September 12, 2006 | By Gwen Hinze

Blogging WIPO: Broadcast Treaty Zooming Ahead

The WIPO Standing Committee on Copyright and Related Rights is meeting this week in Geneva to discuss and "finalize" the proposed Broadcasting Treaty. WIPO's goal is to get the 182 Member States to make a recommendation to the upcoming General Assembly that it should convene an early 2007 Diplomatic Conference, where the nuts and bolts of the treaty would be hammered out. Stakes are high. This will be the third time that the treaty has been put forward for a vote on holding a Diplomatic Conference. At the end of day 2, it looks like they might get their wish. The only question is at what cost?

Meeting organizers have deployed what can only be described as extraordinary measures. There's clear disagreement on four issues; inclusion of technological protection measures, Internet retransmission rights, exceptions and limitations and whether the treaty's scope should be limited to signal protection. Everyone knows this. Despite that, there's been surprisingly little discussion on substance. The Chair has given lengthy monologues about clarifying "misunderstandings" about technological protection measures and the need for Internet retransmission rights - the Genevois version of a filibuster - and then announced that there's no more time for statements; we've had one evening session, and the last two days have been spent in what he has termed "simul consultation", meaning the day has been fractured into publicly recorded plenary sessions, and private "informal" consultations amongst Member States and the Chair.

EFF, other public interest non governmental organizations, and U.S. industry groups who have joined together in opposing the treaty's overbroad rights-based approach are all here, talking to member country delegations, but have not been given an opportunity to speak. EFF is distributing an open letter signed by over 200 podcasters and podcasting organizations, a key part of the Internet community that will be detrimentally impacted by the treaty but has not been consulted. It is disconcerting that there seems to be such little understanding of Internet technologies and the significant policy implications of the treaty for the future of innovation and online communication.

Discussions began to accelerate yesterday afternoon, as one after another country expressed support for holding a Diplomatic Conference in 2007: the Republic of Korea, Singapore, Switzerland, the Africa Group, Morocco, Kenya, Benin, Egypt. Last night the Chair laid out his End Game Plan. He will draft a report overnight with what sounded like a recommendation to the General Assembly that it should convene a 2007 Diplomatic Conference and "drafting instructions" for the new treaty text to be prepared by the next SCCR meeting in November. He suggested that that would include TPMs, broad Internet retransmission rights, alternative formulations of the contentious post-fixation rights, and new definitions of "signal" and "broadcast". The recommendation will be distributed this morning - the final day - and Member States will be given an opportunity to comment. But the contentious issues are already well known: TPMs (opposed by Brazil, the Asia Group and Iran, concerns expressed by South Africa and the Africa Group amongst others), Internet retransmission rights and term.

In the Chair's mind though, it appears to be a done deal. He finished by telling us all about the three week Diplomatic Conference, It is a "civil kind of battle of intellects". "Constructive ambiguity" will be useful. "The Diplomatic Conference engenders friendship. Then many years later you see the people you have been fighting with, and it is like meeting your family. You hug and kiss! In the end there is a treaty adopted by consensus."

And this is how we make international information technology policy.

Full details are in EFF and CP Tech's notes of days 1 and 2, following.

Cross-blogged at EFF Deeplinks and CP Tech's Casting Treaty blog.

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Blogging WIPO: Standing Committee on Copyright and Related Rights, Session 15 on proposed Broadcasting Treaty

Day 1, 11 September 2006
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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.]

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Rita Hayes (WIPO Deputy Director General, Copyright): introduction

Election of Chair:

Jukka Liedes from Finland elected as Chair. Delegates from China and Morocco elected as Vice-Chairs.

Egypt[?]: seconded

Jukka Liedes (Chair): thank you for your decision, the honor of being elected, particularly as we have been long in this work and we have had difficult moments, and sometimes we have had trouble in maintaining the confidence. We are looking to create a good international instrument to protect broadcasters' signals and provide a good reference point for national implementations.

Acceptance of Agenda: agreed.

Adoption of report of SCCR 14 - July 31, 2006 SCCR14/4/Prov. All requested changes have been made.

Jorgen Blomqvist (WIPO): Report has been distributed. Based on customary procedures, Secretariat will collect written comments and make revised report available.

Chair: report is excellent. Example of excellent and professional work by Secretariat. Comprehensive report. Will adopt provisionally, on this basis.

Australia: Have notified some changes to Secretariat.

Chair: Will give delegations time to look at report this week, and give any changes to Secretariat. Adopt provisionally, with proviso that delegates can provide changes to their interventions this week. So adopted.

Next item - accreditation of certain NGOs.

SCCR15/3 - request by Federalist Society to be admitted as observer; Also ITSD.

SCCR15/3A - third organization seeking accreditation as observor - Institute of Authors' Rights.

Agreed.

Chair:
Purpose of meeting is to continue work on enhanced protection of broadcasting organizations. Reference should be made to WIPO General Assembly decision from September 26, 2005, where decided two additional meetings of SCCR would be scheduled to expedite work on finalizing work on draft Basic Proposal as then existed, in order to enable 2006 GA to recommend convening of Diplomatic Conference in 2006 or 2007. Two main tasks given to this committee: first, accelerate discussions on draft text. Done at first meeting, in November 2005.

Second task, aim to agree and finalize basic text of treaty with view to recommending to GA for convening a Dip Con, was main task of second meeting. On basis of previous discussions and GA decision, a draft basic proposal was produced for discussion in May.

Draft basic proposal was prepared as clean text with all accompanying proposals in a working paper, but it was suggested at May meeting that all proposals be considered together.

[GH: The division into "core" proposals in the draft Basic Proposal and "non-core" proposals, relegated to the accompanying Working Paper was extremely controversial at the May meeting. Webcasting, something that had been expressly rejected by many Member States at the meetings in November 2004 and November 2005, was included in the draft treaty text (albeit as a non-mandatory annex), but the proposals for exceptions and limitations to the new exclusive rights put forward by Brazil and Chile were sidelined into the accompanying Paper. Many of the countries whose proposals were relegated to the side paper expressed concern at the May meeting, and it was therefore agreed that all proposals would be considered together.]

There was a non-mandatory annex for webcasting, based on previous discussions and three options in Working Paper. Was intended to be integral part of treaty but not mandatory. Designed to make discussion of webcasting easier, but was well understood that broad opposition to inclusion of webcasting. There was found to be opposition in May meeting on both webcasting and that part of webcasting, what broadcasters call simulcasting, but again no agreement, no consensus possible there. Emerged principle of equal consideration, that we would treat all proposals on equal footing.

That led to decision that the substantive issue of webcasting and simulcasting will be tackled after this project. The revised draft basic proposal for a treaty text will only contain an instrument for the protection of traditional broadcasting and cablecasting.

[GH: Many of us are interested to hear how the meeting will or will not deal with the US delegation's submission on a proposed new definition of "netcasting". It was listed on the agenda for THIS meeting.]

The US delegation presented a paper [on August 1, 2006] in the category of "other related documents". This meeting shall be confined to the treatment of provisions related to "traditional" broadcasters rights solely.

[GH: So it won't be discussed at this meeting, but we'll take note of it lest the General Assembly decides against convening a Diplomatic Conference on traditional broadcasting?]

Chair: Deadline was set for consideration of proposals for webcasting. One delegation had indicated in May that it wanted to amend its previous proposal on webcasting, so a deadline was set for 1 August.

The proposal by the US belongs to that other process. Was agreed that separate instrument would deal with that at another meeting of SCCR, after GA.

[GH: Except that the current treaty draft continues to give broadcasters and cablecasters exclusive control over Internet retransmission of broadcasts and cablecasts. It gives a right to authorize a third party to make simultaneous retransmission over the Internet, broadcasters and cablecasters would an exclusive right to control making of "fixations" and an exclusive right for to make "deferred" transmissions of fixed content over the Internet. So broadcasters and cablecasters would have exclusive control over Internet transmissions, with all the liability concerns that brings for ISPs and Internet intermediaries, but yes, the word "webcasting" is not in the current draft. ]

[TB: See Articles 5,6, 9, and 14]

At the end of the May meeting there were two requests depending on the outcome of the deliberations of "traditional broadcasting".

Request for separate treatment for webcasting and simulcasting was recorded in report of SCCR 14 meeting.

There exists the possibility of webcasting rejoining the "main branch"

[GH: The US requested that "webcasting" be brought back into the treaty if the WIPO General Assembly does not vote to hold a 2007 Diplomatic Conference on traditional broadcasting and cablecasting, when it meets on September 25- October 3. The European Commission, at least at first, seemed to agree. It supports simulcasting. It said that should come back in in the event of a no-vote. Then it switched tack and stated, by way of clarification, that it considered that simulcasting was part of the "traditional" package.]

The working document that is on the table is called Revised Basic Draft Proposal. Now one very difficult item which could also be considered to be obstacle to concluding negotiations has been removed- namely, text only deals with traditional broadcasting and cablecasting activities.

Webcasting, a clear obstacle, has been removed from main text. There will be separate track for webcasting/simulcasting.

Many delegates have expressed interest in considering new rights, because they are economically important, but many other delegations have expressed view that need to have further consideration on these issues and that is why we don't consider these issues in this meeting.

The principle of inclusiveness has been followed. All alternatives are in one package, all significant views of all governments reflected in the one document. There are many substantive proposals in the document, but after several rounds of discussions, it is clear that there are some important items and others that are not so important. The number of such issues is not very high.

The experience of the two previous diplomatic conferences in 1996 and 2000 demonstrate that if delegations want and are in a negotiating mood, they may produce results even if there are many open questions in approaching a Diplomatic conference.

In 1996 there were three Basic Proposals and two treaties - many unresolved items were solved in Dip Con - some in plenary session, some in open-ended private consultation. Fact that 2000 Dip Con was not able to result in conclusion of a treaty, you may take that into consideration in assessing draft proposal before you. But nothing in this draft that would be unresolvable. In 2000 was a doctrinal issue in process. Here, nothing similar in this package.

Our task is to finalize a basic proposal. What is a basic proposal?

It is a document that is prepared in discussions, in our case in a committee.
We have had several generations of working documents in a consolidated form.

Advice of last SCCR was that whole item and content had to be changed. Webcasting, the most contested item, is now out of the proposal

[GH: at least by name]

It cannot mean that all questions have been agreed and resolved. That's what a Diplomatic Conference is about. Have to respect divergences that can be resolved at Diplomatic Conference.

To "finalize" means that the Committee will need to convert the document developed from the table into something to be considered at the Diplomatic Conference.

Basic Proposal is a working paper. When you agree that may have a working document on table, does not mean that you have agreed on all options. Free to make arguments, and Diplomatic Conference is a process of negotiations. Sometimes vote takes place in plenary session, or private session, but generally work on consensus. But as you know, sometimes voting takes place, and it is reasonable, and everyone has agreed with the result.

Before Dipl Con, there will be another version of document, based on discussions and advice of this committee, several months before Dip Con. When Dip Con convened, information sessions organized to explain interpretation of different views on different provisions. These meetings will be organized in different parts oft the world and have normally been useful, helpful to the process of conclusion.

I have two elements that I should still tackle:

In the public communication and in professional papers, there is a discussion around the issue of establishing a treaty for the protection of broadcasting organizations

There are clearly some issues in that discussion that we may witness in that discussion on the Internet and professional papers, there may be some issues that need clarification. Sometimes there are misunderstandings that are easily corrected.

Three examples.

1. There is a statement that the treaty would create new layers of sui generis rights for broadcasts. Not so. In most countries of the world, some broadcasters enjoy these rights already.

The draft basic proposal includes exactly what many countries have in their national level laws.

The DBP puts forward at international level what is recognized at national levels. Not a sui generis right.

TPMs are now part of the copyright regime and its supporting legislation.

Draft basic proposal is based on proposals from governments. Governments propose mainly what they have in national law - related rights are found in their own legislation

Everyone may admit that there may be other forms of protection that could function as form of protection BUT what the governments have been proposing is what you have in the document in front of you.

We may at some point of time take a look at countries national legislation.
There are some countries where many of the rights under discussion are already in place, have been tested. There may be new elements which need to be tested, and if not acceptable, dropped. Somewhere there is a level of protection that makes sense for a new instrument, a revised instrument.

There should not be a single ambition of achieving the highest level of protection, that would be nonsensical. System of protection must meet level of being functional system for dealing with piracy.

2. Right of retransmission. It has now been presented as broad right covering retransmission "by any means". There has been a comment that this retransmission right would bring webcasting back into the scope of protection.

In the definition of broadcasting and cablecasting, webcasting is explicitly excluded.

Webcasting is not within the scope of protection.

Traditional broadcasters would enjoy protection against protection of retransmission of their casts by another entity over a computer network.

I should say to you that this is not the case. The rights of traditional broadcasting, are what you find in the instrument. The scope of webcasting, or netcasting or simulcasting have been excluded by two means. Last sentence of definitions of "broadcasting" and "cablecasting" specifically exclude transmission over computer networks.

Second, Article on scope [GH: Art 6] excludes "mere retransmissions". Not within scope of protection, but traditional broadcasters would enjoy protection over unauthorized retransmission over Internet but retransmittters do not enjoy protection. This is very mechanical.

Why so broad a right of retransmission? Because may take place by means known or to be invented. May be detrimental to investment of broadcasters.

3. TPMs

I will only make a short reference to technological protection measures (TPMs). These clauses are contested.

In debate up to now, has been quite clear that this is contested. There is a proposal to have no clause, other delegations require these to be mandatory.

There is a suggestion that this would lead to a mandate to use TPMs. This is not the case, as is clear from the treaty text's explanatory notes.

[GH: Interesting. I don't think anyone has said that. We're saying it will require technology mandates - i.e. government laws over design of devices where broadcasters choose to use TPMs. But no one has said that broadcasters have to use TPMs, i.e. mandatory TPMs for broadcasters v. technology mandates for device manufacturers.]

Would be quite surprising if TPMs would not be developing all time. A clever businessman takes into account the expectations of customers. That means consumers' interests are taken into account.

Private transactions such as timeshifting and personal networking will be important in future, so of course technology developers have to take this into account. It is a matter for the marketplace. This is how the world functions.

[GH:Only where the legal protection for TPMs provide room for regulation of anti-competitive misuse and there is no technology mandate law in force. It should be a question for the market to decide, but technology mandates preclude that.]

Matters for discussion today:

- rights: fixation, retransmission etc

- exceptions: Chile's proposal on mandatory exceptions.. Several proposals on table specifically for treaty.

- TPMs and relationship to Exceptions and limitations.

Will revisit this today. Suggest should have proper consultation with proper coffee breaks. Every coffee break and lunch break and evening should be used efficiently to consult with other delegations. Would suggest that whole of tomorrow morning, up to lunch break, be set aside for this purpose. All delegations who have said this should look at and ask whether conditions proposed too high. Then tomorrow afternoon would have had some substantive discussions and proper consultations between delegations - if you stay around, do consultations. Then we see possibilities for reaching some consensus. If not, then we are in a difficult position.

Tomorrow first session from 3 - 6, then another session in the evening, depending on availability of interpreters.

Work plan:
- what kind of basic proposal now? Agree and finalize
- date of DipCon to be convened next year. Of course Dec 2006 not realistic.
- what other things to be considered - e.g. a preparatory conf for DC and if you think useful to have info sessions in your regions, near home basis, organized in the way we know.

Then tomorrow evening, if we see any possibility for draft proposal to be prepared, which would be distributed on Wednesday, and whole day on Wednesday would be devoted to discussions on these issues.

Main discussion on outstanding issues and areas where many alternatives where delegations feel strongly. How to be able to consider all proposals on basis of principle of inclusiveness, which is now our guiding principle?

Would this be a good way of working. If so, we could have a proper coffee break for 20-25 min.

Break, return at 12:15

12:35 Resumed

Chair: clarification of tomorrow's schedule and work plan. Suggest discussion of substantive rights, then separate discussion of TPMs and exceptions.

Indonesia: Before we proceed to substantive matters, will you give groups opportunity to give group statements?

Chair: if Group meetings tomorrow morning, afternoon session can report on these positions. Let?s continue discussions in a soft and flexible way now until 3pm tomorrow, when we can hear groups' positions.

I had already given comments on the retransmission right, which has already disappeared from the treaty. It's in Rome.

There is also the right of fixation, also in Rome.

There are downstream rights, after fixation - making available.

Then there is the element of providing protection prior to broadcast, which is protected in some countries as broadcasting, but not in others. Point to multipoint.

First items of debate. Would like not to have a full debate with all interventions, but a substantial number of interventions. This would satisfy the desires of some delegations that last time expressed preference for right-by-right discussion. All rights in the draft come from government proposals, that means that all rights come from some national laws; nothing was creating in the drafting process.

Sometimes many governments proposed similar clauses on rights.

In the Rome Convention retransmission only covers rebroadcasting.
What is missing is for broadcasters to have some control over retransmission of their content in which they have invested, over dbn paths such as computer networks and other dbn paths yet to be invented.

Fixation right:

Downstream rights: The right of distribution has disappeared from the text, but others have stated that rights of distribution of copies is an impt right that needs to be protected. This is an area where the protection goes beyond the live signal, but goes beyond to whole area where protect investment. Is an extension of signal protection beyond live signal and in many countries we have such protection.

Making available: another way of exploiting what was output of broadcasters' investment.

The right of transmission following fixation. "I would not call it deferred transmission" although some have.

Retransmission is confined to simultaneous transmission by an entity that is not the original broadcaster/cablecaster.

It is a new transmission, based on a fixation. There is no need to exaggerate the effect by changing words.

Now that I have used up on the time talking this morning, we will have no discussion. So I will talk all afternoon as well then, and make very angry some people who, when we discussed the possibility of my being in this position yesterday, I agreed that I would not talk all the time.

Break 1:00 pm

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Notes start from 3:45 pm [Meeting started at 3pm]

India: Gratifying that some of the contentious issues (webcasting, simulcasting) have been put to rest.

Thanks to your intervention last time and intervention of many countries, that has now been put to rest and now focusing attention on traditional broadcasting.

As you mentioned this morning, the Rome Convention and the TRIPS Agreement provide the basic framework of protection for broadcasting organizations.
It also gives enough flexibility for member states to provide more specific protection in their national domains.

The rights of the copyright owners and the rights of the public to access information should not be diminished or curtailed due to the implementation of protection for broadcasting organizations.

We have already been discussing the issue, that while the CR owners have the IP rights, the WPPT conferred certain IP rights on other organizations that are sought to be provided to other organizations also. The moot point that we need to consider is that the rights granted the to broadcasters need to be hemmed in by the rights granted to the pubic, then the circumscribing of the broadcasters' rights needs to be viewed from point of view of objectives of treaty draft.

While going through all the documentation we get the sense of the various positions of delegations. However, I could not glean the fundamental objectives we are trying to achieve from this treaty.

I am clear that broadcasters' transmit the signals that carry the content, which is protected. To extent, this protection is already provided by the TRIPS Agreement.

If the intention is to convert TRIPS intention from discretionary exercise by members of intl community to a mandatory obligation under proposed treaty, then we can certainly look at the treaty from that perspective, and we would be happy to make a contribution to this.

If the intention is to go beyond TRIPs (ie TRIPS plus or Rome plus) would be happy to consider additional protections, provided that specific objectives of that protection brought forward.

So far in all the discussions we have had, the demandeurs of the protection need to provide clarify why they need to be protected. In India, broadcasters get related rights. Additional rights only needed in respect of rights granted to hem by rightsholders. Therefore protection should be circumscribed by fact that they acquire these rights from rightsholders.

Article 6.1 restricts the scope of the protection to signals. Whereas Article 6.2 and 6.3 go further. We are willing to go beyond Art 6.1 if we are convinced as an international community if we feel that broadcasting industry needs and deserves this additional protection.

Second question: To what extent is that protection required. The protection they request must be circumscribed by the extent to which the right holder transfers their right to a broadcasting organization.

e.g. if film producer has transferred rt to broadcast film to broadcasting org. Once broadcast over, related rights expended. No longer a broadcast signal. Rebroadcast

Look at justification of need of rights beyond signal protection. Protection rather than rights. Broadcasting organizations need protection against signal theft.

Could look more at right to prohibit rather than exclusive rights being sought.

Second issue, some talk about what is broadcasting/ broadcast. In the latter sense is used as noun - then product and need to say what is included.

Post-fixation we are defining broadcast as a noun but we are not describing what a broadcast.

Haven't defined what product is. Raised in May. 4 aspects:
1) Content

2) Advertisements

3) Look and feel

4) Scheduling

If a 2nd broadcast takes place does it require same advertisements? If someone takes out ads, and repackages it, is it not protected? if so, not clear what rights are to be given for product of broadcast. We have tried to investigate, internationally and domestically, what are impacts where this kind of dispute has arisen? We have not found a single case that would justify all our time on designing this instrument.

Third point: In many respects, after last meeting, we are all very clear that simulcasting and webcasting would no longer be included in new treaty text we are considering.

Unfortunately in the new text that has been given, some of the expressions that we have had major reservations about have come back into the text. I don't want to take up too much time on this issue, once we are all in agreement about separate instrument, it is possible that by some international laws, not be intent, but if expressions not modified, then could mean that definitions of words in other contexts could bring back in. Netcasting.

"by any means"
Article 5.d

Article 9 "by any means" "over computer network"

Article 12 direct or indirect reprodn "in any manner or form"

Article 13 "making available to public"

Article 14 "transmission by any means
art 15 - by any means

All these articles can be interpreted as including simulcasting.

In next draft ask that they be cleaned out of all references likely to be interpreted differently.

To summarize, should like to be educated on need and justification for going beyond piracy.

Chair: have spent long time in technical process, have not been focused on objectives. Good time to think on that, to gather reminders and considerations, in order to be able to consider and formulate treaty with necessary elements that explain nature and status of brdrs ' role in super exco nature.

Last point, on protection of Internet retransmissions, several places where acts taking part over computer networks are subject for protection not as object of protection themselves but rather are defensive rights of protection for broadcasting organizations. Included intentionally, to allow you to consider it. Does not bring Internet or IP protocol in to scope of protection of treaty but does bring them into operative area of treaty.

Iran:

We associate ourselves with the statement of Indonesia made on behalf of the Asian Group. We support the protection of broadcasting organizations through a signal protection approach.

Article 9: The words "by any means" and "over computer networks" refers to webcasting and should be removed.

Article 14: Post fixation rights don't have a chain of connection.

Regardless of nature of rights, the following refers to webcasting;

Art 13 - JJ Alt

Art 13 - HH

Art 15, Alts R, and S

Chair:

Thank you for your analysis of the content of the provisions, their impact and their intended application. You clearly articulated the areas where you found clauses on transmissions over computer networks as areas where these are not objects of protection but areas where br should have rights to take action.

Perhaps in light of India's comment, we should take a look and see whether these make sense. In operative marketplace, need and analysis of market and whether these rights are in fact needed. I plead for your tolerance. That we have the opinion that these elements should be here, and should also not be there.

e.g. traditional broadr areas, signal in area, reception area covers part of another country. Another person engaged in webcasting, operating in broadband using Internet Protocol, person picks up signal from air and retransmits to other parts of country where no one could receive it, and webcaster starts transmitting in other country as a business venture. Is it appropriate for first person to retransmit/ not have right to take action retransmitter to protect the investment?

Does it make sense to offer that sort of incentive to webcaster against person engaged in retransmission across internet? Defensive element; would not bring retransmission within scope of protection. May ask for balance, in market, where engaged in retransmission. only original broadcaster protected, not retransmitter (as under Art 6). Second or third time that I have tried to give an example to try to explain this, and now up to you to consider whether fair to have this sort of protection.

It is the original broadcaster that is always protected against retransmission over computer networks.

India:

Thankful for example, to explain the logic of protection. While can empathize with e.g. and potential loss that might be suffered by broadcasters as result of such piracy, I have three basic questions on this. I am seeking further clarification on issues on my mind.

(1) It [retransmission right] is not a proposition that you as Chair have brought into treaty. As you said earlier, this treaty has come from proposals put forward by member nations.

I will be happy to be enlightened to know which country has made this proposal so we can take this into account.

(2) If the broadcasting organization in the example you've given, whose signal is being taken, is it not the case that IP rightsholders are suffering the same fate on the net, then millions of IPR rightsholders suffering same way on net. If a br org is treated same way.

Are we not trying to give a higher level of protection to a broadcaster
over original rightsholders as far as transmission on Internet concerned?

(3) In this treaty the contracting parties are the member nations and this an obligation cast upon the member nations. If there is a netcaster engaged in this indiscreet activity, it could be quite difficult to enforce this obligation. What are the means at our command at enforcing this obligation on the retransmission over the "net" (i.e. over a computer network)?

If there is a webcaster engaging in this indiscreet activity on the Net it is very difficult for us, with out current level of development. It is very difficult for us to take enforcement measures. Made issue of discussion in last 4 years, b/c Net largely unregulated. Still developing tools to enable MS to enforce this. Happy when we put this aside at last meeting. If we still want to import this element, then I would like to ask the proposing government to justify this extra protection.

Chair: there were several proposals that put forward retransmission rights. Will need to check. Second qn is whether content rtsholders would at same time suffer same fate as copyright owner, Yes, as should be. Modicum of investment as basis for granting rights.

Third question is related to enforcement. Web or necasting would be within scope of protection. In my own country, the qn of Internet redbn has been subject of legislation and ongoing reform. Whether you have right to monitor online communication where you have data protection, like mail.

Break 4:45 - 5:15 for consultation, TPMs after that.

Mexico:

Art 5 - transmission intended for public - so don't agree would limit access to information. Believe that rights being discussed are like those in TRIPS and Rome. Over half of countries in Latin America have Rome rights.

Australia:

It's always worthwhile to consider the meaning of terms we use. We know the noun "broadcast" has been used in Berne, TRIPS etc. Given the membership of the
treaties, there's a shared level and common understanding of such a well used term in such treaties We understand that it is a program carrying signal which leads us to long-argued point about separation of content and signal.

As far as end users are concerned, only thing they are interested in is the content of the signal. Professor Andre Lucas noted the concept of layered rights such as a sound recording. The protection we are proposing for the program signal does not prevent the owner of the content from exploiting the content in any manner she chooses.

Question was raised about whether any need for downstream uses. Worth recollecting the opportunities since Rome convention concluded for cable, satellite and now Internet restrnamsission, seems to throw up gaps in protection. Object of treaty negotiation to create protection where gaps in protection.

We support the protection for broadcasters of retransmission over computer networks including the Internet. Mr. Chair, you've already indicated the reasons why needed, we just want to express our support.

Also support protection for prebroadcast signals. As for Art 10 - rt of communication to public - this delegation's first preference is for deletion of that Article from text, but if retained, prefer alt. M that permits reservations to be taken on that point.

El Salvador:
Delighted to see you back as Chair!

We believe the draft treaty is at a stage where can move fwd. We support the view expressed by Mexico and supported by Australia. Would like to put an end to the technical work and give the broadcasters the rights they deserve. We also support holding of a Dip Con next year.

My country's national laws already include a number of provisions similar to those in the draft text, even more generous as to deadlines for protection.

We believe webcasting should be covered by optional annex, would be useful and not hold up negotiations on treaty.

Chair: integrate discussion of TPMs and relationship with limitations and exceptions.

Previously had simple exceptions and limitations provision, two paragraphs, first included provision from Rome, second, the three step test. Now, since November, we have three detailed proposals put forward by Brazil, Chile and Peru, based on enumerated lists. In different ways, you'll see the three step test embodied in these proposals. Many of these proposals could be merged, would have been technically easy to do so, but in the interests of the new principle of inclusiveness that has guided our discussions, we have decided to include them in all their full detail.

There is this well recognized question of beneficiaries of exceptions and limitations, where source of information is covered by TPM, whether the beneficiaries would be able to benefit from e and l, for some they are like rights, and for some others they are like facilities for means provided for the benefit of the end users (consumers).

As promised, we have the document put forward by the European Community. At end of that document you will see considerations which relate to use of TPMs and how and which areas there could be mechanisms for beneficiaries of limitations and exceptions to benefit from them. Now time for one or two interventions, then continue work at limited session tomorrow morning at 10 am, to allow time for adequate consultations.

Indonesia (Asian Group):

On behalf of Asian Group: The group does not support any provisions that would provide for legal protection of TPMs. Would stifle tech innovation and restrict the public's ability to access information, and restrict access to public domain works.

Concern that TPMs could restrict access to scientific information and culture.

The inclusion of such measures could also stifle innovation that could be already in the public domain.

We recommend that Article 19 should be deleted.

Chair: yes, India, err, Indonesia, there is the proposal that there not be a TPM provision. This was so self-evident that I omitted it in my introduction.

[GH: Article 17, Alternative W is now back in the revised treaty draft. It was not in the previous draft, but was in the accompanying "Working Paper" , document SCCR/14/3]

Brazil; We have not been very outspoken b/c we believe much of our position has been stated at last meeting and recorded in minutes. Many of our contributions now retained with fusion of two documents, and can be used to infuse our discussions. Our lack of interventions does not indicate support for language in treaty. We will put forward specific comments on those in due course.

We support mandatory limitations and exceptions. We have to look at this as a whole - the text must be balanced - rights and e and l. Our position is that TPM should not be included in treaty. Also interested in hearing more from certain members that have in their legislation certain exceptions that constrain how legal protection for TPM can be used, e.g. interoperability, access to cultural and scientific information and making library material available to end users. Lot of provisions in national law and community level law in EC.

If treaty addresses signals, it should actually say so in the text of the treaty, and right now that is not the case. For instance, the defn of broadcasting does not use the term "signal". no definition of broadcast. As rights become greater, more need to define what broadcast is. [Examples - one second TV channel identification etc]. Important for member countries to know what the level of coverage is.

Importance of retaining references to cultural diversity and access to knowledge, which we have supported in previous sessions.

Chair:
List of speakers:

Singapore
South Korea
South Africa
Egypt.

This discussion will continue tomorrow morning at 10 am. Will try to limit discussion to value-added process, and might then cut discussion to fill calendar with appointments for consultation.

Benin.

Mtg of African Group immediately after the morning session.

Adjourned 6:05 pm

===

Blogging WIPO: Standing Committee on Copyright and Related Rights, Session 15 on proposed Broadcasting Treaty

Day 2, 12 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.]

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-=-=-=-=-

Republic of Korea:

Thanks to Secretariat for preparation of informative documents before us and for organizing meeting.

Broadcasting organizations need to be accorded protection to update their rights and to meet the challenges of the digital environment.

In terms of TPM and term of protection, they should be same as has been provided for performers and phonogram producers in WPPT.

At 13th session of SCCR, substantial majority of members agreed that there is a need to update the rights of broadcasters, and our reaching agreement on the draft basic proposal will lay foundation for being able to convene a diplomatic conference, and reach final agreement. We encourage all members to return to the cooperative spirit that existed during the 13th session, and to make best efforts to find common ground necessary to move forward.

Singapore: is a signatory to WPPT. As regards TPMs, Singapore had proposed Article based on WPPT language, now incorporated in Art. 19. Supports convening of DC in early 2007.

South Africa:

President has carefully delineated areas of discussion.

South Africa agrees with limiting scope. Noted with care intervention of Indian delegation on careful definition of broadcast.

Notes intervention of Iran, and agrees with need to clean out document to remove references to "by any means" and "over computer networks" to make object of protection clear.

Second, concurs with Brazil's intervention on desirability of delineating exceptions and limitations. Supports list approach. Must include amongst others, personal use exception. Needed to preserve freedom of speech and enlightened values.

Third, TPMs should be in treaty but needs careful investigation. Should be made clear that treaty does not impact Member States' ability to regulate anti-competitive monopoly conduct. Recommends that WIPO should conduct study of best practices on enforcement of TPMs.

Egypt:

On exceptions and limitations, there are two modalities to organize these. First, to allow some flexibility to MS to enact. Second, is more comprehensive, looks at particular examples that should be included. First modality is more flexible. Sets out general principles that national legislature must take into account in enacting exceptions and limitations. Supports first, which doesn't enforce limitations on national legislature.

I have made several interventions. I want to note appreciation of work done over past sessions. Any interventions I make are made in context of seeking to avoid possible disputes at a DipCon.

Chile:

With respect to limitations and exceptions, thank you for referencing proposal that we made in Nov 2004 on exceptions and limitations for educational purposes, libraries and archives and the disabled. On our proposal for specific exceptions and limitations for the Broadcast Treaty, have proposed these because it is fundamental to achieve a balance in treaty. Also did this in respect of GI in our international instruments. Our delegation believes that limitations and exceptions are a fundamental tool to ensure balance in a treaty. We believe that it is extremely important to have L&E in this treaty.

Thanks EC for their submission, that identifies list of exceptions. This is the approach that Brazil and we have followed, that of identifying a specific list of exceptions.

Also second noteworthy feature of EU proposal. The EU model has compulsory exceptions which are noteworthy, and which cannot be cancelled by contract.

We are not demanding that the exceptions to this treaty be compulsory or that they enjoy the status of not being able to be cancelled by contracts.

With respect to TPM we are not opposed to including these but believe that must ensure that they don't obstruct exercise of legitimate exceptions and limitations and block access to public works. Don't think useful to limit exceptions particularly those that relate to rights.

I'd like to reaffirm our commitment to defense of competition.

Chair: we will continue discussion until 11:30 then break for consultations.

Russian Federation:

Thank you for excellent documents, we have a good treaty draft,

We think main point is package of rights, Broadcasters and businesses looking fwd to new treaty.

Continue to believe that inclusion of TPMs is essential and that provisions in treaty are fully consistent with international practice and WPPT. As we see it, most countries today have in national legislation a higher level of legal protection for TPM. We understand that when we implement these provisions in national legislation Member States will be able to provide higher level of protection. Look forward to concluding work on treaty.

USA:

Would like to reiterate on question of TPMs, that such a provision is critically important for updating protection for broadcasting organizations.

I would like to make technical point, following on from Korea's statement, on WWPT. As we read Art 19 there is not an alternative that consists solely of WPPT TPM language. We would request a new alternative that consists solely of paragraph 1 of Alternative M so that Member States have option to consider solely having language based on WPPT provision.

[GH: Currently, Article 19 Alternative M has two paragraphs. The second is a tools ban provision put forward by Switzerland that would appear to ban personal computers.]

Canada:

Would like to remind you of Canada's June 2003 submission on retransmission, which we raised, last meeting. See para 169 of last meeting's report.

Submit that MS should be able to have reservation to Article 9 included in Draft Basic Proposal.

Today, would like to make amendment to Article 22 that includes possibility of reservation on this point.

El Salvador

Would like to take floor to support Art 17, Alt WW in first para, taking into account that our secondary legislation would support that. We do not support list approach to e and l, prefer flexibility for MS.

We support Alt M on TPMs.

These provisions are in national legislation in most of Central and Latin America where we have adopted WCT and WPPT. We are not dealing with an innovative provision.

Nepal;

We have separate law for CR and RR.
National law includes broadcasting protection.

Would like to commend DC for clarification, supports{?} technological protection, retransmission rights.

Australia:

Previously expressed preference for Alt WW in Art 17 which replicates WPPT formulation. In so far as Alt XX incorporates list approach of Rome convention, can agree to keeping that on table. Is consistent with approach of Australian copyright law to have specific exceptions and limitations and based on recent EU submission, seems to be consistent with EU law. The list approach would require agreement amongst countries on contents of list, which could pose problems.

Would support e and l for non commercial use by libraries and archives, but may need clarification. Perhaps way to reconcile with three step test is to have list that is consistent with the Three Step Test, as we understand is EU approach, except that we would support non-exhaustive list.

Chair: China asking for floor. We have two minutes.

Mexico:

We support Alt WW in Art 17. {GH: meaning Alternative MM?]Would be risky to think of exhaustive list.

Mexico believes that TPMs are vital for adequate protection of broadcasts.

Chair: Taken note of request for floor by China, Morocco and Nigeria, Kenya, Benin

Nigeria - announcement - African Group meeting in Room 127 immediately after this meeting.

Chair: will give opportunity to noted countries to speak on TPMs and E and l at suitable time. Meeting adjourned for bilateral discussions, Will reconvene at 3pm this afternoon.

11:32 am

---
3:44 pm

Chair: Will continue, then break for more consultations shortly. Perhaps opportunity for more general interventions later.

China:

On May 10 this year we adopted regulation on Internet communication right, came into effect on July 1. Deals with rights of CR owner, ISP liability. Expected later this year that China will become new member of WCT and WPPT.

E and L: form an important part of the treaty.

They are an important way to balance broadcasters' rights with the public interest obligations of broadcasting organizations.

Crucial to guarantee public interest or avoid unreasonably affecting the public interest.

We are of view that Art 17 forms a good basis for our discussions. We are thinking about WW alternative. We hope that the Treaty will contain more general provision. Providing a list may give more direction but less flexible for national legislatures. Concerned that exhaustive list won't allow sufficient flexibility for national leg to make domestically appropriate exceptions.

Morocco: We would like to speak after Africa Group presents their position.

Kenya: we would like to speak after Africa Group presents our position.

Nigeria: Thank you for giving me the floor. Could you please give me some time to consult with my group before I give the African Group presentation?

Chair: Benin? I see the same thing?

Benin: I would prefer the coordinator of the African Group to present Group view but reserve right to take floor later.

Switzerland: We support all efforts to finalize treaty with aim for GA to convene a DC.

With respect to cluster under discussion, we vote for alternative WW because this corresponds with WPPT.

With respect to Art 19 on TPM Switzerland would like to support US's suggestion. We would like to see the same provision as in WPPT. [Not because the second paragraph would constrict parties [GH: no of course not. Note that Switzerland proposed the second paragraph of Art. 19 TPM provision.] but because this possibility is already contained in the WPPT.

Dominican Republic:

As to the exceptions we support proposal "ww" as it confirms with our national legislation. We are flexible as to the proposals from Brazil, Chile, Peru b/c treaty should allow us to balance rights with exceptions and limitations. Our national legn does not include these provisions. Would support TPM provision but we do believe that these provisions should not be detriment of the public.

Chair: would other delegates like to speak, before African Group consultation? No one will be denied the floor but don't want to prolong debate. Opportunity for more general statement.

My plan is to have a break for consultation and then reconvene at 5pm.

[Something about not putting forward proposals without consulting with delegations. Would like to consult on possible proposals, but not want to put forward any proposals that would be unacceptable to you.]

It looks like that delegations would continue this intense process of being in touch with each other.

Well then, we'll have break and reconvene at 5. Those of your who are in a position to provide some reports on your consultations and the results, we now must find some corner. That process must now start.

---

5:40 pm

Chair: we are engaged in a "simul-consultation" process, spreading as much info as possible. We are not at end of discussion of substance. We will break at 6-7:30 then have more discussions.

Nigeria: On behalf of the African Group.

Hope that progress will be made on discussion of all issues of substance and that will have movement on next course of action.

Discussions underway for almost a decade. Regional consultation last year.

Concerns - interest of public, access to information and knowledge, rights of creators such as performers and artists. Issue of term also important. While supports 20 year term, notes that some members of Group have longer terms.

Access to knowledge and information very sensitive subject. Broadcasting is important sources of access to knowledge.

Impact assessment study appropriate.

TPMs important. Exceptions and limitations are impt for policy space, determining priorities and principles.

Concerning DC, believe that best option is convening in 2007. Chair's opening comments suggest that this would be likely possibility. AG would therefore join the emerging consensus supporting this.

Morocco:

This commission has been working for 8 years and has studied the topic on all aspects. Many delegations have contributed many proposals.

Believe that first 6 mths of 2007 is a good timeframe for convening Dip Con.

Are aware that there are a number of matters that need to be resolved before DipCon. Several technical matters. This text does not refer about broadcasting only, which is the topic that has considered many delegations, including the Africa Group read by Nigeria, require further study. Topics including rights and definitions. The formulation requires legal information esp. Art 5, 7 and 9. We have to be very accurate to have co-ordinated text from legal pt of view.

AS regards TPM, we promulgated new legn on 14 February which has opened the door on tech developments, and anything that deals with e and l, we do not believe that we cannot protect rights with out protection and that we need TPMS. We believe we need national legislation to development of technology. We have already stated that door has to be open because access to knowledge under e a dl may be affected.

Kenya:
Hopeful that negotiations will lead to holding of DC in early 2007. Treaty long overdue. Progress taken in thrashing out issues surrounding webcasting. Support 14 SCCR decision to treat in separate instrument

Support non exh list on l and e

Not opposed to inclusion of TPM in treaty but would like study on impact on A2k to knowledge and culture. Not opposed to e and l on competition and cultural diversity

Benin: We came to this meeting believing that treaty is necessary in our ever changing world, which forces us to change along with it. Treaty nec'y b/c br orgs need protection of investment and for public interest b/.c br of capital importance in area of education. Of course we must provide them with appropriate protection but not at any price. Protection which represents an evolution in relation to earlier treaties and makes progress like TRIPs. Our delegation remains open to discussion on critical issues. Art 9, must be viewed in light of 5(b) and 7, e and l, and TPMs.

Benin enacted Act in April that contains no of provisions which are along same lines as the TPMs planned for treaty, in a reasonable manner, so that these should not bind or be obstacle to devlt of br orgs. The protection of br orgs is justified and should not be antagonistic or superior to IP rights. We must bear in mind that we cannot allow for the theft of signals of br orgs and cannot create obstacles for br org's work. We must be equitable. We should arrange for holding of a DC as soon as possible. We would support holding in early 2007.

Egypt:

Expresses support for African Group intervention, and interventions from delegations of Morocco and Kenya. Shall not go into details of Articles, because after 8 years, views are quite clear on treaty's provisions. during coming period should focus on ensuring balance between elements that seem contradictory. Must find balance bw br and other stakeholders, a2k, and protection for br, e and l. convinced that WIPO and Chair of SCCR that any language in treaty will bear all these issues in mind, and will take into account all comments made by all delegations, and that final text will be suitable for submission to DC and that DC should be held early 2007.

Chair: 6:05. We've come to end of discussion on e and l and TPMS. Will continue with general assessments and report on consultations. Suggest will reconvene at 1945 (i.e. 7:45 pm).

6:06pm Adjourned.

===

8:35 pm Restart

[GH: Were scheduled to start at 7:45. lots of discussions taken place "informally"]

[TB: We have heard in the break that there is a new text that has language which removed the exclusive rights approach with the exception of the right of retransmission. The new approach apparently is along the lines of "adequate and effective protection".]

Chair: Would like to ask delegations who have been engaged in consultations, if they could report on them here. Then I would like to make some statements, and assessment on where we are. Depending on the discussions, I would like to offer an outline of a list of items to be considered when we consider conclusion of the meeting. The name is not important. After we have had that discussion, I would like to see if there is some reaction, or comment. Depending on that, overnight, I will produce a set of conclusions for your discussion tomorrow.

I am in your hands. The floor is open for any information from the consultations.

Any delegation that would like to make a statement about the state of the art, the avenues you see here, what options might be possible?

We have had useful discussions. Some of them on revisited nature of rights, on L&E and TPMs and will form basis of our report.

Work here is based on the draft basic proposal. Because according to GA mandate, we have the task to prepare a DBP.

[GH: Note that Head of EC delegation, Tilman Leuder, is currently talking to Russian Federation]

Chair: so question is what steps need to be taken to get to point where we can agree that work is advanced enough that we can recommend to GA that a DC should be convened? What should be done to the document, to have a revised DBP? We could delete the word "Draft" from the front cover page and change the date of the document but I think it may not be acceptable.

We have learned that we cannot delete some proposals/ alternatives, at least without the consent of the proponents.

It would not be fair as we are working on the principle of inclusiveness
which is a beautiful and useful principle. Now I make a point of morality.

[TB: Tilman was also talking to the US]

Sometimes the minority view is important and we must test this to the limit even if this is just limited to just one or a few members.

This makes our job quite difficult. Some countries have said that they would support holding a DC; some have said that the draft document has too many alternatives. And alternatives cannot be deleted without the consent of those who have proposed them. How far must agreement go on document before we can have a draft basic proposal?

Tomorrow is our last day. This is our task. We have all come to Geneva to create a basic proposal. This will be the third time that the GA will consider convening a DC.It will be an empty agenda item if we do not have a clear agreement.

There could be no result from this Committee which would not imply some risk in the decision-making.

DC are for negotiations, to discuss what needs to be resolved.

If we are honest we know there are many issues that are more crucial than the others.

In process, we need to establish some conclusions. Let us go through them point by point.

One, if we cannot convert ourselves into a drafting committee, whether it would be possible, and under what conditions we could get to instructions on finalizing a proposal?

I will now offer you the ideas I have in my head on how a set of conclusions could look like. When I come to the details I will repeat the details, then ask for your prima facie or a more profound reaction

We would start with several preambular paras, outlining the GA mandate that we should expedite discussions, and finalize basic proposal.

Note that first task was undertaken at November 2005 meeting, and second task, draft was produced for discussion at May meeting. And now a third meeting has been organized (more than mandated by GA)

The first draft was considered at May meeting, and finding was that a revised version had to be prepared and that was done, and produced for discussion and the presentation completely refined for discussion at this meeting

The revised draft basic proposal was confined to the protection of broadcasting and cablecasting in the traditional sense.

All this in shortened form in preamble.

If we agree that we move forward. then the Committee could observe that treaty on traditional br and cablecasting is on advanced path of discussion, then there is a consensus on convening a Dip Con

then in our conclusion we could recommend that a DC be convened.

The task and objective of that conference is to conclude a treaty on the protection of broadcasters and cablecasters in the traditional sense and scope would be confined to protection of br and cablecasters and as we have learned in our discussion, that this does not preclude inclusion of defensive rights of Internet retransmission, and note that this has been contentious. That a basis proposal would then be prepared for discussion at our November meeting.

The Diplomatic Conference would take place in 2007. A list would be prepared of states, IGOs and NGOs to be invited to the Dip Con.

Task of prep committee could be considered here. Could consider rules of procedures, and a list of states, IGOS, NGOS to invite to DC. could also use prep con in other useful ways to promote the business.

In the end of the recommendations there would be (if so decided), a reference to consultations and informational meetings

reference to consultations and info meetings that should be organized at request of member states as way to promote the work.

Those meetings would be hosted by Member States that so volunteered.

In middle part, there would be the drafting directives or instructions, about the preparation of the basic proposal. There could be some general directives about how the document should reflect the need and nature of protection. May be stress the orientation of protection toward signal protection, carrier, not program.

Seems would include maybe 10 items. Including a revised preamble to more clearly state the objectives of the treaty. To make the objectives understandable and more comprehensive.

Protection and promotion of cultural diversity. They should be considered on what to do with these articles. They have been proposed and contested.

What should be then done with these articles? Should they be put in the preamble or in the main body or should they be deleted as some have proposed.

Which should remain as articles, or be deleted as some have proposed.

In area of definition, at least one new element should be included in package

The definition of a "signal". In light of the discussions, at a minimum, the notion of a "broadcast" should be explained, or perhaps defined. Mentioned in corridor conversations.

Would anyone be able to define a "signal".

One delegation said that have known what it is for 46 years, and for another 15 since TRIPs agreement. One possibility is that by defining these terms, further clarification could occur.

Definition of "signal" and an explanation of "broadcast".

On scope, there is some legal discrepancy if not inconsistency. Some of the discrepancy may disappear if we define these two terms.

On rights, we should clearly identify and describe which kind of rights should be there. Should be an exclusive right of retransmission, Broad right, by any means, including over the Internet.

There should be an exclusive right of retransmission (broad right).

We should say something about national treatment. This is the prevailing principle.

We could look the rest of the rights,

fixation-to check whether this right would be exclusive

reproduction-

distribution

pre-broadcast signals

post fixation rights "right to prohibit" or the formula which has been used

"parties shall provided adequate protection".....

concentrate on unauthorized acts..

In these discussions this is prevailing consideration for rights.

Right of fixation is in majority of countries of world is an exclusive right. We should check if this should be an exclusive right.

Making available

For post-fixation rights, we have alternative, right to prohibit. Question whether to formulate and group this way or use the pre-broadcast formula - adequate and effective approach. Concentrate on unauthorized acts and right to prohibit. Lower level treatment.

On national treatment, for those areas of treaties where treaties would allow different levels of treatment, where countries may select different levels of rights, then a justified claim to consider whether reciprocity should be allowed to avoid unnecessary benefits.

In any case, the history of performers, when introduced six years, as possibility to prevent. Was introduced because one country could not accept excl right. When countries implemented, started to implement as exclusive rights and exercised national treatment between each other.

That generous kind of situation prevails in many countries of the world including Europe, in Latin America, Asia, in Europe and Africa.

Limitations and Exceptions

Have to consider scope - broad or narrow. If scope was designed to be narrow, and by stressing signal, then not proved that need for e and l would diminish.

If the scope of the treaty is designed to be quite narrow (signal protection)-the need for providing L&E could diminish.

Then we could ask whether a general flexible approach would do it, or need a specific list, then whether we need the 3-step text or not?

TPMS: if the protection would be very narrow, then who knows whether the rather strict protection of TPM would become acceptable. Needs to be tested still. If not, what there can be there, since they are considered to be essential to so many and there is a proposal to remove them.

Term: there is agreement on 20 years, where it starts is not so clear. I will propose this in a document tomorrow morning and we can see whether we need to have a seminar to discuss when we start to count from.

It's a fascinating question-"when does the term start". Maybe we could have a seminar on this? [TB: generates laughs]

Eligibility: whether should be open or subject to ratification of other treaties.

I will now in short give the list again.

1. Revised Preamble

2. General Principles (2,3,4)

3. Definitions

4. Provisions of the scope to clarify

5. Rights and Protection

6. National treatment and possibility to provide for reciprocity

7. L&E

8. TPMs

9 Term

10. Eligibility

"There is pain in every corner of the house and we all have different diseases".

The precise document would not be under your nose tomorrow or even at the GA but there would be drafting instructions.

The next draft would be a Working Paper not a final draft, Basic Proposal. Would be a draft for proposals to be put forward, views to be formed, things to be included or deleted.

Then information sessions. National consultations and regional consultations.

[TB: Will civil society be involved in these meetings]

DC would take 3 weeks (not 3, not 4) there will be things to be considered.

Small things are time consuming.

In order to get organized, will take a few days. Then time for middle part of conference to deal article by article, make proposals, consider, deadlines, open-ended consultations. If the process is exclusive, we have learned, then you cannot guarantee a success.

Deadlines for proposals, consultations,

Battle of intellects-constructive ambiguity.

Civil kind of battle of intellects on argument. Constructive ambiguity. Then everyone can interpret that clause however they wish. If informal, no reporting, everyone has own notes, can interpret any way they wish, gives much flexibility.

The Diplomatic Conference engenders friendship. Then many years later you see the people you have been fighting with, and it is like meeting your family. "You hug and kiss!" "In the end there is a treaty adopted by consensus"

Sometimes there is voting. Sometimes there is a polite delegation that decides that I am in the minority here, and decides to let it go ahead, this problematic treaty, because I see it is what the others want. that is flexibilty.

I have talked a lot.I have taken on some of your role here and discussed these matters.I know that you will say No TPMs, no retransmission right, 50 years not 20 years. Should I let you have discussion this evening or let you have debate tomorrow morning.

You could have dinner, you have deserved.I could no better than draft a dcoument with many points that you will not accept. Then you can debate it tomorrow morning.
If there is a delegation that says that there is something that we cannot agree, something that cannot be included and something that another cannot not have included, then better to identify now, and kill one, and avoid the debate tomorrow.

Some would like to streamline the document, to make work of DC more possible.

Looks like that we would be at the end of discussions. You have all been working, some very hard. Let's meet at 10 tomorrow morning, and I will draft a document now, after this meeting, that you will all see tomorrow.
9:30 pm

Let's meet tomorrow morning at 10 AM and the document will be ready tomorrow.


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