Sorry for crossposting. This is the last day before the WIPO meeting
in Geneva where we would like to read and distribute the statement
cut and past below.
Manon
The statement proposes a clarification of the definition of a signal and recommends that delegates narrow the scope of the treaty to signal only excluding clearly any content or program. We also recommend that provisions related to the use of fixation (of content or program) be removed as unnecessary in a treaty for the protection of signal. We provide alternative language to the Second Revised Chairman's text that will be discussed next week at the WIPO Standing Committee on Copyright and Related Rights. Please note that the Committee will only meet twice this year before a Diplomatic Conference is scheduled in 2006.
If you believe that the new treaty being negotiated should be strictly limited to signal protection and should not provide new exclusive rights to broadcasters and cablecasters on work they transmit, let us know.
More information at:
http://www.cptech.org/ip/wipo/bt/index.html
November 2, 2005. Jonathan Krim for the Washington Post. Weighing =20
Webcasters' Rights to Content.
http://www.washingtonpost.com/wp-dyn/content/article/2005/11/02/=20
AR2005110203187.html
http://lists.essential.org/mailman/private/broadcast-discuss/2005-
November/000242.html
October 13, 2005. Letter from 17 NGOs, 7 law professors and 31 music =20 and technology experts, asking the leadership of the the U.S. House =20 and Senate for a period of public comment on the treaty proposals. http://www.cptech.org/ip/wipo/bt/2cong4frnotice.html
September 26, 2005. Column by James Boyle in the Financial Times. =20
More Rights Are Wrong for Webcasters.
http://www.cptech.org/ip/wipo/bt/index.html
Here is the statement as a cut and paste:
The undersigned organisations represent a broad cross-section of constituencies with a direct interest in the discussions currently underway in the Standing Committee on Copyright and Related Rights regarding a possible international instrument protecting broadcasts and the rights of broadcasting organisations.
All of the undersigned have serious reservations about the possible new Instrument in many respects. Whilst those of the undersigned who have participated in the deliberations of the SCCR continue to hold the views previously expressed in our interventions and written submissions, we take this opportunity to submit for the consideration of delegations certain proposals related to the new Article 3(0) from the Second Revised Chairman’s Text:
1 We welcome the further clarification that we believe Article 3(0)
intends, that protection of the programme-carrying signal, rather
than the programme itself, is the object of protection of the
proposed treaty;
2 We believe that further language is required to bring complete
clarity to the signal as the object of protection. In this context,
we have provided a number of specific proposals which we believe
would be helpful, which can be found on the immediately-following pages
3 We submit that an essential element of clarifying the object of
protection is to define “Signal” clearly.
4 Further, since the internationally-accepted definition of a
fixation makes clear that the fixation of a broadcast is not a
signal, but rather the programme content carried by a signal, we
submit that any provisions related to the use of fixations in the
proposed treaty should be removed.
5 Since we recognise that bona-fide broadcasters should be protected
from signal piracy, in lieu of the fixation-based Articles we propose
amendments to Article 21, which provide much more comprehensive
protections of signals than the current fixation-based Articles would
provide.
We are at the disposal of the members of the SCCR to discuss these
views, and the language we provide in the following pages.
Introductory Note:
For the sake of brevity, we reproduce only those portions of the Second Revised Chairman’s Text which are relevant to bringing clarity to the intended object of protection of the treaty being the signal used to transmit programmes, and not the programmes themselves. Where we propose amendments to the Chairman’s text, we do so through strikeout (for deletion of current language) and bold face to indicate recommendations for modified or new language.
We wish to emphasise that the changes we recommend below would not, and are not intended to be, a derogation from the Rome Convention and TRIPS Agreement obligations which Contracting Parties to those agreements have to one another. On the contrary – the protections we suggest are substantial additive protections that reflect the development of broadcasting technologies in the past several decades. Indeed, we submit that the clarification heralded by Article 3(0) is both a recognition of the diversity of media over which broadcasts, cablecasts, and webcasts can be delivered and a recognition that the most effective mechanism for protection of those activities is through the protection of the signal.
ARTICLE 2 For the reasons previously stated, we submit that clarity and legal certainty both require that the object of protection – the signal – should be defined. For this purpose we provide the following, adapted from Article 1(i), The Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (hereinafter referred to simply as the Satellites Convention).
(f) “Signal” means an electronically-generated carrier capable of,
and emitted for the purpose of, transmitting programmes by the
beneficiaries of protection of this Treaty
In addition, to reflect the signals-centric focus which is evident to
us in the new Article 3(0) and which we recommend be more completely
developed, we suggest that the definition of ‘Fixation’ in Article 2
(f) is not required and should therefore be deleted.
ARTICLE 3(0) Whilst we believe that the language in the new Article 3(0) is intended to clarify that the object of protection is the signal and not the content, we submit that the last line may introduce confusion about the status of public domain programme content.
We have accordingly deleted the last phrase, substituted a replacement phrase which we submit makes the object of protection clearer, and capitalised the word ‘Signals’ in the first part of the phrase in order to make clear that the definition for a Signal is as provided through the newly introduced definition provided for Article 2(f).
(0) The protection granted under this Treaty extends only to Signals
used for the transmissions by the beneficiaries of the protection of
this Treaty and not to the programme content carried by the Signals.
ARTICLES 8, 9, 10, 11, 12, and 13
These Articles in the Chairman’s Text all provide broadcasters with rights which relate not to misuse of their signals, but which instead provide them with exclusive rights to either the fixation of their broadcasts, or uses made of those fixations.
Since Article 1 – and in particular Article 1(2) – makes clear that the protection envisaged by the draft instrument cannot impact anything about the programme being carried by a broadcast or cablecast’s signal, and since a fixation of a broadcast or cablecast, according to the definition of fixation provided in the Chairman’s Text, is clearly a physical copy not of the signal, but of the programme being transmitted, and further, since it is the clear intention that this proposed instrument relate only to the signal, we submit that inclusion of rights related to fixations is incompatible with both the object and purpose of the draft instrument.
As a consequence of this, we recommend that all the above-listed Articles be deleted.
ARTICLE 15 We do not believe that any term of protection is consistent with the object and purpose of this proposed treaty - the protection and use of the signal used to carry programme materials. Accordingly, we recommend the deletion of this Article.
ARTICLE 21 In place of the fixation-related Articles above referenced, we recommend the following additional provision be added to Article 21. We believe that this addition is actually both far more comprehensive protection of the beneficiaries, as well as being congruent with the object and purpose of the draft instrument as stated.
It is based upon Article 2(1) of the Satellites Convention.
We draw the attention of delegations to our request to the broadcasting community that they let all stakeholders know of any way in which the protections we’ve outlined below are insufficient to protect their interests, originally made at SCCR 12. None of the above-referenced NGOs have heard from the broadcasting community of any failure to protect their interests by the following text.
(4) Contracting Parties shall take adequate measures to prevent the
transmission or retransmission on or from their territory of any
Signal that is an object of protection of this Treaty by anyone for
whom the communication is not intended, or which is not authorized or
permitted by law.
Consumer Project on Technology
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Received on Sat Nov 19 2005 - 01:15:01 GMT
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