TWN Info Service on Intellectual Property Issues (June09/03)
1 June 2009
Third World Network

Below is a news report on discussions that took place on Thursday last week during the WIPO Copyright Committee meeting.

It was first published in SUNS and is reproduced here with permission.

Regards
Sangeeta Shashikant
Third World Network
email: sangeeta@thirdworldnetwork.net

Differences remain over protection of broadcasting organizations
Published in SUNS #6710 dated 2 June 2009

Geneva, 29 May (Sangeeta Shashikant and Asmeret Ashgedom) -- The World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) resumed its discussions on 28 May, with continued differences over the issue of the protection of broadcasting organizations.

The issue of the protection of broadcasting organizations has been on the agenda of the SCCR for more than ten years.

Despite a call for the revival of talks on a treaty by selected industry representatives on Monday during an information session, wide divergences among countries suggest that it is likely that the issue will continue to be on the agenda of the SCCR, although text-based negotiations are unlikely to begin in the near future.

The SCCR also discussed the protection of audio-visual performances, albeit making little headway due to continued differences. Treaty talks on the protection of audio-visual performances collapsed in 2000.

Towards the end of the day, the Committee begun discussions on the first draft of the conclusions prepared by the Chair of the SCCR, Jukka Liedes of Finland. As the draft was discussed, positions and points of divergences became clearer on the issue of exceptions and limitations (E&L) to copyright.

At the core of contention is future work on the issue of E&L, in particular, on the proposal by Brazil, Ecuador and Paraguay relating to "Limitations and Exceptions: Treaty proposed by the World Blind Union (WBU)", which was formally submitted and considered this week. (See SUNS #6709 dated 29 May 2009.)

The developed countries considered as "premature" having discussions on the proposed treaty at the next SCCR session, while the developing countries were keen to embark on a discussion of the proposed treaty, as well as a broader agenda on E&L.

Most of the morning of the SCCR meeting on 28 May was spent discussing the protection of broadcasting organizations and audio-visual performances, while the afternoon was spent mostly on informal consultations and formal discussions on the conclusions prepared by the Chair.

The talks over a proposed treaty for the protection of broadcasting organizations were geared up towards a diplomatic conference but collapsed at a special copyright committee session in 2007, as members failed to reach agreement on the "objectives, specific scope and object of protection" of the treaty, as well as the text for negotiations at the diplomatic conference.

The main point of contention was how the mandated "signal-based approach" should be reflected in the text, that is, whether it should provide IP-type of protection to broadcasters and whether the protection should extend to "non-traditional platforms" such as the Internet.

Over the last decade, some members, in particular, the developed countries (such as the EU and Japan) favoured the granting of "exclusive rights" of authorizing the "retransmission of their broadcasts and the deferred transmission broadcasts" over traditional and non-traditional platforms (such as the Internet) to the public. However, many other countries opposed this approach.

Differences remained at the SCCR over this matter.

Germany, on behalf of Group B (comprising developed countries), claimed that one of the major obstacles for broadcasters was piracy. It noted that digitization had increased the global threat of signal piracy and thus, this was more than a national problem.

Korea supported extending the scope of protection of the broadcasting treaty to the digital environment.

South Africa noted that stronger government enforcement to monitor and hold persons accountable for copyright infringements has not deterred people from participating in acts of piracy. The socioeconomic dimension to piracy needs to be studied, it added.

Instead of just strengthening laws, there needs to be more attention placed on public access, especially on content with high public interest, South Africa said.

Pakistan said the signal-based approach should be the basis for any future norm-setting for traditional broadcasting and cable casting. It added that the time was not right to roll into the area of the Internet. It also called for further studies for improving the understanding on the issue.

India also stressed on a signal-based approach in setting norms for traditional broadcasting and cable casting. It also requested the Secretariat to provide information to Member States on the current status of broadcasting organizations in developing countries and least developed countries (LDCs), information to comprehend the signal-based approach, as well as information on the objectives and scope of broadcasting organizations.

Brazil noted the existence of a wide divergence of views. It said that it did not oppose the item being on the agenda but recognized that a vast amount of work was required before reaching a conclusion on the issue. A diplomatic conference cannot occur until agreement on the objectives, specific scope and object of protection has been achieved, it added.

Although Chile supported retaining the agenda item, it also recognized that the position of the various members remained distant. It suggested that a way of deepening the debate could be through new studies.

The issue of the protection of broadcasting organizations will remain on the agenda of the SCCR, with the Secretariat likely to be tasked with organizing regional and national seminars, followed by regional consultations on the objectives, specific scope and object of protection.

The issue of the protection of audio-visual performances also made little headway at the SCCR meeting.

Senegal, on behalf of the African Group, said that while it would like to progress on the issue, protection for audio-visual performers should be balanced with the public's right to access to information.

It asked for the discussion on the protection of audio-visual performances to be aligned with the principles of the Development Agenda, adding that the disparities and different levels of development among countries should be borne in mind. It also requested the Secretariat to organize a seminar in Africa that would provide a forum for stakeholders to debate the potential contents of a treaty.

Indonesia also requested for regional consultations, but stressed that it was essential to strike a balance between the protection of audio-visual performances and other stakeholders.

The Czech Republic, on behalf of the European Community, also requested that WIPO hold informal consultations and meetings with Member States with the intention of identifying the current positions of all Member States with regards to the treaty.
Colombia and Mexico urged that discussions be centered on the aspects of the treaty that could not be agreed upon in the Diplomatic Conference held in 2000.

The issue of the protection of audio-visual performances is likely to continue to be on the agenda for the next SCCR meeting. The Secretariat is also likely to be asked to prepare a background document on the main questions and positions of members and to organize informal consultations on possible solutions to the current deadlock.

Towards the end of the day, the Committee begun discussions on the first draft of the conclusions prepared by the Chair of the SCCR, Jukka Liedes of Finland, which covered the issue of E&L, protection of audio-visual performances and protection of broadcasting organizations.

Interventions by the different regional groupings revealed divergences on the issue of E&L. At the core of contention was future work on E&L and the proposed treaty. Particularly contentious was the first two paragraphs of the Chair's text.

The first paragraph reconfirms the commitment of the Committee to "expedite its work on the access of the blind, visually impaired and other reading disabled persons to protected works".

The second paragraph of the Chair's text states: "The Committee expressed its appreciation for the Proposal by Brazil, Ecuador and Paraguay Relating to Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU). The proposal will be discussed at the nineteenth session of the SCCR after Member states have had time to analyze the proposal".

The developed countries considered as "premature" having discussions on the proposed treaty at the next SCCR session, while developing countries were keen to embark on a discussion of the proposed treaty, as well as a broader agenda on E&Ls.

Germany, on behalf of Group B, sought to dilute the Chair's text. It proposed as a substitute: "Some Member states expressed [the] view that it should be discussed at [the] 19th session after Member states have had time to analyze the proposal. Other Member states stated the view that deliberations regarding this instrument or any instruments would be premature because many Member states are still immersed in fact finding and evaluation."

(According to James Love of US-based NGO Knowledge Ecology International in a blog post, "opposition from the United States and other high-income countries is due to intense lobbying from a large group of publishers that oppose a "paradigm shift", where treaties would protect consumer interests, rather than expand rights for copyright owners".)

Sri Lanka, on behalf of the Asian Group, proposed language in the first paragraph that would reaffirm the Committee's commitment "to the broad agenda" on E&L, but "especially", "expedite its work on access of the blind, visually impaired and other reading disabled persons to protected works". It favoured discussing the proposed text "along with any other alternative proposal submitted by Member states" at the next SCCR meeting.

Senegal, on behalf of the African Group, proposed stronger language for the first paragraph in that the Committee reconfirm its commitment "to expedite its work on the exception and limitation, taking note of the interest expressed by the Member states for the progression of work in an overall and inclusive approach taking account of the concerns linked to development."

On the second paragraph, it proposed that the conclusion say that the Committee expressed "interest" (substituting "appreciation") in the proposed treaty and "agreed to work on exceptions and limitations in an overall and inclusive framework at a norm setting level", taking into account the need to expedite the work on access for the blind, visually impaired and other reading-disabled persons to protected works.

Costa Rica, on behalf of GRULAC (group of Latin American and Caribbean countries), proposed for the second paragraph: "Many delegations expressed support for the Proposal by Brazil, Ecuador and Paraguay Relating to Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU).  Other delegations asked for more time to analyze the proposals. Some expressed the desire to have a broader approach to E&Ls". +