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, email@example.com, Consumer Project on Technology [TB] David Tannenbaum, firstname.lastname@example.org, Union for the Public Domain [DT] Cory Doctorow, email@example.com, 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.