|
||
|
TWN
Info Service on Intellectual Property Issues (Jul14/03) Dear friends and colleagues, We are pleased to share with you the following: 1. A report of the recent resumed negotiations on a treaty to protect broadcasting organizations at the 28th session of the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR): The key proponents of the treaty, apart from broadcasting entities, include the European Union and the Central Europe and Baltic States group that have been arguing for a more expansive scope for the proposed treaty as well as more rights for those entities. On the other hand, developing countries and civil society organizations are concerned that this will have serious negative impacts on access to knowledge and the public domain. Expansion to cover internet transmissions is one of the contentious areas. 2. A statement by Third World Network on the protection of broadcasting organizations at the 28th session of the SCCR that outlines several concerns. With
best wishes, ITEM 1 WIPO negotiations resumed on treaty on broadcasting organizations Geneva, 9 July (Alexandra Bhattacharya) – A potential treaty to protect broadcasting organizations on the table at the World Intellectual Property Organization (WIPO) since 1998 continues to be controversial. The 28th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) commenced its work on negotiations for a proposed treaty for the protection for broadcasting organizations. The meeting took place in Geneva from 30 June to 4 July 2014 with Mr. Martin Moscoso (Peru) re-elected as Chair of the Committee. Divisions among Member States continued primarily over the expansion of the treaty scope and the creation of new rights for broadcasting organizations, beyond what was envisaged in the 2007 WIPO General Assembly decision that mandated discussion on a new treaty – developing countries and civil society organizations are concerned that the result will be a new set of rights for broadcasting organizations that impact negatively on access to knowledge and the public domain. Content creators are also concerned over their rights. The work on the proposed treaty during the 28th session was primarily conducted in an informal negotiation mode with an audio relay into the plenary room. Informal consultations focused on two charts circulated in previous sessions on the scope of protection of the proposed treaty and the rights to be given to broadcasting organizations. This objective of the work was to “ascertain principles” with regard to the protection of broadcasting organizations. The informal consultations did not engage with treaty language as found in the current working document (SCCR/28/REF/SCCR/27/2 REV.). Rather, the general objective of the discussion was to clarify and narrow down on the key issues in the informal papers as “tools” to further the discussion. This could be seen as evidence of the fact that much work still needs to be done to ascertain basic elements of the proposed treaty. The agenda items for discussion during the 28th session included: (i) Protection for broadcasting organizations; (ii) limitations and executions for libraries and archives; and (iii) for educational and research institutions and for persons with other disabilities. Another agenda item for discussion, on an ad hoc basis, was the Contribution of the SCCR to the implementation of the respective Development Agenda recommendations. This had been proposed by Brazil, on behalf of the Development Agenda Group (DAG) during the last session of the SCCR. (See: http://www.twnside.org.sg/title2/intellectual_property/info.service/2014/ip140504.htm) The previous session of the SCCR had been unable to reach agreement on the conclusions of these agenda items. Therefore, the Vice-Chair, Alexandra Grazioli (Switzerland), in consultation with regional groups and three representatives from each group prior to the session, developed the work program for the 28th session. The Chair informed the Committee that during the informal consultations it had been decided that half of the time during the session would be devoted to the discussion of broadcasting organizations, with the other half for the discussion on exceptions and limitations for libraries and archives and for educational and research institutions and for persons with other disabilities. This has been the usual work program for the last few sessions. (See http://twnside.org.sg/title2/intellectual_property/info.service/2014/ip140702.htm for the report titled: “Divide over new treaty on exceptions for libraries/archives”.) Informal consultations continue focus on scope and rights of the proposed broadcasting treaty The outcome of the informal consultations held over two days were two discussion papers focused on the potential scope and the rights envisaged for broadcasting organizations. The first informal discussion paper dealt with the potential platforms to be considered within the scope of the treaty. This paper included the following elements: (i) Pre-broadcast signal; (ii) traditional broadcasting [and cablecasting] (wireless or by wire); (iii) simultaneous near simultaneous and unchanged transmission of broadcast signal (simulcasting); (iv) deferred linear transmission of broadcasting signal; and (v) on-demand transmission of broadcast signal (catch up). Elements (iii) to (v) relate to transmissions over the internet [if included, only for broadcasting/cablecasting organizations in the traditional sense]. For all these potential platforms there is the possibility of: (mandatory) inclusion, opt in or exclude from treaty application a priori. The key changes from the previous discussion paper includes the following:
The second informal discussion paper dealt with the rights envisaged for broadcasting organizations. According to the Chair, the potential rights to be included have now been simplified. These included:
Additionally, horizontal issues have been included for further discussion:
Concerns over proposal for technical assistance from broadcasting organizations On the first day of the session, in the plenary discussion, the Chair proposed utilizing technical assistance from three representatives from broadcasting organizations who would be available if needed by the negotiating group. He stated that these resource persons would be Alexandre Jobim (International Association of Broadcasting), Premila Manvi (Asia-Pacific Broadcasting Union) and Erica Redler (North American Broadcasters Association). Venezuela expressed its surprise at this Chair’s proposal to seek technical assistance from the representatives of broadcasting organizations. It said that it was surprised at the way this proposal had been accepted and that the discussion had not been “transparent”. “Who are these people who will come to solve a problem which we have not been able to solve in the last 10 or 15 years?” it questioned. Venezuela added that the best way forward would have been for Member States to be given the opportunity to put forward names. Similarly, Uruguay, on behalf of the Group of Latin American and the Caribbean Countries (GRULAC), in a detailed intervention stated that there was a need to work in a “different and transparent manner”. It stated that according to the informal consultations, which were held prior to the session, there had not been any agreement in calling these experts for technical assistance purposes. Kenya on behalf the African Group also asked for further clarification regarding the composition of the experts. The Chair stated that based on comments from Member States, the participation of the experts could be seen as being “negative” and therefore this proposal would not be taken forward. However, during the informal consultation process, the Chair sought information from "stakeholders" on technical issues. Inputs were received from the broadcasters stakeholders regarding definitions of transmission versus retransmission, and the pre-broadcast signal. A diagram by the National Association of Broadcasters of Japan was also circulated explaining the “piracy of pre-broadcast programme carrying signals”. Potential treaty to “update” the rights of broadcasters The potential treaty under discussion in the SCCR aims to offer protection for broadcasting organizations and has been on the agenda of the WIPO copyright committee since 1998. According to the WIPO secretariat, "International rules to protect television broadcasts from piracy have not been updated since the 1961 Rome treaty (on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations), drafted at a time when cable was in its infancy and the Internet not even invented." In 2006, the WIPO General Assembly had mandated that a Diplomatic Conference be held the following year (2007), if agreement was achieved on the “objectives, specific scope and the object of protection” of the proposed treaty on “signal based approach”. Two special sessions of the SCCR were held in January and June 2007 to further the process. However, negotiations could not be finalized and the 2007 WIPO General Assembly (Page 57 od document WO/GA/34/16), called for the continuation of the discussion “acknowledging that progress was made in the process towards better understanding of the positions of the various stakeholders”. The Decision also “expressed the wish that all parties continue to strive to achieve an agreement on the objectives, specific scope and the object of protection” and consider the “convening of a Diplomatic Conference only after agreement on the objectives, specific scope and the object of protection has been achieved.” The key proponents of the treaty, apart from broadcasting entities, include the European Union and the Central Europe and Baltic States group that have been arguing for a more expansive scope for the proposed treaty that would include transmissions over the internet. [Although this element has been removed from the informal discussion paper, it is not clear if it will find its way back into the working document.] The last few sessions of the SCCR have witnessed underlying differences of views on the scope of application of the potential treaty (as found in Article 6) particularly with respect to whether it should be confined to traditional broadcasting (including cablecasting) or whether it should include transmission over the Internet. Another important issue relates to the scope of rights or protection to be afforded to broadcasting organizations (as found in Article 9) and particularly whether post-fixation rights should be included and whether the rights should be in the form of exclusive rights or in the form of the right to prohibit certain actions. Civil society organizations and organizations representing copyright content providers have consistently raised concerns regarding the potential impact of the proposed treaty. They have underlined the need for the treaty to ensure a “signal” based approach as per the WIPO General Assembly mandate so as to ensure that the creation of an additional layer of rights would not hinder access for users and not have negative repercussions on access to knowledge and the public domain. Issues have also been raised regarding whether the proposed treaty would diminish rights of copyright holders by giving broadcasters the power to determine the conditions and exact a licensing fee under which a work could be used. Countries’ priorities in opening statements at the SCCR Below are the highlights of the opening statements on 30 June at the 28th session of the SCCR on the 3 main agenda items. Uruguay, on behalf of GRULAC, stated that it was necessary to make progress on the three basic texts of each and every one of the areas of work (of the SCCR). It categorically stated that the issue of limitations and exceptions for libraries and archives and educational and research institutions was of the utmost importance for the Group. Uruguay expressed support for the proposal submitted during the last session regarding the holding of regional workshops as a discussion of the challenges facing libraries and archives in the international field and its relationship and limitations and exceptions in copyright. These regional workshops would allow for further delving into discussion among the members and bring the interested parties closer together, it explained. With respect to broadcasting organizations, GRULAC expressed the readiness of all its members to continue to work for the protection of broadcasting organizations, following the mandate which came from the General Assembly of 2007. Bangladesh, on behalf of the Asia Pacific Group, stated that the Group considered all three issues under consideration in the SCCR to be of the same importance though each topic enjoyed different levels of discussion in the committee. Bangladesh reaffirmed the Group’s commitment to the single based approach for the protection of broadcasting organizations as part of the 2007 General Assembly mandate. It underlined that exceptions for libraries and archives and educational and research institutions and for persons with disabilities were extremely crucial for the members of its Group. Limitations and exceptions were an integral part of a more balanced copyright system which would exist for the benefit of rights holders and society. Due to the lack of resources to meet individual needs and the digital divide, libraries and archives and educational and research institutions were the only means to institute education for the members of the group, it explained. Bangladesh on behalf of the Group also proposed appointing a Friend of the Chair to develop working tests for exceptions and limitations from the documents at hand, like other committees of WIPO. It concluded that any future international legal instrument should cater to the principles of human rights, development, freedom and human security especially when we are developing the post-2015 agenda for all. Kenya, speaking for the African Group, highlighted that in the area of exceptions and limitations, the digital environment had brought changes which were revolutionizing how things were done in the past, and these changes were also relevant for libraries and archives. It noted that the digital age was changing how libraries and archives did their work and the current copyright framework only provided protections in the traditional formats. As way of example, Kenya referred to the challenges faced by libraries and archives in the preservation of a hard copy in a digital format. Kenya also referred to the 2012 General Assembly decision on exceptions and limitations for libraries and archives which had called for the SCCR to continue the discussions on an appropriate treaty and all other forms. Kenya stated that while Member States were free to express their views, on the nature of the instrument they would like to see at the end, this should not subtract the committee's work which is first isolating the issues to be dealt with in an objective manner and as clearly as possible. It stated that the nature of the instrument was a secondary matter, and should not therefore be used as an excuse to stall discussions. Kenya also expressed support for the proposal from the Asian Pacific Group for a Friend of the Chair to push the process forward. Belarus, on behalf of the regional group of countries of Central Asia, and Eastern European said that its Group was rather concerned, as issues of procedural and substantive nature had prevented the committee from adopting conclusions at the last session. It added that it hoped the process would not be held up by “insisting on packages as this wouldn’t help the work or strengthen mutual trust”. The Czech Republic, on behalf of Central Europe and Baltic States Group (CEBS), stressed the need for substantive discussion and for time and resources to be used with appropriate care and not procedural matters. It suggested that appropriate time be allocated for broadcasting organizations and reiterated the long-standing priority of the CEBS group in this committee. It stated that the Group was striving for successful conclusion of the work regarding the protection of broadcasting organizations with the aim to recommend to the General Assemblies to convene the diplomatic conference to take place, as soon as possible, preferably in 2015. Japan, on behalf of Group B (group of developed countries), stated that it was a pity that agreement could not be reached on the conclusions at the last session; however this should not undermine the result of the substantive discussion at the last session. It stated that there should be a move to substantive discussion without spending too much time on the negotiation and the procedural issues. Group B underlined its view that further work on broadcasting organizations should be pursued based on the discussion during the past sessions in order to reach conclusions such as definitions, scope of application, and the list of rights of protection to be granted for the purpose – the protection to be granted for the purpose to make a recommendation to the General Assembly in line with its given mandate. With respect to exceptions and limitations in favor of libraries, archives and educational and research institutions, Group B stated that it was willing to engage in the exercise, “keeping in mind that exchange of experiences should enable to use exceptions and limitations in a better way within the existing balanced framework of the international treaties and conventions”. It added that further discussion on the objectives and the principles would make a valuable contribution to this discussion. The European Union stated that the negotiations relating to the protection of broadcasting organizations remained a high priority for the European Union and its Member States. The technical discussions that took place during the 27th standing committee were useful for understanding the differences and the positions between delegations and we stand ready to continue these discussions in order to identify possible compromise options. The EU stated that it believed that in order to achieve a treaty giving broadcasting organizations adequate and effective protection, a broad consensus needed to be built as to the problems that need addressing, and as to the extent of the protection to be granted. We need to continue to work to ensure greater progress in order to be in a position to call for diplomatic conference as soon as possible. Concerning limitations and exceptions, for the benefit of libraries, archives, educational, teaching and research institutions, and for persons with other disabilities, it hoped discussions taking place this week would be “constructive and advanced based on a shared understanding of the objectives and the approach to be followed It reiterated that there was no need for further rulemaking at international level and in this regard it reiterated that the exchange of ideas and best practices was the appropriate way forward on this matter.+ ITEM 2 WIPO SCCR 28 (30 June – 4 July 2014) THIRD WORLD NETWORK INTERVENTION ON THE PROTECTION OF BROADCASTING ORGANIZATIONS We take this opportunity to restate that any discussion on the new broadcasting treaty should be in line with the 2007 General Assembly Decision. According to this decision, agreement on the objectives, specific scope and object of protection of the proposed broadcasting treaty is a necessary pre requisite before the convening of a Diplomatic Conference. We understand that the lack of consensus stems primarily because a number of proposed elements of the draft treaty such as post fixation rights as seen in the informal discussion paper circulated today extend to areas, which go beyond the original aim of the treaty which was only to protect signal piracy. This in a way creates a complete set of new rights to broadcasters and goes against the 2007 decision of the General Assembly. Further, implications of the new standards are still to be understood therefore there is an urgent need to conduct impact assessments, in particular in relation to the different options with respect to key issues such as the scope of protection and the rights to be afforded to broadcasting organizations. In this context, there is a need to assess the impact of the various elements of the proposed treaty on the public domain, access to knowledge and freedom of expression. It is also necessary to look at the impact of the proposed articles on users, performers and authors. As previously expressed by a number of stakeholders, the addition of further layers of protection on copyright content could have negative implications on the free flow of information over the internet and have a negative impact on the public domain and access to knowledge. The proposed broadcasting treaty, in effect, would change the bargaining position of the broadcasters vis-a-vis the content creators and the public, and also extend economic rights to works which were in the public domain and freely accessible to the public. Further, there is a need for greater understanding of the social, cultural and economic implications of the proposed treaty and need to determine how the balance between public and private interests could be adequately reflected. It must be ensured that the broadcasting treaty would not grant rights that are stronger or more extensive in scope than, or duplicative, of the already existing rights in the content of the broadcast. Further, the discussion on the proposed broadcasting treaty should be clearly in line with the WIPO Development Agenda and its implementation. In particular, DA Recommendation 15 states that any kind of norm-setting activities should take into consideration the differences in the development levels of member countries and take into consideration a balance between costs and benefits. Thank you very much.
|
||
