Blogging WIPO: Broadcast Treaty Moving Forward Despite Objections
WIPO's proposed Broadcasting Treaty lurched forward another step on Wednesday. In a tense and acrimonious meeting, the WIPO Standing Committee on Copyright and Related Rights adopted a recommendation that WIPO's General Assembly should convene a 2007 Diplomatic Conference to finalize the treaty. The 183 WIPO Member States must now decide whether to accept that and convene the Conference, when the General Assembly meets on September 25 - October 3. It's not at all clear whether they will do so, but EFF will be at WIPO to report on events as they unfold.
This week's meeting was supposed to reach agreement on the content of the draft treaty text, but there was none. Many countries expressed concerns about the current treaty draft, which would grant broadcasters and cablecasters broad new IP-like rights over anything they transmit, even where material is in the public domain, or licensed permissively under a Creative Commons licence. The treaty currently gives broadcasters and cablecasters exclusive rights to control transmissions of their 'casts over the Internet. Meanwhile, the United States supports expanding the treaty to give 50 year exclusive rights to "netcasters".
At least ten countries opposed the WIPO Committee Chair's recommendation to move the treaty forward. The future of the treaty hung in the balance until the WIPO Committee Chair brought the meeting to a close by disallowing any further debate and calling for a "silence is consent" vote. While the heavy-handed tactics produced a formal recommendation from the meeting because no one country wanted to take the political blame for blocking the treaty, this will hardly be conducive to an affirmative vote at the upcoming WIPO General Assembly. The disagreements are real and deep.
There are two major sticking points. First, Technological Protection Measures (TPMs). The U.S. is unhappy with the current treaty draft because it includes an option for no TPMs, which the U.S. believes should be mandatory, and obligations to promote cultural diversity, which it opposes. Meanwhile, Brazil and the Asia Group of countries have called for removal of the TPM provision, and South Africa, Chile and the African Group have expressed concern about its ability to restrict access to knowledge and public domain material.
The second sticking point is the Treaty's coverage of Internet transmissions. India, Iran, Indonesia, South Africa, Chile and Pakistan raised concerns about the treaty's inclusion of exclusive rights of control over Internet transmissions of broadcast and cablecast material, which they thought had been agreed to be removed at WIPO's May meeting, along with the U.S.' s controversial "webcasting" proposal.
A large and diverse group of public interest non-governmental organizations, artists and performers, U.S telecommunications and consumer electronics companies and ICT industry bodies turned up in force to oppose the current draft, which they believe is likely to restrict access to knowledge, curtail consumers' existing timeshifting rights, stifle technological innovation, create liability for Internet intermediaries and device manufacturers, and impede the roll-out of new home entertainment and personal networking technologies.
Yet again, NGOs were not given an opportunity to present statements during the meeting. However, EFF distributed an open letter to WIPO signed by over 200 podcasters and podcasting organizations, together representing thousands of podcasters. The letter expressed podcasters' concerns that the treaty would increase complexity for rights clearance, and harm the innovation environment for online communication technologies.
At the end of this week's meeting, the only thing that is clear is that the Internet community should continue to be very worried about this Treaty. Everything now turns on the WIPO General Assembly meeting that will take place in two weeks. If the General Assembly accepts the Committee's recommendation, there will be a two day preparatory conference in January to formulate procedural rules, and what is likely to be a very acrimonious Diplomatic Conference in July. If the General Assembly votes against moving the treaty to a 2007 Diplomatic Conference, as it has done for the last two years, then the U.S. has indicated it wants "netcasting", the new version of webcasting, back in the treaty. Either way, EFF will be at WIPO to defend your rights.
The final recommendations adopted by the meeting are
Following are EFF/ CP Tech's notes of Day 3, September 13, 2006.
Cross-blogged at CP Tech's Casters Treaty blog.
WIPO Standing Committee on Copyright and Related Rights, 15th Session
Day 3, 13 September 2006
Notes taken by:
Gwen Hinze, gwen at eff dot org, Electronic Frontier Foundation [GH]
Thiru Balasubramaniam, thiru at cptech dot org, Consumer Project on Technology [TB]
[NOTE: This is not an official transcript. It's our best effort at providing a faithful set of notes of the proceedings. Any errors and omissions are unintentional and regretted.]
Copyright-Only Dedication (based on United States law)
Except where indicated in relation to specific text in the following material, the person or persons who have associated their work with this document
(the "Dedicator") hereby dedicate the entire copyright in the work of
authorship identified below (the "Work") to the public domain.
Dedicator makes this dedication for the benefit of the public at large
and to the detriment of Dedicator's heirs and successors. Dedicator
intends this dedication to be an overt act of relinquishment in
perpetuity of all present and future rights under copyright law, whether
vested or contingent, in the Work. Dedicator understands that such
relinquishment of all rights includes the relinquishment of all rights
to enforce (by lawsuit or otherwise) those copyrights in the Work.
Dedicator recognizes that, once placed in the public domain, the Work
may be freely reproduced, distributed, transmitted, used, modified,
built upon, or otherwise exploited by anyone for any purpose, commercial
or non-commercial, and in any way, including by methods that have not
yet been invented or conceived.
Now we begin our discussion of the State of the Art of our work. Main question, whether we can decide to recommend to General Assembly that it convene a Diplomatic Conference (DC). This is just the opening, the beginning of our work. We set the target date for our considerations, for our negotiations to continue. Just a target date. Much analysis now done. There is no major unknown issue. The target date would be known. there would be a concrete basis for moving forward.
Basic Proposal that is going to be presented may include a number of alternative solutions. Does not preclude revised, new proposals. No one bound by Draft Basic Proposal (DBP). If some substantive items are difficult for you, if difficult for you to have them included, does not mean that you agree to them being in the treaty. Everyone has the right to have their proposal included, to have this tested. Question of flexibility. Everyone knows each other well. The question is whether we have confidence that common sense will prevail.
These comments are a continuation of my intervention last night. Draft document I promised is not binding on you. Includes a number of options or areas where difficulties. Intention is to keep process open, keep all options open. Question of whether we can find a way, a process, for going forward to a DC, with instructions on drafting a revised text.
Floor is open for information and assessment.
See whether we can get to consensus on process.
We know that there is willingness on part of NGO to speak. We have no lengthy sessions for discussion by Member States. The process [for this meeting] has been different so I still ask for patience and tolerance in those corners.
I would like to make a remark on how to proceed on the next step.
Based on decision of GA we have held 3 additional meetings. Any proposition has been included in the draft basic proposal based on the principle of inclusiveness.
So should be no reason for any delegation to resist agreeing on basic proposal. But having had consultations with many delegations, it is the case that some distinguished delegates cannot accept the basic proposal. Therefore we need to be realistic. Japan has some specific comments on issues in draft proposal.
These issues can be discussed in the Diplomatic Conference. The most important task for this Committee is to recommend a Diplomatic Conference early next year before losing motivation and momentum towards treaty, lest we lose the raison d'etre. Should move from planning phase to action phase.
We should abide by the Chairman's proposal as outlined today. Japan supports the Chair's new proposal.
We have heard your proposal that you made yesterday and the 10 points and the scenario you envisaged including the timeframe and the emotional commitments we may have to make, and how we will build friendships at the end of it all.
For my point I look forward to that. But I would prefer to build friendships without an argumentative phase. So I think we should go into the General Assembly by seriously addressing the mandate given to us by the General Assembly.
GA mandate was not just to make recommendation on convening of a DipCon. GA asked SCCR to meet twice to thrash out issues and come to agreement on a text so that the path for Dip Con would be easier.
While I would like to be enthused by the scenario you have painted for us, I have a lot of trepidation going into the Diplomatic Conference. Reason is obvious. Despite three meetings we have not been able to agree upon anything.
When I left SCCR 14 I felt we had made progress. The major obstacle in our progress - webcasting - had been removed. However, your interventions on Monday and yesterday lead me to conclude that webcasting is still very much in the treaty, despite your reassurance that it will be subject of separate instrument.
Unless we come to an agreement on this issue, I feel that a Dip Con will be acrimonious and not possible to come to agreement.
We agreed last time that webcasting would be treated separately. Then, as I pointed out in my Monday intervention, we find out that it continues to be included in retransmission rights and elsewhere in treaty. Unless we can come to agreement on this core issue, we will be unable to agree on convening a DC.
I feel that this SCCR would not be meeting its mandate by merely postponing the evil date of the DipCon. The stakes would be raised when you take a contentious issue without adequate preparation to a Dip Conf.
Risk of failure would become that much higher. If we just postpone the evil day, recipe for failure. I'm sure that it is not your, or the Secretariats' intention that we continue without clarification. The rights of what we are trying to protect are not defined.
Broadcasting orgs merely broadcast signals, and have revenue model based on free to air + advertising, or subscription, or combination of subscription + advertising.
The broadcaster model does not look at the intellectual property that is carried in the signal. The broadcasters' right is derived from the IP right carried in the signal.
Have to look at protection that we are trying to give broadcaster organizations. It is the right of the IP right holders.
Do not always transfer to the broadcaster except where they are IP holders themselves, produce works themselves and casting. If they are contracting for rights, then rightsholders may not assign all rights, for all times to come, for all platforms.
The 3 dimensions of space, time and content are limited and in this treaty so far we do not find any clause. The extent to which they have rights of intellectual property that highlight or oblige the broadcaster organization to declare extent to which providing protection beyond signal is fraught with danger.
It is likely to trample over the IP rights of others. It is likely to trample over the rights of people to access to knowledge and information which is in the public domain. Giving IP rights over non copyrighted works would make a mockery of that "non-IP right".
Should be obligatory for br orgs to declare the nature of the rights they have and can be granted under existing international instruments.
The third point which I would like to make is that if we really need to move forward for a Dip Conf, and if you need some mandate from the floor on the nature of the drafting that needs to be done, we owe it to ourselves as Member States of WIPO, we need to grapple with these two issues so we can give an appropriate mandate to guide a Dip Conf.
If these two core issues not addressed and brought under some understanding, then I?m afraid that going up the garden path to a Dip Con. may end up in a fiasco.
Want to address a matter of confusion. As we see it, the text does not talk about webcasting. We are not talking about Internet, but about prohibiting illegal distribution of broadcast content over Internet. If we don't address this, we will miss an opportunity to have an effective treaty.
We stand ready to work on any outstanding proposals. The current proposal by the Chair is acceptable. We agree that we do now need to move to a DC.
There have been many sessions of the SCCR and many regional consultations.
There are technical details that need work. However we feel that the process is sufficiently mature to call for a Dip Con.
We know from previous experience, at such a conference we can work on and refine those issues that remain to be resolved.
We believe that the work of this committee is already at an advanced stage. The text that we have been discussing for almost a decade is sufficiently advanced and provides a good basis for a Dip Conf. However we feel that there are legitimate concerns raised by several delegations, but we have confidence in you, Mr. Chair, to address these concerns.
We support the convening of a Dip Con just limited to the protection of broadcast signals and hope that we can agree on such a recommendation.
In the course of a series of bilateral meetings that have gone on over the last few days for a possible redirectioning of the basis of the treaty, my delegation has taken note of a number of delegations that could support a narrowing of the protection, along the lines of the points you outlined yesterday.
My delegation has been willing to understand and to support to a certain extent a treaty that would consider a more narrow range of rights, focusing on a right of retransmission, which is of concern to many Member States.
I have understand that many Member States could live with a Treaty without a provision with post-fixation rights on basis that these would not be needed if we could deal adequately with the right of retransmission.
I have understood that delegations could deal with the right of transmission that was crafted defensively as a "right to prohibit" over all mediums.
To what extent this becomes a treaty that covers webcasting and simulcasting is yet to be answered. Of course, it is the million-dollar question, and still need to be answered. Exploring defensive right of retransmission is a good start.
Some substantive matters have been patched over until now. My delegation could not embark upon a DC recommendation without a draft treaty document. Important and sensitive issue for all stakeholders. We cannot take a decision on DC without knowing what the basis of the Dip Con shall be.
We came prepared to discuss the current document SCCR15/2. To do so would mean that we go to DC with more or less the full range of proposals put forward by Brazil and other Member States.
Inclusion of Articles 2,3,4 and our concerns regarding TPMs (namely that they be removed) are essential to Brazil's consideration of embarking upon a Dip Conf.
If our concerns and proposals are discarded and not referred to in any precise language, then unfortunately Brazil will not be in a position to make decision on convening a DC.
We are not opposed to a change of course with respect to signal protection as discussed in the corridors. However, in terms of procedure would have great difficulty in relying on general guidelines as basis for decisions on DC.
On basis of instructions from Capital, we wish to reiterate our instructions on preparation of document focusing on traditional broadcasting and cablecasting.
Consequently we are willing to contribute to achieving a common consensus.
Like many other delegations, we believe that they are some matters in the document, directly or indirectly referring to webcasting. We want to be quite clear that webcasting is OUTSIDE the scope of this treaty.
In brief, Argentina cannot support a treaty that seeks to extend protection of broadcasters to webcasters.
I think a small clarification could be asked. The translation leaves a question unanswered. I'm sorry I was not listening to you in Spanish, so I have to ask. Do you mean protection of webcasting or webcasting as defensive element?
[TB: LOST IN TRANSLATION]
I wasn't referring to cable at all. We have no problem with cable at all. As to Brazil's intervention, from yesterday, if they could provide written proposal then we could submit and get instructions from our capital.
Inclusiveness should be part of substance and procedure in terms of finalizing work to the end, in a transparent manner. We think delegations have sufficient flexibility. There was an agreement that scope of treaty could be on traditional broadcasting and cablecasting.
Developing countries concerned about webcasting because of complexity.
There is some ambiguity in the text as you indicated yesterday. The text is based on the signal protection as you mentioned, but we also mentioned rights.
The final provisions of the Treaty have not been discussed. Before a Dip Conf there is no space to revisit the text. We need a clean text before the Dip Conf. Because procedures completely different in DC. My delegation has been constructive and willing to support treaty on traditional basis.
We have confidence in you, Mr. Chair, but my delegation needs to see clean text.
Indonesia wants to see progress in the SCCR. We would like to draw your attention to the mandate given by the GA. It is clear that the GA asked the SCCR to agree and finalize upon a basic proposal.
First thing to do, we should have to answer: is this revied basic proposal acceptable to all delegations?
Noted this morning that some delegations seem to have concerns on basic draft.
There is some work to be done before convening a Dip Con.
In line with what Iran said, we need to revisit the revised basic proposal.
Should be clear on scope and what sort of approach we are going to take.
Would also like to stress reference to webcasting. Yes, no longer any reference to webcasting in draft treaty but still some references to Internet. We need to clean the text of references to webcasting.
Some African delegations suggested yesterday we should have impact assessment studies. We strongly support that, would assist our negotiations.
Want to put on record an acknowledgement of all your efforts, want to note movement towards narrower signal approach. Agree on need to clean up references in document to clean up inconsistencies on Internet transmissions.
We need consistency wrt language on webcasting.
We wish to see a document before committing to a Dip Conf. We propose a meeting before committing to convening a Dip Conf. so know what we are committing to and prepare adequately for DC
To this extent S. Africa commits itself to the process.
My delegation feels that we may be rushing this in trying to come up with DC. We may be putting the cart before the horse. We need to learn to swim before buying a swimming pool.
We are committed to process, have made proposals, but feel that there is a procedural issue. Text is still unclear; We have three or four alternative proposals. some might be removed. e.g. TPMs we might not have them. Yesterday we had a new proposal on TPMs.
[GH: Discussion in informal consultations between Member States apparently about narrowing scope of legal protection for TPMs to only protect with respect to signal protection, not content. Query whether this would be more like existing unlawful access/ conditional access regimes, rather than a full broadcaster TPM regime with technology mandate over designs that that would likely entail.]
I realize there can be loose ends at a Dip Con but we still have substantive proposals to resolve. We have to make sure that webcasting does NOT remain in the language of the treaty. Not clear if text is going to be distributed or not. In brief, we are going too fast and it is premature to call upon a Dip Con/
Adjourned for coffee break around 12 noon
[GH: Chair's document - Draft Conclusions of the SCCR - has just been handed out]
Chair: Now I will give some reading instructions. After the heading "Instructions for the Preparation of the Basic Proposal" there are some difficult issues, some half-finished sentences.
[TB: Upon first glance and based on what delegations said this morning, I don't think this document will be acceptable to the Committee.]
The Indonesian delegation asked whether the draft basic proposal could be converted into the basic proposal. This is one of the main questions.
Brazil mentioned that we don't have a text under our nose, how can we agree to a text if we don't have it in front of us?
How can we make these instructions stronger, give sufficient guarantees, as to give you comfort?
Brazil asked about the general direction of this process, could we consider a narrower scope, a narrower range of rights. I think there is willingness to talk about this.
There have been references of inclusiveness. However at the same time there are some delegations that have been calling for articles to be deleted, this is not "inclusive". Can we show more inclusiveness, rather than giving direct mandates that are not acceptable to many?
All this has been extremely important. There is progress going on. There was a proposal to have another meeting to discuss and look at the text. This implies that a text needs to be prepared by the Committee.
All very positive if there is flexibility in the room.
If we are not able to receive a decision at the GA then we return to a place where some delegations [GH: i.e. the US and EU] would like us to consider the whole package, namely including simulcasting and webcasting. Then there is the concern that the Himalaya Mountain will be there as a great obstacle.
So these are the considerations facing us. I now turn to you.
Wanted to make clarification on earlier intervention. Many countries asked if we had put pre condition on agreeing to a Dip Con until we had seen the draft basic proposal. We previously had trouble agreeing without seeing draft document. Now we are going to look at this document you have circulated and make a decision.
Chair: we have some 4 minutes to go.
Just a point of clarification. When we regroup after lunch we should know exactly what to do.
In this draft that has been now circulated. There is a section on "instructions for the draft basic proposal."
The way I understand is that we are supposed to look at each of these and give a contribution, so that the Chair can prepare a revised text?
Could I get an answer to this please?
The intention is to go through these items one by one but some of these issues are inter-connected. There are some items that only give the name and point. The question would be whether the given item would be deleted or re-formulated for example.
Intention is to obtain some words, whether given item to be retained or deleted or reformulated, to make functional instructions.
What would be the procedure for responding to such? Is it going to be point by point?
Would every delegation have opportunity to make contribution?
Time becoming critical; won't have time for consultation. May have to have no discussion. May have to have a working hypothesis on some items and you would indicate yes or no.
[TB: European Communities and its Member States has raised its flag]
How would you consider divergences of views and how that would be reconciled in the set of instructions?
[GH: What if Member States do not agree with this approach. So far this morning India, Brazil, Iran, Indonesia, and Chile have raised concerns about current draft and/or indicated that they would need to see revised draft proposal before considering support for recommendation that GA convene a DC. This document and the discussion do not seem to countenance that as a possibility.]
According to principle of inclusiveness, if someone wants in, someone wants out, we would continue to have it in the next draft.
European Communities and its Member States and the acceding states of Bulgaria and Romania (Julie Sammada):
First time that we are taking the floor, would like to thank and congratulate you on election as Chair and vice chair.
We reserve the right to give a global statement of the points rather than on a point by point approach. We think that the points are inextricably linked. Would like to ask that when time for group statement for EC we could make a more global statement.
Chair: We will now break for lunch. At 3 PM we will restart the meeting.
1:15 pm Adjourned.
3:30 pm Restart
It seems consultations over last few days have led to agreement amongst many delegations that would be prepared to accept recommendation to GA to convene DC. Also hear that many delegations could accept the current draft on table as the basic proposal.
[GH: Note that a number of Member States have also stated this morning that the current treaty draft is not a sufficient basis for convening a DC and/or that they would not support recommendation to GA to convene a DC: India, Brazil, Iran, Indonesia, Chile, possibly South Africa. Decisions of WIPO are supposed to be made on the basis of consensus, and there is clearly none here.]
Then there is the question about whether we can agree drafting instructions precise enough that would allow us to move forward, take next step.
It sounds like many delegations would consider that these items are inter-linked. Links between 2 and, 3 and 4. That advice now repeatedly received. Not useful to have point to point discussion. Very difficult to explain all links. Too many such things.
So I suggest we continue series of interventions started this morning.
Is inclusiveness the prevailing principle or should we have further drafting, and under what sort of conditions? Now as you take the floor and make intervention, bear in mind the outstanding matters.
Would like to make a general comment. Want to think about end user of broadcast and human rights. We've made a general statement on this. Treaty should not go against human rights. Article 1 should clearly state that Treaty will not go against human rights or any woman, man, or child nor go against any other international treaty. Convention on rights of child is most widely and rapidly adopted intl treaty, shows part of intl law. Issue of access to knowledge and freedom of speech of child.
Article 28: Right to education of the child. Access to education including information. The over-riding principle is the right of the child.
We would like minutes to reflect the connection between human rights and IP. and ensure that treaty not violates human rights.
[GH: On this issue, submission to SCCR 14 and Member States from UNESCO provides very useful analysis. Part of package of IGO and NGO statements on WIPO SCCR 15 webpage.]
Need to remove all references to webcasting and Internet retransmission issues. Contentious. Would the prep con that is described in your draft document be used to consider discussions on this?
This may be best answered by the experts of the institution. But committee may be used for specific technical matters, but as delegates come to that meeting, could attend another meeting on substance at same time.
[GH: Would that be a formal or informal meeting?]
Then you should include a sentence that the discussions on the text will take place in these ensuing meetings.
Thank you for suggesting that when delegations come to Geneva that they could continue informal discussions on substance.
[GH: Note that Pakistan did not refer to whether the discussions would be informal or formal. They did not say "informal" nor "formal". The status of the side meeting to the Prep Con is obviously an important point. ]
As stated before, Norway is in favor of moving towards holding a DC in 2007 and to moving to update br rights in line with other related rights. We have been having negotiations for 8 years. We believe that current draft SCCR 15/2 can form basis of discussions for DC.
I wanted to reiterate opinion of our delegation, endorsed by many colleagues this morning. Current draft basic proposal is excellent basis of holding DC. Of course there are some problems but they can be worked on by experts, real experts, who will be at the DC. In accordance with instructions we have received, we want to state that this draft is consistent with us moving towards a DC.
Further elaboration on some of points in Chair's list. For limitations and exceptions, we support non-exhaustive list. Agree with Africa Group. On TPMS would like to make clear that should be limited to signal protection.
I wish to express support for the draft you have given us. Certain favorable factors for moving fwd with one caveat, that there remain certain issues that are outstanding.
In addition to previous speakers, there are a number of delegations who have indicated could proceed on basis of current draft.
We see a term of protection for 20 years. The African Group came up with the proposal that came up with language for a "minimum term of protection" for 20 years. Could not go below 20 years.
I could add that to my draft here. The English version says "at least" 20 years, but could be stressed further.
On specific question, whether we should proceed on 15/2 or document that you distributed this morning, if the suggestion is that we do not take the time to give specific instructions on drafting and proceed instead with current text, we want to reiterate our position that current text is riddled with inherent contradictions and inconsistencies. We do not accept that current document could form basis of discussions for or decision to convene DC.
We would like to reiterate our position that the present text is riddled with inherent contradictions.
We need some clarification regarding the basic proposal.
At last meeting, was agreed that document referred to (SCCR 12/5) would be excluded from consideration. Also title unclear. Clear consensus to exclude SCCR12/5.
Thank you. You made some good points. We will complement the list by getting instructions but have received clear instructions that don't go that way because would be like doing DC itself, many linkages.
On second point, we have only one draft document SCCR/15/ 2
I did not take notes, what were your other technical questions please?
Iran: I do not know what you mean.
Chair: I think you had 4 points, but I think I responded to your two most pertinent points, so that's sufficient.
We support Norway's statements. The time is now ripe for a DC, we should not let it become rotten.
Concern that document too broad, but we would support your suggestion to remove "revised draft" and change date.
Thank you for all your work, and doing best to reach consensus on holding DC in 2007.
As for the draft conclusions, looking at the provisions on L&E, we see a reference to the list approach. This is an approach we could support but on the understanding that it is a non-exhaustive list. On terms of protection, thank you for clarifying that 20 years could be a min term. On procedure, how much can we do before a DC and how much should we do?
Is it possible to resolve all the outstanding issues before embarking on a Diplomatic Conference?
Chair: There are items to add to the understanding
We support convening of DC. Do instructions mean that delegations not free to raise other questions not listed here? Would prep con be taking up with procedure logistics, what questions go first?
Prep con is very specific meeting with very specific tasks, such as prep of procedural rules for DC and drawing up list of govts and NGOs, not usually matters of substance, which are usually left up to member states, to organize their own proceedings.
On your first question, we are totally in free space, either now or in DC, can raise any issue, even with draft basic text in front of you.
We have a lot of flexibility in this meeting.
In sense that document SCCR 15/2 has lot of alternatives that were supported by many delegations in this room and to the extent that made clear that webcasting and simulcasting as such were taken out of this document, and noting India's comments about inconsistencies within the document, we could agree that this document could be basis of convening a DC
If we depart from this approach, such as what you proposed last night (guidelines) we could eventually consider this as well. In this case we would have a procedural difficulty, as we could not take a decision till we can consider in a formal session of the SCCR the basic text.
Would have procedural difficulty - would not have opportunity to consider text and instructions would have to be redrafted b.c doesn't reflect bilateral understandings reached during early days of this meetings.
If we should use that document, we should complete the guidelines text but we rejected that because you yourself mentioned no opportunity for MS to give feedback and further instruction. That procedure would undermine objective we are trying to work towards here.
We consider the convening of a DC in 2007 of the highest importance. It is becoming apparent that there are deep differences between us. I believe that many delegations need to review those concerns within a new basic proposal in order that they can feel they can support the convening of a DC.
I wonder if we could recommend to the GA the convening of a DC on condition that consensus be reached on a new basic proposal in a SCCR that could meet perhaps in January 2007. I believe we could achieve consensus in January 2007.
Some more work would be done to make more acceptable on basis of work done here. Now we have revived this two step process for your consideration and look at ways to make it better. We have these two ways and no way is easy.
European Communities and its Member States plus Bulgaria and Romania:
We have been involved in deliberations to determine the likely contours of an agreement.
The elements of a basic proposal are contained in document 15/2 and the guidelines you have circulated. All of these are elements in a wider puzzle that we should reconfigure in a careful manner to reach an agreement.
We believe that the basic text (doc 15/2) contains all the elements we have necessary for a DC. We are open to clarify if necessary on how to configure DBP into a basic text.
Our main message is that we see the contours of how these elements can be reconfigured to reach an agreement. It requires a lot of expertise and goodwill.
We support holding of a DC, but I cannot find a deadline for holding a DC in 2007. Is there a deadline for holding a DC in 2007?
Chair: May, June, July??? July would allow prep com to be held in May
May DC would allow Dec prep con.
Agreement not on substance, but on procedure.
[TB: Chair is NOT answering the question "Is there a deadline"]
United States of America:
We have not intervened except on one occasion.
Much like the EC we have engaged in listening and discussing with other delegations to test the consensus and agreement about the current status of draft basic proposal SCCR15/2.
One of the main reasons we reluctantly agreed at last meetings, somewhat contrary to the principle of inclusiveness, the exclusion of our webcasting protection proposal, was to see what type of consensus we had with respect to broadcasting and cablecasting protection. In our assessment, by itself, the Draft Basic Proposal NOT a sufficient basis to proceed to a DC. We require more certainly. We understand that this is true for some other delegations. Principle of inclusiveness has benefits and costs, and for US the document has these. Principal among these is provision in Articles 2,3,4, which we believe reach beyond protection of broadasting, and cause us much uncertainty going forward. Similarly have concerns about TPM provision. As we noted earlier this week, there is no equivalent provision to WPPT language in draft text, and this increases uncertainty and risk from our point of view. We note that our proposal on this point was not included in drafting instructions.
We remain open to discussion on ways to alleviate the uncertainty caused.
We feel that document 15/2 by itself is not enough of a basis for going forward.
or a separate meeting where further agreement might be obtained. Willing to do that on all provisions and proposals. We are committed to finding best level of protection for broadcasting and cablecasting. You alluded to other approach this morning that might alleviate concerns of many delegations on question of exceptions and limitations, we would support that. Have begun consultations with other delegations to explore that.
We do think that more work needs to be done on SCCR 15/2 and we remain open to ideas on how to proceed forward in a timely manner.
Our inclination is to join with sentiments expressed by Norway and Switzerland, insofar as we understood them as saying that SCCR15/2 could be basis for going forward with a DC. Not to be taken as acceptance of everything in that document, and not implying that those delegations implied that.
One previous delegation stated that the document had a number of inconsistencies. In this sort of process, that is inevitable. We should have trouble accepting some of alternatives in provision that previous delegation has just mentioned. [i.e. Art 2,3,4 mentioned by US] We think we could go fwd nevertheless because you can only allow fruit to ripen too far before it goes rotten and you go back to square one. Not against further opportunity to advance document if that is prevailing view of meeting to hold mtg to look at further refinement. Not opposed to two track process.
[TB: Indonesian Ambassador and Romanian Ambassador are present.]
Chair:I will say something after Bolivia, offer my thoughts.
During the meetings, my delegation has noted that while 15/2 is a good and inclusive document it contains a number of divergent views and thus it would be premature to convene a DC. More particularly in my country's view, the lack of safeguards covering the public interest, a priority for my country, as expressed earlier by Uruguay, we believe should be considered in body of treaty not in preamble.
For this reasons, we consider it premature to convene a Diplomatic Conference. We should continue our work in future SCCR's to bring diverging views together and in following year perhaps able to hold DC.
We have been working on this for 8 years. High level of feeling that we should now conclude the project, make it a success, not a failure.
There is flexibility. Of course there is convergence. Politically and technically would be simplest to just say that draft text on table be converted and become the Basic Proposal. There are concerns and opinion that something should be done. How? We have tried the instruction method. It is clear that instructions method works against itself, because in time available, cannot reflect willingness and flexibility and connections between items. Has added to concerns of some.
Has reference to another meeting to revisit substantive issues, but of course under the proviso that already recommendation to convene a DC.
One possibility would be that after this meeting on the basis of all that we know and all that has been recorded and said, revision would be made in the document and this would be presented in the preparatory committee.
Could present revised version to prep con, on basis of all these matters, but concern that only vague instructions and no resolution on complex items.
Or possibility that we go forward on what we have. Convert Draft Basic Proposal to Basic Proposal and agree that would meet before Prep Con to try to further agreement. To this we could add the condition that this would not be taken to be the BP without trying to do something to it.
Another possibility would be to convert DBP into the basic proposal.
Now I would say convert the document to BP and hold another meeting and from that meeting one or more elements could emerge - that would form basis for Working Paper. At least two possibilities make it de facto by creating working paper that we know very well or develop alternative proposals. I see the former as the only way forward.
I will not be able to produce this in writing, as we do not have enough time available.
We cannot open a substantive debate on this. We will break for 5 mines in session to allow consultation with Secretariat.
[Approx 5 pm]
Proposal for 4 points for recommendations:
1) DC from July 7-Aug 1, 2007
for treaty with scope on traditional broadcast
2) SCCR 15/2 will constitute basic proposal
3) Prep Com in Jan 2007 with list of states and NGOs to be invited
4) 2-day meeting to clarify outstanding issues in conjunction with prep comm aided by a non-paper to be prepared by Dec 15, 2006 by CHAIR. I submit for approval
Want to know status of "non-paper", basis of preparation of paper and procedure for discussions in the two days; In last meeting we had discussed consideration of draft article by article. This meeting proceeded differently than what we had expected. Once I have clarification on this point, and how consideration of paper will be done, we would be able to provide comments to Secretariat.
Meeting is called a Special meeting, it would look at substantive issues and have objective to forge common grounds that consensus or near consensus positions could emerge, Would allow new proposals to emerge if sponsored or agreed by several delegations. Would de facto lead to solutions that would be a basis for solutions for the DC.It would be what we have omitted from this meeting - article by Article consideration. The character of the non-paper would be nothing before the delegates consider it, or that a proposal emerging from it could be put to delegations.
India: I have some more supplementaries.
You have used the term "substantive issues" when referring to "non-paper".
All the issues in your drafting paper are substantive issues. How are we to separate and identify what are the substantive papers on which a non-paper is to be prepared?
Would strongly request that they be identified now. If not, would just be yet another paper that is likely to lead to confusion. If we have an agreement on substantive non-paper issues and Chair kindly agrees to draft we could have way to move forward. Otherwise, could just be another draft, two documents, and would not move things forward.
Thank you. I have another suggestion. What if list of headings [in drafting instructions] could be the same as the draft list in italics. That would make it possible to identify articles relevant and the fact that you could find in the reports of meetings the expression of different views.
We could not expect that the meeting would be more than a prelude to a DC, a midway.
[Reads out list of italicized headings].
My humble submission is that it covers the whole treaty, not specific substantive issues. Therefore I would reiterate our delegation's position, that we either disregard 15/2 and prepare a new paper that removes inconsistencies and then have that paper considered by new meeting. If you have been saying that 15/2 is the draft basic proposal then preparing of a new set of substantive issue non-papers will further complicate this process. Reiterate our delegation's proposal that we must have a DBP first. Majority of delegations here have said that this is the case, then don't see need for further papers to iron out substantive issues. As you have said, we can work these issues out at Dip con. Superimposing a new doc would undermine the value of DBP.
If you would allow non-papers to prevail then there would always be a prevailing document, the DBP for DC. To try to do something with elements here better to do it in non-paper so can discard it if nothing useful emerges, but if something useful emerges, then very useful b/c based on discussions with delegations so useful for DC.
The non-paper would disappear and the basic proposal would stand if its elements would not be eliminated.
Will not clarify b/c may be perceived to be monopolizing the floor but reserve right to speak later.
I had no problem with monopolizing of time as I found the discussions interesting.
Your last two suggestions were confusing to our delegation. If we agree that 15/2 is the basis, then it is the DBP. Non-papers may be produced but they will have no formal relevance in the process and I will tell my authorities that 15/2 will be the basic proposal. I cannot tell my authorities that the basis for the Dip Con will be a non-paper that we really know nothing about. As you know this is a very legalistic organization and we have to identify a Basic Proposal. Superimposing an additional paper provides us with less certainty.
If your drafting document reflect your views as to what a non-paper may be acceptable then I have to register my concerns. On Scope: instructions document does not reflect that issue is protection of signal, not rights. Whole issues of grouping of rights is an operative provision not a preambular provision. I find 15/2 positive b/c it includes our proposal but your drafting instructions knock them off the table and not acceptable to our delegation. We did not submit proposal for preambular purpose but for operative.
Reference to EC statement about linkages - we need to understand how this will fit with rest of document.
No defn of beneficiaries.
Right and protection - - yes, but exclude clearly webcasting and simulcasting rights and coverage of non copyrighted matter and Public Domain works.
Post-fixation rights: much talking about narrowing these if rely on retransmission right, not reflected here.
TPMs are critical for our delegation - not including is the issue. Not needed for protecting signals. necessary to protect content, but CR content already protected under national law.
National treatment-it should be the main principle and not reciprocity.
For instance, it is still not clear that the protection for signals is about protection about signal theft rather than conferring exclusive rights.
Post-fixation rights-there has been a lot of agreement that these provisions should be dropped (in our bilaterals).
Eligibility - not accurate description.
Would like my comments to be reflected in minutes for your consideration and inclusion in a non-paper that you may want to prepare for consideration outside our formal negotiation activities.
As you said, no need to prepare non-paper if decide on15/2 as DBP. And no consensus on need for special meeting, so should delete rest of sentence there.
This way of proceeding is confusing for us. At end of SCCR 14 we agreed would use 15/2 as basis of future discussion. You indicated that there would be discussion on whether to hold a DC. This has been rejected by a number of delegations.
Now you have suggested a non-paper.
[Interrupting Delegate from Iran] The idea of a non-paper has been dropped, because not acceptable to one delegation.
At least one delegation has said that this doc could not be basis for DC. Are there any other delegations in this position?
The technical issues could be resolved at the DC but we have doubts as to your proposal that we should hold a two day meeting. My authorities have asked me to request a clarification b/c we would then like to know under what authority would a DC be convened? Would it be convened at the two day mtg or at some future meeting?
These clarifications were requested by my capital.
Point two reads: "The Revised Draft Basic Proposal shall constitute the working basis with the understanding that all delegations may make proposals at the DC"
I cannot give you the floor. India has been asking for floor for some time. I need to proceed to end of meeting.
India: Thank you. Want to draw your attention to para 4 on page 1.
Chair: that para is gone. I read only 4 paras - all is else is gone.
Notes that in 4th para that there was "broad" consensus. The SCCR stated that there was sufficient common ground on substantive question etc.
The fact that we are planning to meet for two days to resolve substantive issues indicates that there was no substantive agreement on these points so any language that does later get adopted should reflect that.
Agreed. We would not include this and would have this recording in record on this.
I have asked you not to insist on taking the floor so that we can proceed to finalize and agree that we will have only those 4 paragraphs.
That meeting will agree how to finalize their work and whether that is by non-papers or something else. I know that two delegations are asking for the floor, but is it a point of order?
We are seeking to work in as flexible way as possible, but would urge you, that in same way that you did in previous paper, to have draft decision in front of us.
Important. The language and how we are fulfilling them, are we really fulfilling mandate of GA? We were not asked to fix time for DC, you will recollect it was a negotiated outcome, and careful prepared resolution, We would not want our conclusion to conflict with anything agreed by GA.
Request that you distribute this to us in writing, in order to make an informed decision.
Chair: for technical reasons not possible to provide you with it in written form. I'll read it again.
1) DC for protection of broadcasting organizations shall be convened from July 7 to Aug 1 2007. The scope of treaty shall be confined to bcasters and cablecasters in the traditional sense.
2) 15/2 shall constitute the working basis for the DC with the understanding that MS can make proposals at the DC.
3) Prep Com in Jan 2007 with list of states and NGOs to be invited
Chair: Would ask you to submit by way of secret procedures.
[GH: Secret ballot? or silence as consent?]
Chair: Will add
4) 2-day meeting to clarity outstanding issues in conjunction with prep comm,
Chair: It is under the GA's power to fix the date of the DC. This is a recommendation.
India, you want the floor? We need to finish but you shed light last time. Can you promise to shed light this time?
This afternoon has been very confusing for me, but your last statement takes the cake. When you say a "silent procedure", it can't be silence as consent in an international procedure, so how do we give consent silently?
Second point. Is it mandate of SCCR to fix date of DC? Our delegation thinks may be in competence of GA so may be technical difficulty in doing so, trying to fix a date by SCCR.
Your statement has been recorded and I endorse it, so that the GA can set the date.
Silence means no need for endorsements due to time so if you don't make any signs indicating otherwise, then I will gavel now.
[Gaveled at 5:56 pm]
Meeting declared closed 6:02 pm