TWN Info Service on WTO and Trade Issues (Sept09/24)
30 September 2009
Third World Network

Attempts to revive talks on broadcasting, audiovisual treaties
Published in SUNS #6782 dated 30 September 2009

Geneva, 29 Sep (Sangeeta Shashikant) -- Attempts have been made at the current annual meetings of the Member States of the World Intellectual Property Organization (WIPO) to resurrect talks on a treaty for the protection of broadcasting organizations as well as a treaty on audiovisual performances.

This emerged during discussions on the work programme of WIPO's Copyright Committee (SCCR). The annual Assemblies are being held from 22 September to 1 October.

While discussions on the broadcasting treaty are ongoing in the SCCR, actual negotiations on the treaty have come to a halt since 2007 as a result of wide divergences among WIPO Members over the scope, objectives and object of protection of the treaty. Negotiations on the audiovisual performances treaty have stalled since a failed Diplomatic Conference in 2000.

On the issue of limitations and exceptions to copyright (L&E), while there was strong support from developing countries to expedite discussions and move toward international norm-setting on the matter, including on the treaty proposal by Brazil, Ecuador and Paraguay relating to "Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU)" (SCCR/18/5), developed countries remained largely non-committal.

The General Assembly (GA) heard the views of Members on each of these issues, and noted the Secretariat's report on these issues contained in document WO/GA/38/5. The Secretariat's report is a factual account of the status of discussions on the issues as well as activities that it has organized on the matter. It also states that the issue of L&E together with the issues of protection of broadcasting organizations and of audiovisual performances will be maintained on the Agenda of the nineteenth SCCR session scheduled to meet in December.

With regards to discussions on the broadcasting treaty, Sweden, on behalf of the European Communities (EC), said that between the GA sessions of 2006 and 2007, there were intensive attempts and a good faith effort to establish a new basis for the conclusion of a treaty to update the protection of broadcasting organizations. The reason for the failure of these efforts was not the lack of willingness in the SCCR but rather the fact that the conditions on when to convene a Diplomatic Conference as laid down by the General Assembly were very "strict".

Sweden proposed that a decision be taken that the GA asks the SCCR "to consider possible ways of having the negotiations move forward, including through a possible revision of the current conditions for convening a future Diplomatic Conference".

[The 2006 General Assembly conditioned the convening of a Diplomatic Conference for a treaty on the protection of broadcasting organizations on Members reaching agreement on the objectives, specific scope and object of protection of a signal-based treaty. This mandate was reiterated in the 2007 GA decision.]

The EC's proposal was strongly opposed by the US. The US said that it supported efforts to update protection in the digital age for broadcasting, cable-casting and web-casting organizations, provided such protection does not interfere with the rights of the underlying content owners and the public interest.

The US added that it disagreed with the EC. As a threshold matter, the 2006 GA mandate was a direct response of the failure of the SCCR to reach agreement on even the most fundamental elements of a possible treaty text, that is, the SCCR failed to reach agreement on the kinds of broadcasts to be protected, as well as the scope of rights and exceptions and limitations. Thus, the terms of the 2006 GA mandate are necessary, prudent and appropriate, the US stressed.

The US further said that the terms of the 2006 GA mandate are consistent with well-established WIPO policy and practice for convening a successful Diplomatic Conference, which strongly favours reaching agreement on the principal provisions of a treaty text before convening a Diplomatic Conference. The EU's proposal could set an unfortunate precedent for other WIPO Committees, it added.

While some developing countries supported discussions on the broadcasting treaty, others such as Iran and India supported discussion on the protection of broadcasting organizations based on the WIPO GA decision of 2006, adding that any such discussion should be confined to a signal-based approach and to dealing with signal piracy. Angola also mentioned the need for assessing the impact of the proposed broadcasting treaty on the Least Developed Countries.

At the last meeting of the SCCR (eighteenth session, held in May 2009), the Committee: (I) agreed that the Secretariat would commission a study on the socioeconomic dimension of the unauthorized use of signals, including the impact of the lack of access on the one hand and the need for an effective protection for broadcasters for discussion on the other hand, for the twentieth session; (ii) reaffirmed its willingness to continue its work on the protection of broadcasting organizations on a signal-based approach, according to the mandate of the 2007 General Assembly; and (iii) invited the Secretariat to organize regional and national seminars upon the request of Member States or regional groups on the objectives, specific scope and object of protection of a possible draft treaty and took note of the proposal to organize regional consultations.

On the issue of an audiovisual performances treaty, there appeared to be some enthusiasm for resuming negotiations from where Members left off following the failed Diplomatic Conference in 2000. While the Diplomatic Conference reached provisional agreement on 19 Articles, no agreement was found on the issue of the transfer of rights from the audiovisual performer to the producer (Article 12). The Diplomatic Conference recommended to the 2001 WIPO Assemblies that they "reconvene the Diplomatic Conference for the purpose of reaching agreement on outstanding issues".

However, during the 2001 WIPO Assemblies, Members considered that it was necessary to continue consultations to resolve the deadlock over the above-mentioned provision. Since then, the issue has remained on the agenda of the SCCR and the General Assemblies but the reconvening of the Diplomatic Conference has not yet taken place (see AP/IM/09/INF/3).

On 8 September, WIPO facilitated informal open-ended consultations on the protection of audiovisual performances. On these consultations, Nigeria reported to the GA that some governments mentioned that they may recommend (presumably at the SCCR meeting in December) an extraordinary session of the GA to reconvene a Diplomatic Conference on the issue.

Sweden, on behalf of the EC, referring to the background document on main questions and positions prepared by the Secretariat (AP/IM/09/INF/3), said that the document in combination with the informal open-ended consultations among all Members that have been organized by the Secretariat "could provide a possible solution to the current deadlock".

The US said that it was aware of the differences that remained among Members for achieving such protection at the international level, particularly, differing approaches to the transfer of exclusive rights from performers to producers. It supported maintaining it on the WIPO Agenda.

Several developing countries also expressed general support for the audiovisual performances treaty. South Africa stressed the need for affected stakeholders to be part of the consultation process.

On the issue of limitations and exceptions, there was strong support from developing countries to expedite discussions on the matter, including on the treaty proposal by Brazil, Ecuador and Paraguay relating to "Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU)" (SCCR/18/5) submitted at the last session of the SCCR.

The Secretariat's report on this issue states that it is preparing documents identifying the most important features of limitations and exceptions in the various domains based on the four studies commissioned by the Secretariat, as well as addressing the international dimension and possibly categorizing the main legislative solutions for the nineteenth SCCR session to be held in December. The report also mentions that a revised draft questionnaire on L&E will be presented at the upcoming session and will include questions regarding implications of digital technology in the field of copyright, including as they relate to social, cultural and religious limitations and exceptions.

The report adds that the "SCCR has acknowledged the special needs of visually impaired persons and has stressed the importance of dealing, without delay and with appropriate deliberation, with those needs of the blind, visually impaired, and other reading disabled persons, including discussions at the national and international level on possible ways and means of facilitating and enhancing access to protected works".

The report also refers to a stakeholders' platform established following the seventeenth SCCR session and that involves major stakeholders, including representatives of copyright holders and reading impaired persons, to explore the specific needs, concerns, and possible approaches to facilitating access to works in formats suitable for people with reading impairment.

The report adds that the SCCR also requested the Secretariat to ensure the effective participation, and to make available funding to support the participation of stakeholders from developing and least developed countries. The Secretariat shall make its best efforts to organize a meeting of the platform in a developing country. The report adds that the treaty proposal together with other possible proposals and contributions by the Members of the Committee will be discussed at the upcoming session of the SCCR. (For proceedings and decisions of the eighteenth session of the SCCR, see SUNS #6711 dated 3 June 2009).

Ecuador, on behalf of GRULAC (the group of Latin American and Caribbean countries), said that the treaty proposal will facilitate and improve access to protected works for the benefit of blind, visually impaired and others with reading difficulty. It also welcomed support for the proposed treaty, adding that it was ready to begin discussion on this proposal at the next meeting of the Committee.

Ecuador also noted that the draft treaty proposed does not undermine in any way the broad agenda of the SCCR on L&E to copyright, which includes other key sectors such as education, libraries, archives and innovative services, as stated in the proposal made by Chile, Brazil, Nicaragua and Uruguay concerning the work on L&E (SCCR/16/2). It further noted that the treaty proposal is consistent with the objectives of the UN Convention on the Rights of Persons with Disabilities.

Ecuador urged WIPO to act in line with the efforts that are carried out at the United Nations to address issues that benefit the community, particularly to allow the socially vulnerable access to knowledge. It also stated that the dialogue on L&E contributes to the goals of the Development Agenda.

Senegal, on behalf of the African Group, said that establishing flexibility for access to knowledge has to be a "non-discriminatory" and "open process", adding that the treatment of L&E needs to be placed in a broad perspective.

Egypt said that it maintained its support to the position of the African Group on the need to move on a comprehensive basis on exceptions and limitations. It also recalled concerns expressed with regard to the lack of participation of developing countries on the Stakeholder's Platform and thus welcomed the proposal to hold the stakeholders' platform meeting in Egypt.

Kenya expressed support for a "holistic and systematic" approach to L&E. Brazil expressed support for Egypt's proposal to have broad discussions on L&E. It also expressed hope for discussion on L&E for the visually impaired at the next meeting. Colombia said that an international instrument on L&E was not relevant and instead stressed on general norms.

Sweden, on behalf of the EC, merely expressed support for the ongoing discussions on L&E. It said that "Facilitating and enhancing access to copyright protected material for visually impaired persons is both important and urgent". It expressed support for the stakeholders' platform, stating that the platform could provide a "good basis for further discussions aiming at finding effective, practical and timely solutions in this area".

Japan said that it preferred that specific provisions on L&E be left to individual member states.

The US said that it was committed to furthering international efforts to enhance the accessibility of copyrighted materials by the blind and visually impaired, but stressed on national consultations as a "critical first step in any further work on this issue" within the SCCR. It said that it looked forward to discussing a wide range of solutions and proposals to enhance the accessibility of copyrighted materials by the blind and visually impaired at the next meeting of the SCCR, including the World Blind Union treaty proposal put forward by Brazil, Ecuador and Paraguay.

On the issue of general L&E, the US said that the current Berne Convention framework, which allows countries to balance the competing claims of authors and the broad public at the national level, is working well and thus it was not convinced of the need to undertake norm-setting activities at the international level related to exceptions and limitations, given the success of the Berne framework.

India said that while it supported the stakeholders' platform, there was a need to move forward with international binding obligations on L&E. +