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Sept 2005: WIPO Informal Consultation with European Community States and Group B States and NGOs on Proposed Broadcasting Treaty


Sept 2005: WIPO Informal Consultation with European Community States and Group B States and NGOs on Proposed Broadcasting Treaty

WIPO Informal Consultation with European Community States and Group B States and NGOs on Proposed Broadcasting Treaty. September 13, 2005 -- Brussels

Notes taken by Gwen Hinze, EFF.

Today's meeting was supposed to be an opportunity for NGOs that were not invited to
attend any of the previous regional consultations to put forward their views on the
proposed Treaty to WIPO delegates and Group B Member States. Or so we thought.
Instead, the two public interest NGOs that accepted WIPO's invitation to attend (EFF
and the Civil Society Coalition) were given the opportunity to speak for 5 minutes
each. This, after close to five hours of presentations from broadcasters, an academic
and a practitioner, and nine broadcaster/ webcaster NGOs, all of whom -- perhaps
unsurprisingly -- supported the proposed treaty.

The most interesting part of the day was the presentation from Mr. Leuder , the Head
of the European Union's Unit on Copyright and the Knowledge-based Economy, DG MARKT.
He dared to ask some of the real, hard, questions, and stated that the EU still
needed to be convinced about the need to include the U.S.'s webcasting proposal in
the treaty. (The EU has proposed more limited simulcasting rights.) :

"The European Community is still in contact with the US about the scope of the
proposed treaty - and particularly, whether webcasting should be included. The
European Community and the US met in Helskinki recently. The US is interested in
protecting its nascent webcasting industry. However the EC has a different focus - we
are interested in protecting the value of EC broadcasting industry. Need to have
discussions to bridge this difference of opinion about the scope of the proposed

Do we feel strongly about the added value of the treaty? This will determine level of
debate with our US friends. It is a question of political judgment as to whether to
include webcasting. We do not want to prejudge that political judgement. We are in
listening mode today. After hearing different views, we will have candid discussions
of proposals and merits tomorrow. EC will make its own decision.

A Diplomatic Conference must merit its name in that there must be agreement on all
open matters before we meet in Geneva, in order that we can proceed diplomatically,
without having substantive differences of opinion."

The Chair also seemed to acknowledge that the U.S.'s webcasting proposal had made
treaty progress difficult.

We hoped this would result in serious debate about the substance, merits and
practicalities of the proposals. What are the different ways to protect against
signal piracy? Should broadcasters, cablecasters and webcasters be able to control
all post-signal-reception uses of fixations of their transmissions and what are the
costs to the public of doing so? Unfortunately, in place of discussion, we heard
that Member States should go ahead with the proposed treaty because work has been
continuing at WIPO since 1998.


Welcome Address by Mr. Bengt Olav Hermansen, Deputy Director General, Department of
Media, Policy and Copyright, Royal Ministry of Culture and Church Affairs, Government
of Norway:

Norway has consistently supported the work of WIPO in relation to copyright and
related rights. Now that there have been 6 regional consultations involving
representatives of 75 countries, it is time to bring the work to a conclusion and ask
the General Assembly to convene a Diplomatic Conference. It is for this reason that
Norway suggested holding this meeting.

In light of recent discussions on the proposed WIPO Development Agenda, it is
important to note that the vast majority of developing countries are in favor of
concluding this new treaty.

This meeting is intended to give the countries that are here and NGOs the same
opportunity as those that have had regional consultations, to ask any questions that
remain unclear. It is apparent that we are ready for the treaty to move to a
Diplomatic Conference, to be held in the second quarter 2006.

Program for 13th. [ Ed note: it ended up being presentations by broadcasters and
academics in favor of the treaty for over five hours, then five minute statements by
nine NGOs including the only two public interest NGOs in the room - Civil Society
Coalition and EFF]

Program for 14th: reserved for Member States - to consider what message should be
given to the General Assembly and to other Member States. Also some further analysis
of proposals.

Mr. Tilman Lueder, Head of Unit, Copyright and Knowledge-based Economy, DG MARKT,

The European Commission welcomes that WIPO is hosting this event, and that we have
experts from broadcasters, academia and civil society that will give us the broad
picture. For any new treaty, we must have a clear understanding of what is the added
value of the new treaty for industry, and particularly for European industry? What is
the stated aim? Is this the best way to obtain stated aim - and best for achieving
growth and prosperity of European industry? So, the question to be answered is what
is the added value of this treaty for EU and member states?

The European Community is still in contact with the US about the scope of the
proposed treaty - and particularly, whether webcasting should be included. The
European Community and the US met in Helskinki recently. The US is interested in
protecting its nascent webcasting industry. However the EC has a different focus - we
are interested in protecting the value of EC broadcasting industry. Need to have
discussions to bridge this difference of opinion about the scope of the proposed

Do we feel strongly about the added value of the treaty? This will determine level of
debate with our US friends. It is a question of political judgment as to whether to
include webcasting. We do not want to prejudge that political judgement. We are in
listening mode today. After hearing different views, we will have candid discussions
of proposals and merits tomorrow. EC will make its own decision.

A Diplomatic Conference must merit its name in that there must be agreement on all
open matters before we meet in Geneva, in order that we can proceed diplomatically,
without having substantive differences of opinion.

Rita Hayes, WIPO Deputy Director-General for Copyright and Related Rights issues:

Thank you to previous two speakers for laying out issues. Thank you to Delegates for
coming back after August break. Thank you to NGOs - speakers will give us food for
thought; opportunity for clarification. Encourage Member States to ask questions to
clarify outstanding issues before return to your national governments.

If European Commission has concerns, we hope to resolve them in next two days. To
address the previous speaker's question: what is added value of treaty?, theat is an
important point that we need to clarify and convey in next two days, otherwise we at
WIPO and in this room haven't done a good job.

Also in relation to webcasting: the Chair has put forward some alternative solutions.
It is important to all of us, to look at where broadcasters are, and issues facing
them, to understand need for treaty.

It has been 40 years since conclusion of the 1961 Rome Convention, and have been
working on this proposed treaty for the last 8 years. Don't need to elaborate on
that further. There has been much technological development - important to consider
what it's doing to vast number of mechanisms of delivery and no of people involved in
receiving content. Satellite and cable overtaken traditional broadcasting. Must
consider ease of copying. With growth of technologies, need to look at this from
point of view of everyone, industry and consumers. Need to consider new types of
business models that prevent infringement.

This poses a challenge to both developing countries and the developed world. These
changes are important both to developing countries and to you in this room, the
developed world, because in the developed world, the technologies are more advanced
and there is increased signal piracy. Many countries' national legislation have dealt
with this comprehensively. But there are holes in this framework. Need international
instrument now because there are no borders -- no boundaries -- in these issues.

Recent discussions at WIPO re development. Broadcasting Treaty is an important step
in this process. Broadcasting is all that many Developing Countries have to protect
their traditional culture, and provide access to that. Broadcasters are the most
important people in providing channels to culture for people in these countries.
Internet connectivity is often less availbable, so broadcasting is more important.

The development of the broadcasting industry is at stake here. There will be no
investment in that industry without strong protection - for instance, consider cable
theft in Philiippines. Premium cable less valuable there b/c of widespread cable
signal theft. Facing similar issue in the European Community with sports events. As
technology developments, all entertainment -- including movies -- are now or will be,
at risk.

Recent UK study on downloading of content. So impt to be discussing this now, and
long overdue.

The WIPO General Assembly told us to expedite our work and move forward to a
Diplomatic Conference. We've been discussing this for 8 years. Technology continues
to change and piracy gets worse. Time to adopt international instrument to have
comprehensive framework.

Goal of this meeting is to allow opportunity to ask questions on two documents in
front of you. In honest way, to come forth about some of the very common
misunderstandings about these issues - those that the Secretariat has had to deal
with. Let's spend next two days getting clear on these. Conduct and conclusion of
this mtg is completely in your hands. You as Members have to make this decision in
way that meets your national needs, regional needs, and overall global agenda.

As I look at the European Community and the proposals that they have made, and the
concerns that they raised in a very comprehensive text -- all those concerns have
been addressed -- and at Japan, which put fwd a proposal and US.

We can put forward a report on the regional consultations that have taken place, but
in general, it's quite clear that they were ready to move forward to a Diplomatic
Conference. In response to comments before [ that is, Mr Leuder from the EC] no-one
wants to move forward to a DipCon if it's not going to be a success. So let's talk
through that.

Having been to all the regional consultations, I have to note that Jukka Liedes has
done a great job at being a neutral Chair and moving this treaty forward.

This is not a final processs. After the General Assembly there will still be the
meeting of the Standing Committee on Copyright and Related Rights in November, which
will produce another consolidated text in the 6 months before the Diplomatic

Chair of the WIPO Standing Committee on Copyright and Related Rights, Mr. Jukka
Liedes (Director, Culture and Media Policy Division, Ministry of Education and
Culture, Helsinki):

Proposal to update broadcasting protection has been discussed for over 7 years. Last
June was feeling that process should be brought into concluding phase, and that
should be moved into intergovernmental process, a Dipcon. First consolidated text
was prepared 6 mths before that, on basis of proposals presented, and debate.Not much
room for debate, based on 15-17 proposals put forward. Debate at June SCCR based on
that. In Sept 2004 GA not able to decide about convening of DipCon, postponed to
2005, and asked SCCR to accelerate its work with view to considering convening DipCon
at GA in Setp 2005. Extra year's work has added to prospects of guaranteeing
successful conclusion of process. Time ripe to conclude.

After November 2004 SCCR, revised documents. Things were quite clear. Vast,, vast
majority of Member States were not in favor of webcasting or even simulcasting.
Absolutely clear that couldn't continue with mandatory extension to webcasting
signal. WIPO Int Sec then organized six regional consultations. Chair participated in
each of these. Gave authentic explanaations of language in documents before you. Role
not to defend anything in documents. Member States had requested these meetings. The
WIPO Secretariat was just facilitating that request.

Representatives from 75 countries participated in those meetings. Three of those
regional consultations were closed. The first day was open to academia, some NGOs --
limited participation. The consultations were closed in sense that WIPO Secretariat
was not present when substantive discusssions took place, except that as the Chair, I
came in to the meetings to answer questions.

The consultations in Latin America, Central Europe, Asia Pacific, were all open.
Probably b/c chairs wanted to have WIPO and all experts present to have issues
answered. Quite revealing what questions asked.

In Africa, the representatives that this treaty is exactly what Developing Countries
currently need. Also discussion of webcasting, Apparently many African broadcasters
are also engaging in webcasting.

And it was particularly notable - there was one Kenyan delegate -- a former LLM
student of Stanford -- and an open source enthusiast, a follower of the EFF on these
issues, who then came out and said that we should have webcasting protection.

In the Latin American meeting, Octavia Alfonso from Brazil was unwell and not able
to be present so Brazil sent a diplomatic observer.

Chile - put forward reservation. It was not convinced for the need to hold a
Diplomatic Conference.

Chair: So, there are a handful of countries opposed to entering into the concluding

At the meeting in Manila - China and Malaysia strong proposals. India (as always
expected) had strong concerns; added separate document refelecting its concerns.

2nd revised text. All references to webcasting removed, to reflect views of 95% of
the developing and developed countries.

Russian delegate has claimed that the treaty includes webcasting already by
inclusion of retransmission "by any means" -- and the wording of permitted
retransmission over computer networks. That would indeed be an interesting loophole
for broadcasts.

The question then is how to continue discussions for webcasters -- those who are
simulcasters - broadcasters who are broadcasting their own information? What if we
switch off the electricity? What if we cease to use Hertzian waves for broadcasting,
and start to use webcasting technology? Would just be webcasting technology then? As
we consider this treaty, webcasting should be understand in broad way. Broadcasting
should be understand to be broader than transmission over Hertzian waves.

Then the US took the approach that made everyone's life very difficult.

Jamaica and Trinidad and Tobago, at the Caragena meeting suggested that may be losing
something but won't be able to know for 10 years, so could take the risk and see.
Asked for flexibility in thinking on this.

Nigeria, at its regional consultation, stated that webcasting is just broadcasting.

China has stated that webcasting should be covered. Russia suggested that we: could
have solution with several layers. To have several options at same time. Maybe also
referred to protocol.

Senegal: why don't we close door on this. Let those who want to explore do so and
discover if mistake to do so.

US - has asked us to put all options on table.

So now let's look at the text:

Art. 1 - Relationship to other treaties.

Definition of "retransmission" technically and legally refined. Designed to cover
EC's concerns.

Art 3 - Scope - to address the concerns raised by NGOs in particular, including
content owners' content being conveyed, in paragraph (0) the text now uses the word

Many govts understood the interests that broadcasters should not interfere with
rights of content providers.

Protection does not extend in any way to content. in all operative provisions, use of
"broadcasts". Defn of cablecasting: broadcasts over wire. But we have added the word
"signal" to address the concerns raised by the NGOs.

Arts 9-12: post fixation exclusive rights. Content owners say not signal protection
b/c signal was in the air. This is a semantic question, b/c have to look at purpose.
we already see in many national legn that fixaton is part of protection, also new
transmission of fixation, and reproduction of that, is found in European directives.

Not signal protection purely, go beyond, but all part of output of economic
investment in broadcasting, but we call them signal protection, following approach in
EU directives.

Right to prohibit - much debate over this- We need to (1) explain it better (2)
reformulate or (3) do both. Something needs to be done b/c respectable legal experts
have been questioning this.

Only one, perhaps two, countries that have proposed this - US and Egypt. All others
and at regional consultations have suggested exclusive rights. Seeking flexibility.

Treaty is intended to be anti-piracy only, not supposed to be a basis for licensing
of transmissions.

TPMs - Alt NN now included. Handful - half a number of hand's fingers think this is
problem. Many developing countries think this is an important part of protection.

Term - Seven Member States have asked for shorter term. Singapore [ which had
proposed 20 year term] admits that is has 50 years in its national legislation.
Important issue - what signal is sent to the world if the same rights are not given
to related rights holders.

Art 24 - Anti-piracy only, so any contracting parties should have already joined WCT,
WPPT. This is only a historical issue - it will have less importance over time.

Has been significant investment in time - 13 sessions. Should either conclude.
Dropping it is an option, but question is how to do it in a credible way. Brazil and
india have raised concerns. Project should be looked at on own merits only - are
there elements missing, gaps need to be built. out of the question that 130 members
currently outside of 1961[ ie the 1961 Rome Convention], will join. So should instead
join to a modern instrument.

Options as to web and simulcasting should make it more relaxed. What levels of opt in
should there be? 35 countries have expressed interest in protecting simulcasting -
including the European Community and others. Webcasting is another form of radio and
tv broadcasting, just using different form of technology as basis. Matter of logic.


Ms. Moira Burnett - European Broadcasting Union:

Represents 74 public broadcasters across European broadcasting area. Her presentation
draws on the "25 Questions and Answers" document prepared by all broadcasters around
world and a paper from the Asian Broadcasters Union, including AU, NZ and Japan

Why new treaty needed? Need look no further than press headlines; - overseas sports
events over internet. - Sky has deal to show highlights, BBC after match. - Sites in
UK put up server that permits fans to watch live events. 50 sites shut down. - TV
piracy increased 50%. Invisional study of 2005. As broadband increases in capacity,
will see increase in over the air tv retransmitted over internet.

1 in 5 of illegal downloads in UK, Australia second, US is third.

Would have more downloads if quality better, but that will be remedied as broadband

Satellite signal theft is not a new issue; predates the internet. Estimate of 2
billion $ US worldwide. Asia - increasing 11-12% pa. Canada - 400 m $US per year.

Best way to combat is with authorized service but no incentive for broadcasters to do
so without sufficient broadcasting protection.

It is a global problem. The protection given to broadcasters by the Rome Convention
was crafted to national, technical and competitive environment in 1961. Challenge
now is to update this to take account of the global environment.

Two points - prevention of signal theft; mechanism to authorize use of rights/
mechanism for 2ndy rights lic'g.

Prevention - not to recoup past losses, but prevent what has happened to music
industry already. The broadcasting industry is likely to see multiple of losses
compared to those suffered by music industry b/c of gaps in protection regime. Unlike
music industry, the core business of broadcasting is not based on sale of physical
copy over the counter - ie direct market replacement if eyeballs are elsewhere.
Advertisers and sponsors will seek refund; sublicensing not feasible.

If free to air broadcasters can't prevent piracy they will cease to transmit sports
events. Sports programming is most vulnerable to piracy. But all program content will
soon be in issue. No content will be able to be licensed to broadcasters by content
providers if they can't protect underlying content.

Gaping holes; - retransmission of any signals taken off air; - unauthorized use of
pre-broadcast signals; - unauthorized use of internet simultaneous broadcasts (eg
from pay simulcaster service).

This can be easily fixed by including in new treaty. Thanks to European Commissioners
who made the right decision in 2001[to adopt an EU directive]. Unless holes filled at
the international level in new treaty will be to detrmient of all - both broadcasters
and general public.

Pre-broadcast signal via private feed. No obligation under 1974 Brussels convention
to protect; only discretionary obligation, so no harmonized international
protection for pre-broadcast signal. By comparison, this would be fixed by Article
13 of proposed treaty. Would assist current situation where broadcasters do not have
ability to obtain injunction against foreign counterpart on day of transmission of
sports event.

Europe not an island. Footprint of satellite can be picked up by 40 countries, beyond
EC, to E or S of EU. Piracy can have global effects, instantaneously.

The clear message from the summer regional meetings was that the proposed treaty
should go forward. None of remaining issues are deal breakers. Chair's paper gives
reasonable solutions for resolution, balancing interests of both Developing and
Developed countries.

Ms. Erica Redler, North American Broadcasters Association:

Representing broad group: TV, Pay Per View and Video on Demand providers, technology
and new media companies on technology front.

Agrees with Ms. Burnett. In Nth America: downloading of content, including the first
retransmission over the Internet in 1999 of over-the air tv, has put content
industry on edge of Napster-like situation.

Over last 12 sessions of the Standing Committee on Copyright and Related rights,
there has been ample demonstration of losses. Fact that not measurable doesn't mean
that piracy not occurring. How to value diminshed value of programming that has lost
its exclusivity.

There have been 16 proposals over previous years. There is broad support for new
treaty. Standing Cee has done its work well, especially its Chair. Much progress in
Standing Cee meetings and at regional consulations.

Wishes to speak on several outstanding issues:

- Broadcasters have never opposed webcasting. Desirable if can be achieved without
delay or diluting the proposed Broadcasting Treaty. Broadcasters could accept any of
three options in the Chair's Working Paper.

- Nature of Right. The Right to Prohibit formulation is a reduced right. It denies
broadcasters the ability to provide full range of services, including its public
broadcasting services.

- There are a number of unclear legal questions:

- TPMS - safeguarding TPMs is key to protecting Broadcasts. Measures such as
encryption or US Broadcast Flag only truly useful if backed up by laws. Measures in
treaty allows freedom to governments to adopt the best measures that protect their
purposes, and local rights and exceptions.

Alternative NN [that there be no TPM provision] is based on fearmongering and
misleading impact as to the public interest and existing rights of public. NABA
absolutely rejects this alternative. Tom Rivers will elaborate on this point this

Chair: Outstanding Issues:

Professor Andre Lucas, Nantes University, Nantes:

To go to the heart of things:protection of broadcasting dates from 1961, More
precisely, Strassbourg since 1960. Long history and things have changed. There is a
need for updating protection. Things changed from technology point of view. For many
years, have been concerned with updating protection. Broadcasting protection was
orginally part of whole package of updating copyright - namely the WCT, WPPT. Third
strand is coming along belatedly.

But there has been progress at EU community level - Directive 92/100 -- part of
communitaire acquis -- not same as draft treaty but provides exclusive rights.
Important to note recital - importance to cultural and social development of
Community. Draft treaty not pulled out of thin area. Already exists in many national

So why are things so difficult?

First, there is an objection in principle to copyright in general. Many stories about
this in press since 1995. Many examples of this, following legal status of P2P. So
many are generally critical of copyright. There is a general critical movement
against copyright in the U.S., Australia and elsewhere.There has been debate over the
impact of TPMs on copyright. There has been caselaw in the U.S. and Europe [Ed note:
and elsewhere]. All not very favourable to concluding this treaty.

Second, the grant of new rights to broadcasters causes fear to other rightsholders.
It has always been this way. This happened in 1961. Then, performers were jealous
because they were not given rights. Other rightsholders fear economic consequences of
the arrival of these new rights on the scene.

Third, Conceptual blurriness here. There are still ambiguities as to the intended
object of protection. This is the famous debate about content versus signal.

I'm here representing academia, to answer three questions:

(a) what is the object of protection? (b) who are the beneficiaries? (c) what type of

(1) Object of Protection

Article 3 does not define broadcasts, but that term is used and defined in EU
directive 92/100. What we have here is a semantic problem. There are multiple
interpretations for broadcasts - signal or program, being the result of having
emitted a signal. But it should not trouble us. As the draft currently stands, it is
clear that the object of protection is the signal for broadcasting.

[Ed note: Question how the reference to "signal" in Article 3 fits with the
post-reception rights over fixations of transmissions in Articles 6-9]

There is much variation in national legislation on the object of protection. Consider
UK legislation versus French legislation (uses "program"). But this is just a
semantic problem, just a different use of words but it is the same reality
underneath. The difference in terms is only as important as we make it.

But some say, can you separate the signal from the content? The answer is, not
really.So in draft treaty, the right of distribution can't really relate to a
"signal". But we should not be worried about this, because this is the same structure
that is in EU directive 92/100.

Let's look at the rationale for protection. It is to protect the broadcasters'
investment. We are trying to reward that, so in global terms this means what is put
together and what is broadcast. This is what lies behind the investment.

Not much point in talking about signal versus program because in countries that have
the different regimes, the caselaw is not that different anyway. If you're saying
protecting program (such as in French or Swiss law), still not giving broadcaster
exclusive rights, instead just giving right to protect as a program.

For instance, protection of database: then have rights to content because of
investment. That is what is protected. Doesn't mean that you have *copyright* rights
over the elements.

Another example: No problem with staying that record producer has rights over record,
but not that they have copyright. This is very clear.

The existence of multiple rights can give rise to problems when managing several sets
of rights for which user must obtain authorization. Accumulation of rights can make
things more complicated for user, but conceptually there is no problem with saying
that broadcasters have different rights to rights of composers, etc, with their part
of the work.

What if work is not under copyright - for instance, it is in the public domain? Not
clear that the problem exists.

Sports programs are not a good example.

From the semantic viewpoint, better to talk of "signal", but the important thing is
what rights are given to broadcasters.

(2) Beneficiaries of Protection:

The major discussion is with respect to webcasting. As an academic, my belief is that
law in general under copyright should be neutral. Whatever has the greatest
plasticity will withstand the test of time.If treaty is intended to update the law,
it should includes what we have today.

From technology viewpoint, there are differences - different platform. The most
important argument is from the institutional viewpoint. Webcasting doesn't have same
context as traditional broadcasting. Difference in culture - total freedom on Web.
Economic difference is huge. Only starting to measure, quantify.

A number of countries think not affected by this type of broadcasting. In the
regional consultations, as the Chair has noted, most said they were not really
involved, but weren't really opposed.

[Ed note: Notes from Chair's presentation above. I did not hear him say that.

So there is a political question whether to have it as an option in the treaty.
Option 3 (separate protocol) may be too burdensome.

Option 2 (reservation) has no precedent in international copyright law. Would be
burdensome because each country has to adopt initiative at national level.

Option 1 (opt-out via notification) has broadest consensus. Legal problem -
webcasters would be optional in national law. Would have two levels of protection.
Problem for reciprocity. Will make treaty more complicated. But if that's only way to
do it, then one way. But it's not for me to say.

(3) Rights/ Level of Protection granted: Draft treaty adopts analytical, enumerated
approach. eg Article 6 - Retransmission, simultaneous, deferred.

Might be better not to list them sequentially. In my country (France) we prefer to
give a summary of the rights.

From the political viewpoint, gives impression of stacked, multiple rights. Perhaps
less concern by opponents of treaty if rights described less clearly.

But many prejoratives already exist at European Community level in Directive 92/100.
Others give rise to concerns about dual level of protection, but would go less far
than exclusive rights [ie right to prohibit versus right to authorize]. Conceptual
concern is that treaty would give broadcasters rights to go to judge [ie get an
injunction] but would go further and create basis for whole new licensing industry.

Having difficulty understanding what real legal position would be because this is the
first time that something like this is on the table at the international level.

Exceptions and Limitations:

Criticism of copyright is based on too few exceptions, or that those that exist are
too narrow. This was also an issue when the EU Infosociety Directive [ie Article 5 of
the EUCD] was up for ratification. There was much pressure from users for exceptions
to preserve right to culture, and information.

Criticism that protection for broadcasters would not take sufficient account of this.
What you can answer to this is that the same thing was said about copyright at the EU
directive level, it is no more critical for broadcasters than other copyright.

In certain laws, the balance between rights of users and rightsholders are discussed.
For instance, in Article 6 of the EU Directive 92/100, it mentions:

- teaching, scientific research, use when summarizing topical events.

[Ed note: Art 15 of the 1961 Rome Convention contains a similar but more expanded
enumerated list: private use, use of short excerpts for reporting of current events,
ephemeral fixation, sole purpose of teaching and scientific research. Article 14 of
the proposed treaty contains two discretionary exceptions provisions - a mirror
national copyright exceptions provision, and three-step test provision, but does not
contain the Rome minimum exceptions list, so exceptions available to consumers,
educators and copyright holders will depend on national law and political will]

This allows us to respond to users. So can't really say that broadcaster rights will
threaten the public.

Technological Protection Measure provisions [Art. 16];

These are very controversial. They are in each of the WCT, WPPT, Infosociety
Directive [EUCD] and the DMCA and were each criticized for legal way that they dealt
with TPMS. Could make same comment as exceptions, above. namely that is nothing
special here. In fact, Article 16 is taken directly from Article 18 of WPPT, so
nothing new here.

The Broadcasting Treaty was part of the original package [WCT and WPPT]. Always
conceived that TPMs for broadcasters.

Nothing really new here. TPMs [Ed note: presumably he means conditional access
regimes rather than TPMS per se] have been used for many years.

Term: Many countries agree with 50 year term for protection.

--------- Lunch --------- 2:55 pm

Mr. Pravin Anand, Senior Partner, Anand & Anand, New Delhi.

* Treaty solution in best interest of all

- content untouched. Underlying works do not merge. Just like rights in music - All 4
rights are separate - perfr, composer, lyric, and broadcaster in Indian regime.

- Indian problems: soap operas being sued by Sony etc (RM rightsholder)

- Satellite footprint reaches outside of India

* Road from Rome

- diagram for how draft tr would work

- only the Pirate and Broadcasting Orgs neglected at intl level. Everyone else has

- Indian Internet cases -underline need for Treaty:

Ten Sports v. Doordarshan - - exclusive rights to World Cup soccer - life of 30
days.John Doe order granted by New Delhi High Court in June 2002. 3100 licensees of
cable who had stolen signal were identified and joined as defendants.

But Court held that "Watching cricket is in public interest" so exclusive
rightsholder could not enforce.

Online Framing - Crt granted injunction(?) - stopped, even though no specific law to
do so.

Phishing - Indian crts stopped phishing, 16 million rupees in damages.

* Scope of protection

Ten Sports case - broadcast of a sports event stolen by cable or satellite receiver
then internet retransmission - sports events, music, concerts,religious events, all
stramed on the net, so all vulnerable - Warez - 23 milion websites

On webcasting, option 1 is best approach. Don't push it under carpet.

Nature of Rights -Art 9 -12 Right to prohibit - tracks unlicensed uses Right of
Authorization - broader right , gives basis for licensing of uses.

Right of Remuneration - compulsory or voluntary license.

* Protection of signals prior to Broadcast - Art 13.

- Equivalent theft. eg. stealing manuscript or proof sheets ahead of book.

* Term of Protection

- Doodles (artistic), short poem (literary) and basic tone / musical work = 50 years'
protection also, so appropriate to give to broadcast.

- particularly where fair use and other measures exist in national law.


Rightsholders' technological measures can be circumvented. eg marker pen circumvented
Sony's Key2Audio eg. Therefore need laws to outlaw circumvention.

Encryption and decyption help define viewership for cableproviders. Under-reporting
by cable transmitters big problem in India. Theft of decoders and decrypters is

TPM provision in Article 16 of the proposed treaty is worded same as language of Art
18 of WPPT.

Conclusion - Treaty is needed to:

- recognize investment of broadcastsers - protect them against modern piracy - and
to protect performers, phonogram producers - most troubling issue is overlapping
rights - but Mr. Anand believes there is clear caselaw stating that there is no
merger of different types of copyright (eg in musical works) so this is not a problem
as between broadcasters and copyright owners. - co-existence and balancing of
different rights is well known.

------------------------------ 3:35 pm -----------------------------

Discussion of last two speakers:

France: Qn to Prof Lucas - "program" could be considered as container. Program as
ensemble of musical works, in certain order, investment made by broadcaster. Br wants
protection for the package (versus elements).

Italy: Qn to Prof Lucas, where there is a signal but content is not in CR is this a
related right? Are we still under copyright in general? Or is it broadcast purely?
eg. making broadcast of street protected?

Don't really understand right to prohibit in this context. From Roman law, it is a
right to exclude the whole world. I have a right, that everyone can use unless i
expressly exclude them. Using word prohibition in treaty text has no sense for me

Prof.Lucas: on first issue, relp bw CR and RR = yes often broadcast may include
elements under CR but sometimes no CR in underlying content (Public domain etc).

Phonogram may include things not "work" eg bird song. In WIPO we prefer to use
"related rights" versus "neighboring rights" . Just langauage qn so no legal

Civil Society Coalition: Qn to Prof. Lucas: you've said that TPM provisions in WCT,
WPPT, EUCD, and elsewhere are controversial and that the TPM provision in proposed
treaty is based on WPPT,. When is it appropriate to consider the merits of
introducing broadcaster TPMs or are you saying that broadcasters should be given
TPMs because copyright rightsholders have been?

Prof. Lucas: you're right to say that the question of TPMs for broadcasters is no
different than for copyright rightsholders. Your question is should we consider the
problems of previous copyright TPM regimes before deciding to give these to

The problem is in implementation of TPMs at the national level, as we have seen in
national court decisions. The text of the proposed treaty leaves room to manage
reconcilation between rightsholders and other users of TPMs and consumers. Would be
illogical to deprive broadcasters entirely of TPMs just because problems at national
level with copyright TPM regime implementation.

EFF: Qn to Prof. Lucas: In your presentation you stated that the TPM provision in the
proposed treaty should not be seen as a cause for concern because there are already
similar provisions for copyright rightsholders, for instance under Art. 11 of WCT and
Art. 18 of the WPPT.

Could you please comment on the concerns that have been expressed by EFF and others,
that the proposed broadcaster and webcaster TPM regime would have a more detrimental
impact on the public interest than the existing copyright TPM regime for two reasons.

First, because it will act as a greater restriction on access to information. Second,
because a broadcaster TPM regime would require broad national technology mandates
that are likely to stifle technological innovation and constrain competition? ,

Prof. Lucas: In answer to your first point, no the treaty won't restrict the rights
of users because member states can adopt necessary exceptions and limitations. The
Treaty does not exclude that process; it is up to individual member states.

In answer to your second question, as I understand it, you are asking whether we
should not have broadcaster TPMs because technology is becoming more advanced.
Perhaps it is due to my limited technological knowledge, but I think that is a
question for broadcasters.

[Ed note: Ahm, not quite. (1) No one disputes that the wording of Article 16 of the
proposed treaty is identical to Article 18 of the WIPO Performances and Phonograms
Treaty. (2) But semantics don't have anything to do with how the treaty would work in
practice, when it's applied to the Internet. So noting that there's no difference
between the language in the two treaties is not a sufficient basis to say that there
will be *no difference in impact*. To make such a definitive statement, you might
expect some analysis of how TPMs would actually be used by broadcasters, and
webcasters and what type of legal framework would be required to support that. (3)
Broadcaster TPMs rely on broadcast receiving devices. The devices must look for and
respond to the TPM. The only way that broadcasters can preclude devices which don't
respond to broadcaster TPMs from the marketplace is by a national law banning them.
And that would ban free and open source software technologies.]

EFF, attempting clarification: Just to clarify the nature of the first concern, it is
that a broadcaster/ webcaster TPM regime could restrict access to public domain and
non-copyrightable material. This would be the case irrespective of any national law
exceptions or limitations. Could Prof. Lucas please comment on that point?

Prof. Lucas: that would only be the case in a very limited set of circumstances,
where something is taking place on only one broadcaster. In that case, there would be
a need to take measures to protect access.

Where a broadcast program contains public domain material, the worry would be that
the public domain material could be monopolized. If a broadcaster includes elements
of the public domain that cannot have the consequence of reducing the public domain
by granting protection to broadcasters.

There would be a de facto monopoly only where the broadcaster is the sole source for
the public domain material. This is an aspect where the legislature should include
measures to ensure access. I'm not denying that it wouldn't happen, or that it's not
possible, but very limited, and need to include measures for that very limited case.

Mr Anand: the copyright system has its own checks and balances. One can still go to
the source, to access the public domain work in its source. The treaty would not have
retrospective operation, so would not be injecting something into the public domain
within the new right.

We had a situation in India with FM (radio) stations that would give guidance on how
to proceed. There were two collecting societies. One refused to grant a license. The
court granted a license and stipulated the license amount. In a country like India,
this would work by a compulsory licence under Indian law, on the basis of it being in
the public domain, and the public interest where there is no other way to gain
access to the information.

Portugal: Qn to Prof. Lucas: protection of "signal" versus "program". At the
international level the treaty would bring about a change because it would make
"program" (not signal) the norm for protection.

Prof. Lucas: If we use the word "signal" it is a change, but just a question of
vocabulary. But yes, if you to be really purist, yes, this would be a change.

North American Broadcasters Association (Ben Ivins): On the question of the
protection to be afforded to broadcast work that is not otherwise in copyright, must
admit to expressing puzzlement.

Analogy - for example, no question that we recognize rights of phonogram producer in
a recording of work in the public domain, such as Beethoven or Respigi. The same
level of protection should apply, by analogy, to broadcasters.

All regular exceptions and limitations should apply, but you shouldn't be able to
take a broadcast of a public domain work and make multiple reproductions and
distributions over the Internet.


Tom Rivers, Association of Commercial Television (Brussels):

ACT welcomes work done by the European Community member states, the SCCR and the
indefatigable efforts of its Chair. The holding of a Dipl Con in 2nd quarter of 2006
would be acceptable to ACT.

Re Webcasting - all three options acceptable to ACT. Members currently webcasting or
planning to do so.

- As others have noted, European directive already provide for excl rts for

- Revisit basis for copyright protection. In moral rights countries - protection in
this tradition because they are our works. In common law countries, based on more
contract law right - b/c activity is productive. subject to limitation by State.

- Oxford Companion to Eng Lit - Definition of Copyright. Could substitute copyright
for broadcasters.

Copyright owners may rely on works of others. Also a danger that if too rigorously
enforced CR may become a bar to free expression, which 4th para of preamble of Treaty
alludes to . Qn how to ensure balance.

4th preamble para. Explanatory text. Repeats language in WCT and WPPT.

Let's look at what was excluded from the two 1996 treaties, to understand level of
international agreement: - no consensus on updated reproduction right - left up to
national legn, eg DMCA in US. This due to structural deficiency. - no consensus on
protection of Audio visual rights.

Member States considered issue of appropriate exceptions and limitations in these
treaties. This is reflected in Art 10 WCT, and in WPPT. [Ed note: Art. 10 of WCT and
Art. 16 of WCT contains the three step test for exceptions and limitations in treaty
signatories' national law.]

Conclusion was that no new exceptions and limitations were permissible.

[Ed note: However note Agreed Statement concerning Article 10 of WCT: "It is
understood that the provisions of Article 10 permit Contracting Parties to carry
forward and appropriately extend into the digital environment limitations and
exceptions in their national laws which have been considered acceptable under the
Berne Convention. Similarly, these provisions should be understood to permit
Contracting Parties to devise new exceptions and limitations that are appropriate in
the digital network environment." Ed's emphasis.]

Three step test permits national exceptions. Compare that with permissible exceptions
and limitations under Article 5 of the EUCopyright Directive. Judicial construction
of Fair Use in US has adapted similar wide permissive structure.

Level of protection to be given to broadcasters - value of "free" media -key issue is
in sense of free to make political criticism, free from govt appointment or
interference. Free media are all serving public interest in sense of 4th para of
preamble of proposed treaty.

Striking balance between public and broadcasters. Public will only be affected in
indirect way by proposed treaty, if broadcasters less able to engage in investment to
purchase infrastructure to provide broadcasts or fixations of broadcast content.

Flanking provisions: TPMS have been controversial in US and Europe. Some have
suggested that would lead to digital lock-in. Very hard to credit claims that public
domain works only exists in a digital form. Much public domain material is non
digital - in libraries and archives. Some public domain material held on terms that
restrict access. eg archive that holds material of particular writer, is often held
on terms of deposit that restrict access because eg of sensitive nature of material.

There is no right belonging to the public at large to reprint a book no longer in
print, whether in public domain or under copyright. Considerable research may be
required to determine if a given work is in the public domain.

Civil sociey NGOs have no more mandate or legitimacy to speak on behalf of the public
than I do. Any claim that certain NGOs should be given any greater credence is

[Ed note: EFF speaks on behalf of EFF's 9500 paying members]

--- NGO Interventions, request limited to 5 minutes each.

DIMA (Jonathan Potter):

- treaty should be technology-neutral - we have previously been asked if
broadcasting rights are sufficient to encompass webcasting rights b/c most major
broadcasters retransmit on Internet. Not sufficient. Need separate right of
protection for webcast signal. This is not just hypothetical - in the US recently in
the aftermath of Hurricane Katrina, we have seen a Louisiana broadcaster which
couldn't broadcast any longer doing internet broadcasting - webcasting - instead as
vehicle to transmit news. - technology alone is insufficient. Need legal protection
against theft of our transmission - Prefer option 2 [Webcasting included unless opt
out by notifying reservation on webcasting and/or simulcasting]- less administrative
burden on countries; - Option 1 is unique in international law - [implication:
untested, unwise to pioneer]



13, 2005

Mr. Chair, the Honorable Representative from the Government of Norway, and WIPO
Member States, thank you for the invitation and opportunity to present my
organization's views to this important meeting.

The Electronic Frontier Foundation is an international civil society organization,
with over 9500 members worldwide, dedicated to protecting civil liberties,
technological innovation, and the public interest in the digital environment. EFF has
previously submitted detailed comments on its concerns with the technological
protection measures provisions in Articles 16 and 17 of the proposed Treaty to the
Eleventh Session of the SCCR in June 2004, and a letter from 20 technology companies
opposing the proposed webcasting provision at the Twelfth Session of the SCCR. Copies
of those comments and the webcasting letter are available on the papers table and I
would be pleased to provide them electronically to any interested Member States'

Today I wish to make three points on two aspects of the draft Treaty:

(1) The Technological Protection Measure (TPM) Provisions in Articles 16 and 17are
likely to cause significant harm to innovation, competition, freedom of expression
and the existing personal use rights of Member States' citizens.

(a) Broadcaster TPMs are not likely to be effective for the intended purpose, but are
certain to cause collateral harm to consumers. In those countries which have
implemented these obligations under Article 11 of the WIPO Copyright Treaty (WCT) and
Article 18 of the WIPO Performances and Phonograms Treaty (WPPT), these measures have
not been successful at stopping or even slowing the unauthorized reproduction and
distribution of works online - for instance, every major motion picture released on
DVD is currently circulating on peer to peer networks despite the fact that DVDs have
only ever been released with technological measures that are backed by law in Europe,
the United States, Australia and Japan. There is no basis for thinking that
broadcaster TPMs will be any more effective.

At the same time, there is now much evidence that copyright owner TPM laws in the
United States and Europe have curtailed consumers' traditional personal and fair use
rights under national law, chilled freedom of expression and scientific research,
impaired competition, and stifled technological innovation.

(b) These provisions will also be bad for innovation and competition because they
require Member States to create technology mandates over the design of televisions,
radios, and if webcasting is included, personal computers. Contrary to one of this
morning's presentations, there will be little flexibility left to Member States in
how they implement these provisions.

Broadcaster technological measures, such as the failed U.S. Broadcast Flag, rely on
the signal-receiving device acting in a particular way. In order to protect
broadcasters' technological measures, countries must pass laws that ban all devices
that do not look for and respond to the particular type of measure. In March 2005, a
representative of the North American Broadcasters Association announced that the
European Digital Video Broadcasting standards-specifying body hoped to use the
technological protection measure provisions in this treaty to obtain national
technology mandates over digital television technology in all DVB member states. So
this is a very real concern for consumers. As the experience in the United States
demonstrates, these mandates over the design of devices that can receive broadcasts,
cablecasts and webcasts are likely to stifle technological innovation, preclude the
use of free and open source software players, and impair competition.

(c) Rather than adopting a further layer of technological protection measure laws in
broadcasts, over and above those already available to copyright owners under the WCT
and the WPPT merely out of a sense of parity between different classes of
rightsholders, we respectfully request that WIPO Member States examine whether there
is a sound policy basis for creating such rights in the first place.

Before Member States are asked to take on these new obligations, EFF reiterates its
recommendation made in the November 2004 SCCR meeting, that WIPO should conduct a
study on the likely impacts of the new treaty on all stakeholders in the process, and
in particular, the impact of technological protection measures for broadcasters,
cablecasters and webcasters. Accordingly, EFF supports Alternative NN in Article 16
of the Chairman's draft text.

(2) Extension to Webcasters The proposal to create exclusive rights for webcasters
raises significant concerns for citizens' access to knowledge and for innovation on
the Internet. At the same time, no economic justification has been given for the
creation of new monopoly rights, I wish to make three points here.

(a) These provisions are likely to stifle technological innovation because they
require technology companies to negotiate with two sets of rightsholders before they
can create technologies that interoperate with web content.

(b) Creating exclusive rights for webcasters, combined with legal sanctions for
webcaster technological protection measures, is likely to restrict the public's
access to information. While the Internet is already subject to copyright owner
technological protection measures under the WCT and WPPT, the likely impact of a
webcaster TPM regime is far broader because as currently drafted, the proposed treaty
would provide webcasters, with the right to restrict access to transmissions of works
which may not be copyrighted or in the public domain.

(c) Finally, no economic justification has been demonstrated for the creation of new
monopoly rights for webcasters. The proliferation of webcasting companies over the
last five years indicates that there is more than adequate capitalization in the
market and no further need for economic stimulation. The economic rationale for
protecting traditional broadcasting - namely to recoup the high costs of investment
in equipment - simply does not apply to webcasting. To the contrary, creating a new
exclusive rights regime for webcasters actually advantages incumbents and precludes
the establishment of new players. Moreover, given the immaturity of the Internet
media market and the constantly evolving nature of media transmission, it is
premature to shape the nascent market by the creation of new monopoly rights in
technologies such as "real-time streaming" where those technologies may be obsolete
in several years' time.

There is no consensus amongst American web technology companies that exclusive rights
for webcasters is beneficial. The webcasting proposal has been expressly rejected by
20 web technology companies who presented an open letter to the Twelfth Session of
the SCCR. Amongst others, the letter was signed by Mark Cuban, the operator of the
largest digital HDTV network in the world (HDNet), owner of a major league sports
team whose matches are webcast (Dallas Mavericks), and owner of half a billion US
dollars' worth of digital content.

While there is clearly much momentum to move the proposed treaty into an early 2006
Diplomatic Conference, these fundamental issues require further careful consideration
by WIPO Member States.

Thank you for your consideration.




Meeting closed 5:25 pm

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