Day two of WIPO SCCR meeting
November 4, 2003
James Love <james.love[_at_]cptech.org>
Geneva: Tuesday was the final day of deliberations on the broadcast/cablecast/webcasting treaty. On Wed the SCCR will discuss other agenda items.
The day began with comments from a number of member country delegations.
Australia said that the inclusion of webcasting might block progress on the treaty. (Australia also has a private copying right for broadcasts that would be possibly be in trouble under the treaty format for limiting exceptions).
New Zealand indicated that the current proposal might not be the best instrument to address internet webcasting, but that this was an important issue that needs the attention of WIPO, as a matter of priority.
Brazil made a moving intervention, asking the delegates to reflect on what was the rationale for the treaty, and "why are we here in the first place." Brazil said the point was not to protect investments or to create profit opportunities per se, but to ensure that broadcasting served the public, emphasizing the social dimension of intellectual property, and the role of broadcasting organizations in cultural and educational areas. Brazil said it was far from evident what the social aspect of this treaty would be. Brazil noted that others had observed that not every country was entering the 21st century on the same footing in terms of development, and that access to information was important, and that the treaty and other developments in digital technologies should not lead to a further widening of the existing disparities in access to information and knowledge and technological development. Brazil opposed the inclusion of webcasting in the treaty, and Brazil also said it was concerned over technological protection measures, which had the potential to prevent the exercise or use of exceptions and limiations that have served an important role in copyright policy, noting the UK Commission on Intellectual Property Rights noted that in many cases, the technological measures can impede access to public domain materials. Brazil said the treaty should strike a balance between creators and the public at large.
The Chair responded to the Brazil intervention by noting his own concern over access to information and the important role of education.
Bangladesh asked that webcasting be placed in a separate treaty.
Mexico suggesting webcasting should be part of a future work program.
Kenya again made a long and highly technical presentation, pushing for an expansive coverage and scope of the treaty, to cover any wireless or wired transmissions of information. Kenya said that advances in technical and digital communications were going to completely change how content is presented and delivered, and Kenya pressed for a forward looking treaty that addressed the new technologies now. Kenya also proposed some of the most sweeping rights and protections for investors in broacasting/cablecasting/webcasting, apparently reading directly for a prepared statement.
Ghana called for the treaty to be scaled back to only include traditional broadcasting.
Next the NGOs were allowed to speak, and all but the Civil Society Coalition (CSC) represented right owners of one type or another.
I was called upon first, and focused on three issues -- the term of protection, the scope of coverage, and the impact of technological measures. I said that several CSC members were in opposition to the extension of the TRIPS and Rome terms from 20 to 50 years, noting this was far longer than terms normally given to protect investments. I cited a number of other regimes ranging from 6 months to 15 years for various investment based sui generis IPR regimes, such as those that protect data or investment in pharmaceutical or agriculture research, or the European Database protection regime. We did not want WIPO to create a precedent that regimes that protected only investment would receive the same long terms that had been earlier justified on moral grounds to reward creative artists and their heirs. The term of protection should not exceed the term of the business plan. Then I revisited earlier comments by the United States and Kenya on the scope of protection, noting that the US had recognized the need to narrow the scope of protection so that ordinary web pages were not covered, but recalling the Kenya intervention, reminded the delegates that the future of digital television would increasingly be multimedia, and that even current analogue television was sometimes presented in web page formats, such as the Bloomberg and CNN headline services, which combine video, text and data in the presentation. If there is a future convergence between Broadcast TV and the web, it will be very difficult to write a legal definition which does not create very broad and in our opinion, very inappropriate legal regimes for transmitted information. We were very concerned over the potential for the treaty to create a new layer of rights that would restriction dissemination of public domain materials, or create barriers for access to materials where the copyright owner would permit use. Finally, I said we were concerned, like Brazil and others, that the technological measures would restrict access to both public domain materials, but also limit the role of important exceptions and limitations in copyrights.
Ben Ivins from NAB the made a very detailed a clear intervention about how NAB considered the protection of the "signal" to mean that everything transmitted via a signal should be protected. Ivins objected to any notion that educational materials or public domain materials would not be subject to strong exclusive rights, and he provided a detailed discussion of how broadcast organizations would use to the treaty to restrict access to public domain materials, in order to protect their investments in locating and airing the public domain works. If there had been any doubt over the issue of how broadcasters would use the treaty to restrict access to public domain materials, it was eliminated by the NAB intervention.
Japan NBA noted that Webcasting has a social dimension.
I was not able to keep up with the identity of each industry NGO. The International Music Mangers Forum IMMF noted the protection of a signal was one thing, but providing rights to a fixation was something else. The IMMF presented its own proposals for a WIPO Protocol on the Protection of Programme Carrying Communications over Public Computer Networks.
There was a comment that the neighbouring rights approach was not a sound one, and that a more appropriate approach might be that found in the regulatory agreements concerning satellite signals.
The CISAC said there was no workable definition of who is a broadcaster.
Several NGOs noted there was almost no agreement on the scope of the treaty, or even the goals and objectives, and that the definitions themselves were far from agreed upon.
When the NGO comments were finished, most of which were highly critical of the proposed treaty, the Chair then sought approval for a conclusion that would authorize him to create a text of a possible treaty, to be finished by April 1, 2004, and discussed in June 2004, and that a decision would be made about whether or not to recommend a diplomatic conference.
There was discussion of this, but at one point India made an intervention that shook things up, saying there was no consensus that the treaty was needed, that India opposed the 50 year term, and that India opposed efforts to schedule a diplomatic conference. The room became very quiet. Egypt and then Brazil intervened, and Egypt proposed changes in the text of the conclusion that would allow the draft treaty to be prepared, but significantly reduced the presumption that a diplomatic conference would be scheduled. With this, the meeting was adjourned until tomorrow.
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James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040
--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040
--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040
Received on Wed Nov 05 2003 - 21:15:24 GMT
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