have made important progress through the contributions
of NGOs.

With regard to this document business, I don't know what happened but
I've never had problems and just this morning I took documents that were
lying on the table. If such a regrettable purpose was perpetrated, I
think that this must be due to a misunderstanding and I sincerely hope
this will not occur in the future.

New Zealand: I would like to express support for the comments made by
the delegates of Algeria and Senegal. The comments of NGOs are no doubt
extremely valuable, however given the excellent progress made this
morning in working through some of the substantive issues, we think
priority should be given at this stage to the government delegations.

Chair: We should finish the round of discussions on those questions
formulated. These questions are extremely relevant if you think about
where progress can be made and has to be made. The shorter that debate
will be, the sooner the NGOs will get the floor. This is so short that
everything will be fresh in the minds of everyone. If we can get to the
end of this round the NGOs will be given the floor immediately. If we
cannot finish this evening then of course that will be the first order
of business tomorrow morning. We cannot break and change the order of
the business because as you see, any round of opinions and interventions
will always take time.

Now that it's 4pm, we have to shorten debates compared to this morning's
debates.

Brazil: If we want to make progress in our discussions we also think we
should try to make sure we start beginning our meetings on time and not
40 minutes late which I think has been a record this week. We also don't
appreciate the fact that our coffee breaks are being sacrificed.

Chair: Article 24 deals with the eligibility for becoming party.


5. Article 24: Eligibility for Becoming Party)


[Powerpoint: 5. Art. 24 (Eligibility for Becoming Party) - Alt. AA
proposed to be deleted - Alt. Z selected

- consequently: Art. 25., Alt. BB selected]

[CD: Alternative AA is a requirement that signatories also come on board
the WIPO Internet Treaties, WCT and WPPT. It's bad because it's a back
door into forcing countries that have decided for good and sufficient
reasons not to sign onto those treaties, which contain lots of bad stuff
like notice and takedown and anti-circumvention]

Egypt, speaking for Africa: We support alternative Z -- there should be
no restriction on joining the treaty, alternative Z will make it easier
to get signatories.

U.S.: The U.S. is not in a position to accede to the removal of AA. Many
delegations have expressed concern over potential conflict between
protection for broadcasters and other related rights holders and
copyright holders. This has precedent in Art. 24 of the Rome convention,
and is essential that the rights of authors, phonogram producers, and
performers are not adversely affected by this new protection for
broadcasters. It's also consistent with the position that neighboring
rights holders shouldn't have more rights than copyright holders.

Democratic Republic of Congo: We support the African group's position in
favor of alternative Z

Mexico: We support Z. We note with concern that signing this might be
dependent on the WCT and WPPT which would be to the detriment of this
treaty's coming into force and could jeopardize the treaty.

Islamic Republic of Iran: We support Alternative Z. Alternative AA is
contrary to the freedom of determination of states and is inconsistent
with 1(b) para 3.

Syria: We support Alternative Z.

Zambia: We know that our big trading partner likes consensus, and we
urge the only party on the other side of this issue from everyone else
to be flexible.

Chair: Alternative AA could be put into square brackets. I hesitate to
do this, but when we see clear majorities it may be appropriate.

EC: For us this isn't much of an important issue. I hope that when we
get to a diplomatic conference there will be more members of the WCT and
WPPT, and Alternative AA will become less and less important. As the
U.S. has reminded us, the linkage to other rightsholders is an important
and sensitive issue. But as far as we're concerned, it may be
appropriate to bracket.

We have some flexibility to offer on beneficiaries of protection. We are
ready to look more favorable to alternative B in section 1. However, we
would probably need more guidance from our legal experts. What would be
the effect of using a different formulation from that in WCT and WPPT.
We hope legal counsel from WIPO could give us further guidance. We need
to reflect, but a priori I think we need some flexibility here. I'm
happy to say I think we can put Alternative A between square brackets.

Chair: The legal counsel is ready to take the floor.

Legal counsel: The practice in the past was to make it a condition of
Paris or Berne in order to accede to a new treaty. But in the more
recent practice it has been the other way around. It has been the
formulation you currently see in Alt. Z. The current practice is that
you only need to be a part of any WIPO treaty. Currently there are 48
states signed on to WCT and 45 for WPPT.

Morocco: We prefer alternative Z.

Chair: This suffices for Art. 24.

India: The argument put forth by the U.S. does have merit. We are
proceeding to grant additional rights to the broadcasters potentially at
the expense of performers and copyright holders. In the past we've
expressed concern that the underlying rights holders rights should not
be trampled on. And that is the consequence of Alternative Z.

[CD: This can be remedied by controlling the grant of rights to the
broadcasters -- if those rights are strictly cabined so as not to
overlap with copyright, the problem is solved.]

Chair: It's clear that we shouldn't trample on anyone else's rights.

[DT: By the chairman's logic, this treaty should clearly not go through.
Even if WPT and WCCT were accepted, performers would still suffer, as
would those who produce under Creative Commons, copyleft, and those who
release material into the public domain.]

6. Article 16 (Obligations concerning Technological Measures)

Chair: Brazil has proposed the deletion of all of article 16, for
reasons set out in paragraph 16.07. I propose not deleting this.

Switzerland: We want to retain 16, it's our view that protecting TPMs
should be based on the WCT. We can support alternative W and will give
up support for V

Senegal: I want to insist on the importance of article 16. It is an
essential article and it seems to me that it constitutes the very
structure of the protection that broadcasters are asking for. It's
difficult to contemplate a broadcast protection treaty that doesn't
include a discussion of TPMs. If this document is a human being, article
16 is a vital organ.

Chile: We recognize the usefulness of TPMs for protecting authors'
rights and related rights. We're also aware that the application of past
treaties with similar provisions have given rise to problems regarding
the use of works in the public domain and the legitimate use of
protected works. We need to find a way to be sure that these measures
don't unduly effect the public domain. Therefore we continue to support
Brazil's proposal to not include article 16.

Zambia: We would like to offer a compromise approach. After hearing two
differing views -- and maybe the legal counsel will assist us -- our
understanding is that Article 16.1 appears to be similar to the TPM
regime in WPPT, which allows members choice. If that's the case then
this might be a good compromise to keep 16.1, which is between deleting
the whole article and on the other hand 16.2.

[DT: Article 16, Para 1, reads: "Contracting Parties shall provide
adequate legal protection and effective legal remedies against the
circumvention of effective technological measures that are used by
broadcasting organizations in connection with the exercise of their
rights under this Treaty and that restrict acts, in respect of their
broadcasts, that are not authorized or are prohibited by the
broadcasting organizations concerned or permitted by law." That word,
"shall," makes this mandatory.]

Syria: We support Brazil's proposal. It's very important for us to have
access to information!

India: We were engaged in intensive consultations involving all levels
of government and stakeholders regarding this. This article has been of
great concern, for obvious reasons. There is a recognition that with the
evolution of technology we will need to address the implications it has
for protection. On the other hand we have to respect the public domain.

Article 18 of the WPPT has a similar set of concerns. And while the harm
to the public domain might in some ways be less in the case of the
corresponding WPPT article, the potential harm of Art. 16(1) is probably
much greater. We recognize that there is a need for something, but we
are still in the process of examining all the implications and points of
view that stakeholders brings to these discussions, and for the time
being we would not like to rule out the option of having or not having
Art. 16. We are not in a position to take any position on this right
now.

Algeria: We want to keep Article 16.

Islamic Republic of Iran: We are still consulting with our capital on
this and we look on it with reservation.

Morocco: We attach great importance to TPMs and think we should keep
article 16 for many reasons, mainly that the lack of such an article in
a new instrument could endanger much of the protection that we wish to
guarantee. This article is also in keeping with our national
legislation.

Russian federation: We think it's extremely important to keep Art. 16
but we could imagine recasting the wording.

Chair: Before tackling the next set of questions, it seems that a new
version of Article 16 maybe should be presented in three ways. Either
with paragraph 1 and alternative V, with paragraph 1 and no alternative
V, or with Brazil's proposal for no article at all. Whether we present
the first option depends on Argentina's position.

[Powerpoint: 7. Rights Concerning Acts After Fixation

Article 9 -- Right of Reproduction

Article 10 -- Right of Distribution

Article 11 -- Right of Transmissions Following Reception

Article 12 -- Right of Making Available of Fixed Broadcasts

Suggestion: make possible two-tier level of protection as in footnotes]

Switzerland: I welcome your efforts to reach a compromise, however I
have some questions about the way of approaching this and the effect of
harmonization because this is really the heart of the treaty. I have no
definitive views on this but I do have a lot of questions and concerns.

Chair: I understand Switzerland takes a reservation on having the right
to prohibit side-by-side with the normal exclusive right.

Russian federation: We support you proposal for two-tiers of protection.
We think we could get a consensus on this.

Chile: We don't have a definitive position.

Chair: We have to think about your remark, what is the relation between
the right to prohibit to the rights of remuneration? My immediate
response is that the exclusive rights have nothing to do with the right
of remuneration. If someone gives their consent for use, the agreed
conditions prevail and that might include remuneration. There is no
connection between this and rights of remuneration that we find in other
treaties, as in Art. 12 of Berne. This is my analysis. It may be
contested but I leave it for your consideration.

Zambia: My delegation's earlier statement was for us to move towards
harvesting at least three or four articles. For this article we clearly
think we can make a decision and move to other articles that may need
our time much more.

For instance in the spirit of compromise we think the suggestion of a
two-tier level offers a very important compromise. As I understand this
would allow all countries with the right to authorize to keep their
rights, as well as allow other countries to keep their systems in place.
I would like to urge this meeting to feel proud to make conclusions to
register achievements as we move towards things we haven't agreed on
yet.

Mr. Chair, can you appeal to our colleagues with questions to at least
accept the two-tier provision?

Chair: You have a nice way of putting things. I try to emulate it.

Canada: We like the two-tier approach and we will scrutinize it to see
what impact it might have on our private sector.

[CD: Canada hates the retransmission right because Canadian cable
operators are free to retransmit broadcasters without permission,
provided they have a license from creators]

New Zealand: Now final position but would note two points: NZ law grants
same rights to broadcast as to copyright works, without any problems
resulting; useful to maintain consistency with rights provided in Rome
and WPPT and depart from that only with good reason or need.

Brazil: Yet to have a defined position on these articles and will
reserve right to return to this question at later sessions as well as
the right to propose alternative language that is not as yet contained
in the revised consolidated text.

United States: Our two-tier approach is intended to address many
delegations' concerns over protection under this treaty and the rights
of creators and other rightsholders. The difference between our approach
and the footnotes approach is close, but the footnotes are likely to
lead to confusion. Alternative S leaves countries free to provide a
higher level of protection for those rights -- the floor should be a
right to prohibit, only.

Chair:

[Powerpoint: 8. Art. 15 Term of protection - Alt. EE proposed to be
deleted - Alt. DD selected]

[DT: Alternative EE appeared for the first time in this draft. It calls
for a 20 year term of protection, which has been the international
standard since Rome and Brussels. Broadcasters are trying to grab 50
years, Alternative DD.]

Singapore: Our position remains as it has since the 11th session. In all
respects of the treaty as discussion, our position is our proposal. We
didn't expect that the term of protection proposal would be so
controversial. We think that this right is like Rome, so we proposed its
term. We think countries should be able to choose their own terms. For
example, we provide 50 years for broadcasters.

India: We support Singapore for good reasons: there is a relationship
between the term of protection and the thing that is being protected.
The WPPT deals with content, and so it tracks the practices of
copyright. The protection for broadcasters in Rome was duly considered
and arrived at. We should take our cue from Rome, which is more relevant
than the WPPT.

Chair: Your opinion in the last session was decisive for why the 20 year
proposal was included in the latest draft.

Syria: We support 20 years per Singapore.

Chair: This way, brief interventions, are the way to register opinions.

Chile: We support the proposal by Singapore particularly since we have
not defined who will benefit from this protection.

Mexico: We support Alternative DD, 50 years.

Argentina:  We maintain our position as mentioned in the written
proposal.

Morocco: We support the term of protection that is contained in the Rome
Convention.

[DT: i.e., 20 years]

Brazil:  Brazil would like the two alternatives to be kept in the
alternative text.  We are still studying these proposals at our capital

Togo:  We think the Singaporean proposal should be studied further.


Chair: We shall consider Article 7.

[Powerpoint: 9. Art. 7 (Right of Communication to the Public) -
Suggestion: delete the whole Article]

Switzerland: I'm not sure I understood what you meant about the article
being left over from the 1950s. I think the issue is still live today,
not just for broadcasts, but for things downloaded from the internet. I
think it's rather premature to delete this article completely. My
position isn't final, but I have a reservation.

Chair: Article 7 has nothing to do with downloading or anything that
happens in broadcasting itself. This concerns making broadcasts
available in a public places where a fee is required to enter. I have
not seen such a situation since the 1950s. Nowadays we don't have
entrance fees to watch television in public places.

Australia: Our inclination is that if Art. 7 is retained, we would want
the right of reservation included in the Rome convention. We know there
is an instinctive reaction against having Rome minus, but it isn't
really, since if you include a reservation you're back to zero. We
support deletion of the article.

Chair: Having something in Rome that is not found in this instrument
would not be Rome minus. The museum piece in Rome would still be binding
on those who are party to Rome. We will have to keep Art. 7 on the basis
of this discussion.

Senegal: I'm confused: As you've pointed out, Art 13 of Rome hasn't been
applied at all. So if we look at it in terms of legal/economic value,
the result is nil. But my concern is that this exercise result in
"Rome-plus" protection. Bringing it down a level gives the impression
that this is less. My concern is that rather than considering the
deletion of this article, I would like it to be retained and then during
our discussions, let's see how we can improve it by making it easier to
exercise. At the Olympics, I was attacked by the radio and the
television that had paid large fees, and the broadcasts were being
played at hotels. There was no entry fee at the hotel. We should keep
this and look at it carefully to be sure that it can be useful, not a
museum piece.

[CD: She wants to give HBO the right to sue bar owners who throw
Sopranos parties, basically]

Argentina: We support keeping the article.


Chair:

[Powerpoint: Art. 2 (Definitions) + Art. 3 (Scope) - Art. 2 / Alt. C
proposed to be deleted - Art. 3 / Alt. E and F proposed to be deleted

- suggestion 1: Alt. D + G selected (no provisions on the web) -
suggestion 2: search another kind of solution]



It seems that it would not be possible to get broad support for this
part of the project. It would seem that including it would make
negotiation on the rest of the project difficult. It would almost block
any meaningful progress, in light of discussions in several meanings. In
the last 2 meetings we have heard growing positive interest from those
against now considering protecting webcasters in this context, in
considering this in the future, perhaps deserving a project of its own.
A document distributed by the Japanese delegation indicated this
position.

We have a proposal by one delegation to cover webcasting, we have
opposition from virtually all sides.

We have a proposal by the European Community to cover simultaneous
broadcasting and webcasting of the same broadcaster at the same time,
aka simulcasting. This would cover a broadcaster or cable caster who is
broadcasting over the air also makes the broadcasters available as
webcasts, so that they can be followed at the same moment as the
broadcast. If the transmitter were turned off, the broadcaster would
immediately become a webcaster.

Some say Webcasting deserves analysis and protection, but to be added
later, possibly in an annex or in an independent instrument.

In some years time, possibly we should extend broadcaster protection to
webcasters.

This is the most important question of the whole meeting. We must take
stock of the need for this and the willingness of organizations to
pursue it. There's a clear need and willingness to do a broadcast
treaty. We need to remove the blocking items from the road.

To propose that webcasting be covered in the body of the text would
block the whole project. There'd be no reason for us to come to Geneva
any longer.

What to do? This is like a 1000k block of concrete in the road. If we
grip it and push, will it start moving aside?

This would make life easier for us, and for Webcasting proponents.

This is already in square brackets -- the concrete has been loaded on
the train, which has a head of steam and is ready to go. The engines are
on. We should give a sign to the conductor: please go.

U.S.: I think that this is the first time that I have been compared to a
1000 ton block of concrete in the way of an archaic steam engine.  This
is a most interesting comparison. We understand that Alternative E has
not garnered much support.  However, many delegations have indicated
that this is a substantive issue.  We believe it is important to keep
this alternative in the text.  We remain very interested in hearing what
other delegations say to your proposals, Chair.

Chair:  You want to keep it in square brackets. If any innovative
proposals come up on this issue, you want us to consider it carefully
it.

Egypt: I might agree with you that it may be a block of 1000k, and we
would like to lend a hand, but this would require the help of the whole
delegation. The statement of the whole African group represents our
position on this issue. We do not find it appropriate to include
webcasting in this treaty. We are therefore in favor of your first
suggestion, Alternative D in Art. 2 and Alternative G in Art. 3.

Russian Federation: To reach a compromise solution we propose a
formulation concerning webcasting. Perhaps we could use a 2-tiered
protection system like you proposed before. We could consider the
possibility of reservation.

Chair: We could consider a two tier or even a three tier approach.  The
provision would sound like,

1) the Member States may extend protection to "webcasting"

2) Member states may extend protection to simulcasting by web only

3) Member states may not extend rights to webcasters.

Zambia:  I want to support the statement by Egypt on behalf of the
African Group. I am not sure if my big trading partner has been able to
assist you in your plea? Clearly, US, which we have good relations with,
and that everyone else has good relations with, can give us a reason to
smile and walk out at 6PM.  Please drop this proposal.

Chair: My African brother, I believe the US delegation is an a listening
mood.

Senegal: Like Zambia, I want to defuse this situation. You should never
waste time with someone who denies the truth and evidence. Webcasting is
a fact of life: concealing it is bad faith. But I would like to say that
we do have to progress. Digital broadcasting is the most important
indicator to give information about universal information. Broadcasts
are creations with producers, artists, etc. When we're in a situation
where there's no favorable environment for the lawful exploitation of
these, we will end up with many concerns about IP. This isn't something
we're overlooking: it's a new area, and we can leave the door ajar,
rather than closing it.

Chair: If you keep your interventions short, the NGOs may have a chance
to make their statements.

Japan: We want to consider Webcasting in a different instrument: not
because it's unimportant but because it requires new deliberation.

Argentina: We should delete Alternative C.

EC: I thought we crafted the simulcasting provision to go outside the
scope of the instrument. We think including simulcasting is a good idea.
We have to address the internet. We're proud of WPPT and WCT. If we fail
to address the internet in this treaty, I think there will be little
reason to call this treaty the WIPO Internet treaty, even though I think
the point of this treaty is to update it to take account of the internet
age. My children talk about downloading and the internet.  I tell them
that they should not do that.

I think the digital environment is very vital and we should try to find
a solution, and final solution now. We have come a long way, yet I
realize that we have not solved all the questions. Yet, to postpone this
to an indefinite future when we are already here, when we have the
internet, would be a mistake. I believe we should try to find a solution
among ourselves that does justice to these technological developments.
We have to be innovative and address it in a way that those who think it
goes too far do not have to follow. I think there is merit in the
Russian Federation's suggestion.  I think it is a shame that without all
this prepatory work, if we only include cablecasting.  We must find an
instrument that would embrace the digital environment.

Brazil: On Article 3, we support alternative G. We cannot agree to
include webcasting in the scope of application of the treaty. Nor can we
accept the inclusion of simulcasting. And we'd like to reserve our
position on paragraph 2 of Article 3, on cablecasting. We are not yet
convinced that it really is necessary to apply the provisions of this
treaty mutatis mutandis to the rights of cablecasting organizations.

On the subject of the future work of this committee, in all other areas
of WIPO our delegation would like to state once again that for us the
priorities for future work, which we believe are important, are
reflected in the proposal on the Development Agenda that was presented
at the last General Assembly by  Argentina and Brazil and cosponsored by
12 other developing countries. That means that any proposal on future
work, in whatever subsidiary body, any agreement to us on that proposal
will depend on its compatibility with the goals and principles of the
Development Agenda.

Mexico: We want to include simulcasting, but not webcasting.
Simulcasting is a reality, it's something we have to confront daily, and
it requires action. We repeat that it would not be appropriate to
include webcasting.

Chair: We have come to the end of the work program.

EFF CSC IP Justice IFPA EDRI UPD FILA FIM EBU FIAPF IMMF ?? NAB Japan
AIR ACT CSOC IFPI DIMA


ASBU (Intergovernmental Organization)

Thank you. We welcome your efforts & especially the preparation of the
docs. We had the opprtunity to give our views previously. I'll be brief.
Mention 2-3 points in particular. With great joy we welcomed the concern
expressed by all delgations to achieve something, and to achieve success
after all these years of study and work. The hesitations or reservations
expressed by a number of delegations concerning the lack of balance that
there might be in a forthcoming treaty or agreement, and that might be
unfair to a no. of rights holders in unfounded. On the contrary, we
think that the updating of protection and the improvement of
broadcasting comptaible with tech. developments strengthens the
protection of rightsholders.

As regards the scope of application and webcasting, and whether to
include it -- we believe there is an important difference between the
two subjects. As regards the principles and methods applied, the
protection of broadcasting organisations is linked to compatibility with
technological developments and social developments, whereas webcasting
is connected to technological innovation -- so we believe it's necessary
to separate the two subjects while stressing the importance of the
updating of a schedule on this subject, protection for broadcasting
organisation.

EFF (Mr. Cory Doctorow)

As I take the floor for the first time at this meeting, allow me to
congratulate you on your ongoing chairmanship and vice-chairships, and
express my confidence in the outcomes that we will reach with your
steady, experienced hands at the tiller.

EFF is an international digital consumer rights and advocacy NGO with
over 12,000 paying members and a readership of over 50,000.

I would like to make three brief points on behalf of EFF:

1. That the Webcasting provision is as controversial outside of this
room as it is *inside* this room. EFF today set out a letter signed by
twenty technology organizations that would be affected by the Webcasting
provision, led by Mark Cuban, the founder of Broadcast.com, the owner of
HDNet, the largest high-definition television service in the world, and
the owner of the Dallas Mavericks, an NBA basketball team. Mr Cuban is
also the owner of half a billion dollars' worth of video content. He,
along with 19 other technology executives, has signed onto an open
letter opposing the inclusion of Webcasting in the treaty on the grounds
that unlike broadcasting, where permission-free regimes are rare and
where public-domain, Creative Commons and other non-copyright works are
not often seen, the Web is full of these things, and thus extending
exclusive rights to the Web will generate far more negative effects than
when applied to the comparatively enormous and diverse group of
Webcasters. For those who are interested, this letter is available
outside the assembly room.

2. That TPMs are not coherent with the Development Agenda. TPMs allow
distant rightsholders to override national exceptions and limitations
that reflect national development policy.

They undermine the fair dealing and personal copying exemptions that
educators, researchers and other entities who are sensitive to high
information costs rely upon.

They restrict the ability of national entities to produce compatible
goods and services and tools that extend the utility of information
services that are locally appropriate.

They restrict the ability of the owners of TPM-covered goods to loan,
sell or share their property, a factor that is especially damaging to
regions that rely upon savings arising from these practices.

There is no indication at TPMs are remotely effective at keeping
copyrighted works from being circulated on the Internet -- indeed, the
lead TPM engineers for Microsoft have published an important document
called the "Darknet" paper that predicts that TPMs can *never* serve
this end. And yet, we propose to extend TPMs to new classes of works and
services, to cover works that are in the public domain, are Creative
Commons licensed, and are not copyrightable.

I would like to respectfully call upon the Chair to set aside the
controversial articles 16 and 17.

3. There is a great deal of new material to be aired in this hall. This
forum is not exhausted, and all possible views have NOT been uttered and
heard. There is much new input to be brought here from technology
organizations that will be impacted by the Webcasting provision.
Moreover, there is the vital work remaining of examining this treaty
through the lens of our new Development Agenda and ensuring that it is
coherent with the will of the General Assembly. Therefore, this is NOT
the time to go to regional meetings, but rather to continue to convene
in this body and ensure that all this new intelligence is shared among
all the interested parties.

In conclusion, I would like to inform the Chair and the delegations that
we have made two handouts available on TPMs and Webcasting, which can be
found on the table in the corridor.

Finally, I would like to respectfully ask the chair to build upon the
previous studies undertaken on TPMs and augment them with a new study
that examines TPMs in light of the development agenda.



Civil Society Coalition (CSC, Ms. Michelle Childs):

Thank you Mr. Chairman,  As this is our first opportunity to take the
floor, welcome your election.

Three points :

1. We are not convinced there is evidence that broadcasting
organizations face problems with piracy that could not be addressed with
existing treaties

We believe the proposed treaty is designed balanced to create new rights
for broadcasters to exploit works at the expense of copyright owners and
public domain. They say we should rely on them and trust them: that is
not balanced, that is capitulation. We do not agree with that view.

We believe that this treaty should not be extended to the internet.   It
is not the purview of one company to ask for special consideration at
this forum.

2.  The internet presents the best opportunity ever to provide access to
knowledge for scholars, researchers, scientists etc. Everyone is
empowered by the vast sea of free information that is now available.
This proposal to create new and never-tested rights is for special
interests, who wish to claim rights over works that are currently freely
available.

The treaty cretes a new layer of rights that could be exercised even in
the case the creator does not want it. It is not necessary to create
these rights to disseminate digital works. As we have heard, there are
many technology firms who do not agree with this extension. it is not
the purview of one company to ask this forum for special protection.

3. We would like to ask why these proposals are being pushed forward
when the development agenda has not been in the same way. The treaty is
a threat to the development agenda. The committee needs to reassess its
priorities. There are more pressing issues: why are we just looking at
property rights that restrict access to knowledge, when we should be
looking at proposals that extend access to knowledge?

WIPO has also been asked to examine impact on consumers of innovation.
Yet articles 16 and 17 suggest these measures continued when there has
been no timetable for a review of the effect of TPMs. There have been
continuing problems with TPMs, and we urge the commitee to set out a
clear timetable for a study to look at the effects on consumers of TPM. 
and we urge the  commitee to set a timetable for a treaty on access to
knowledge.

This treaty is not compatible with the spirit of the Develeopment
Agenda.

Chair: We will continue tomorrow, then go to the limitations and
exceptions, and then to webcasting.

Deeplinks Topics

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