The 11th Meeting of the WIPO Standing Committee on Copyright and Related Rights kicked off with a discussion of a WIPO Database Treaty, and then moved on to the main event: the draft broadcast treaty.
EFF and UPD collaborated on these blow-by-blow notes, written in the same document at the same time using wi-fi, Rendezvous, and SubEthaEdit.
For more information on the Broadcast Treaty, go here. Also check out Cory Doctorow's commentary.
Meeting notes for the 11th meeting of the WIPO Standing Committee on Copyright and Related Rights, 7 June 2004 These notes were collaboratively written by: Cory Doctorow, EFF Wendy Seltzer, EFF David Tannenbaum, UPD Note: These notes were written quickly, in the heat of the session, and there may well be some errors and omissions. They are by no means verbatim, but on the whole they are a comprehensive record of the meeting.
-- [ed. The session began at 3pm, and the first 40 minutes were taken up with discussion on giving more control to non-original database owners.] Database copyright * Previously, we agreed to keep non-original database protection on the agenda, but not consider it at every meeting. We had a meeting without revisiting the question, now's the opportunity to consider any developments in this field * US: There've been minor developments on database protection in the US: two bills in the House * DB And Collections of Info Misapprop Act: Protects databases from misappropriation, with a private cause of action for entities that create databases * Consumer Acess To DBs: Only FTC can bring suit. Establishes a misappropriation regime as opposed to property. Both are in committee. Both are controversial. No legislation has been introduced term in the Senate. No database bill will pass into law in this term. * EC: Old issue, since 1996 the (c) people have been trying to get a proposal to the dip conf, but time was too short. Non-original dbs have protection in many countires on sweat-of-the-brow. EU has harmonized IP protections for DBs. We've stated many times that the EU resolution has been an important incentive or the Euro database sector. A balanced protection encourages production. It is beneficial for investors and users alike. This has gone through court many times, four cases are pending now before the ECJ. We want a db treaty ASAP. * Brazil: We've been at this for ages. No real and substantive discussions have taken place. There's no clear understanding of the potential economic and social impact of database protection. A study that was comissioned by WIPO on database copying in Latin America indicated from the Latin American perspective that regulation is premature. It's detrimental to innovation, science, education, access, etc., particularily in developing countries. In the light of this we want to question the usefulness and convenience of maintaining this on the agenda. This isn't unfinished business, the lacklustre engagement of the committee tells us that this is business we don't want to engage in, and this gets in the way of other business we might choose to address. We ask to have this permanently deleted from the agenda. * Jamie Love (Civil Society Coalition): This is a bad idea. In 1996, there was tons of opposition to this, because it was a new topic and there wasn't enough experience to ascertain the impact on innovation. It was the beginning of the explosive Internet tech growth. It is important now to take full stock of the importance of the free flow of info in light of the success of the internet in informing people and enhancing their political power. The medicine and agribusiness database protection ideas have been in a lot of bilaterals. * Intl pubs assoc: The need for info will become ever more pressing. The problems we have perists even in the absence of db protection. Regarding database protection at WIPO, lots of countries have adopted this, Mexicao, Australia, South Korea, South Africa, Canada, etc. It won't go away through nondiscussion. We need a more in-depth understanding of the real issues. * ALA: The database protection issue in US Congress is significantly controversial, highly unlikely to pass in this Congress. Agree with Brazil, let's take this off the table here. Congress called this a "Solution in search of a problem" -- there's more databases than ever, why do we need this. We don't see a consensus or a need for protection. * Ecuador: On behalf of Latin American and Caribbean group, I would like to make a general statement. We don't think that this should be on the agenda now. * India: Should everyone who produces work by sweat of the brow come here for protection? This isn't creative labour. There's no allegation of widespread copying of non-original databases. Even if there were, the question relevant for this organization is whether this body should be considering nonoriginal databases. Where there's no creativity, databases are assets; that's the apporpriate concern to address by misappropriation, but not intellectual property. Perhaps soem other rubric, some other forum is appropriate. Many entities need protection of sweat of brow assets but we shouldn't have all of them approaching WIPO for a remedy. If EU wants to protect nonoriginal databases, EU can. It's important to leave industry space to develop. at this stage, we need a more careful learning process, not laws that inhibit industry rather than facilitate. Database protection is premature now. Even in long term, it may not be appropriate for WIPO. We recommend the issue be deleted from the Standing Committee's agenda. * Russian federation: We're legislating this at home -- it seems to us that this might be good later in WIPO, but we're not ready to discuss it here in any substance. * US delegation: We think that this should remain on the agenda. We need to exchange more information about what this is and how it works where it's been adopted. * China: We are not enthusiastic about discussing this. I appreciate the Indian and Russian remarks. Some issues need to be clarified. Should IP be used to protect non-original databases? WIPO is here for IP and innovation. Non-original databases aren't creative and are already in the public domain. We need to ask whether it is contradictory to WIPO's objectives. In past discussions and in the new treaties such as WCT and WTO treaties on IP that are outside of WIPO, in all these treaties, only creative or innovative works are afforded protection. Most countries have accepted this. The principle for database protection is to protect the labor of creators and the profit of operators, which should happen, because without investment, we get no innovation. Granting protection to them lets them get return on investment. But should this be in WIPO? Some countries have laws to resolve this problem. I think we should do this with copyright, I think we should do this unfair competition law. This doesn't need to be resolved immediately. Broadcasting is more important that databases. Folklore protection is more important than databases. * Union for Public Domain/David Tannenbaum: The stated justification for protecting databases comes from the idea that proprietary rights are the best way to foster innovation. But there is a contrary view that openness is the best way to foster innovation. The opponents of a database treaty, including Union for the Public Domain, believe that follow-on inventions that come from open databases are more valuable that protecting databases. The decision of six major nations to publicly release the human genome into the public domain shows that some do believe that openness is beneficial to civil society. This comes down to an empirical question which requires objective study. We woud like to suggest that WIPO hold an information session on open source and collaborative models of innovation so we can evaluate what the best path to innovation really is. Chair: Let's table this until the end of the meeting. ---------------------------- [ed. The proposed Broadcast Treaty took up the remainder of the discussion.] Broadcast Treaty ================ * We decided in November to create the consolidated text * The scope has been unclear until now, so we have clarified the scope in a new article * I've been asked, "What is the standing of explanatory notes?" They are a reading device for helping with articles. The articles themselves are where the attention should be focussed. * At the end of this meeting we will have an assessment of the progress of the work and in the light of this assessement there will be a decision made about whether to recommend a diplomatic conference to the secretariat * Next step: a preparatory comittee to set out rules of procedures and invitees for conf * If we don't have progress, we'll need different next steps * Want to hear more from Singapore * General remarks: * Two main branches of discussion * Scope of protection * Substance of protection * Obligation of national treatment, points of attachment, etc * Ecuador: Statement on behalf of Latin American and Carib countries. (GRELAC?) 1. Webcasting: technically and legally complex, recent tech. Not yet sufficiently developed to be regulated. Leave it off. However, simulcasting of broadcasts over the Internet are a part of broadcasting. 2. Cablecasting: need to look at this in more depth, need more analysis of the impact. With this type of study we could favor the option of including it. 3. TM's: Concern wrt impact, and how implemented. Must consider limits and exceptions, and obstacles, impediments to public domain. 4. WRT audiovisual performances: Huh? This falls within the agenda of the general assembly. In Nov 2003, there was some interest in resolving this, we should have more consultations. Let's deal with this ASAP without prejudice in respect of other topics. * Egypt: Statement on behalf of African group. * Used "possible future treaty" in contrast to others, who have said "future treaty" (wants more technical info) * Member states need more time. * African group endorses protection of signals * Exclude Webcasting -- too complex with tech and legal problems requiring further study * Treaty should consider development dimension and promote access to knowledge and dissemination of info -- of paramount importance in digital environment * Wants to revisit performance treaty (audible groan) (Chairman notes that African and Latin American groups have both intervened -- both were opposed to webcasting and wanted more time) * Russia * Thanks WIPO for their help organizing seminar on broadcasting in Moscow region. * "Future treaty": we could propose that existing document be adopted at diplomatic conference; recommend this document and any alternatives it proposes be considered * Emphasize how important and timely this treaty is in protecting broadcasters. Broadcasters themselves are saying this. * EC * Protection of broadcasters through IP rights is established practice in EC, and it works well. * Rome is a good starting point for negotiations * Let's update Rome and not go below it * We will be constructive, but have several issues. Relation to Rome; treatment of webcasters; definitions; exclusive rights [i.e. rights to authorize] versus rights to prohibit; linkage to membership in WCT and WPPT. * Target a diplomatic conference in the not-too-distant future. * Mexico * Our objectives include preparing the convening of the diplomatic conference, once we have the greatest possible consensus. * USA * Numerous proposals have been submitted, including one by US. Look forward to discussing areas of disagreement in not-too-distant future. * Norway * Update protections for all three groups affected by technological progress. Don't let broadcasters suffer for AV performers' failure. * Don't let what happened to performers happen here * We hope this session will close with a recommendation for a diplomatic conference. * Keep this close to the WPPT incoporate alternatives j, m, p, and r. * Leave webcasters out, so we can focus on needs of traditional broadcasters. Maybe webcasters will need yet another treaty, after we've had time to analyze it. * Japan * We hope to adopt this in the near future * Morrocco * Concerned about scope of provisions. * Cut Webcasting -- we've said it before and we say it again. * Study economics of webcasting in several countries including ours * WIPO must give us more info so we can examine the consequences in depth * Diplomatic Conference: We like it. Keep the meeting short, so we can all participate and be assured of a "good outcome." * Mexico * Many of provisions are in line w/our legislation. Such as protecting broadcasts, increasing length of protection to 50 years. * Protect broadcasters, like others, with TPMs * We currently protect our broadcasters under Rome. * Webcasting should be in separate text. * Don't prejudice rights of other rightsholders. * Singapore * Thanks. * Kenya * We hope this results in a diplomatic conference in the near future. Chairman: * This is the end of the beginning. * Let's hear more about the scope from governmental delegations that haven't taken the floor, but don't repeat yourself * Scope = what to protect, whose rights, what acts * 4 candidates for protection: i. transmissions initated by broadcasting organizationss, ii. transmissions by cablecasters, iii. transmissions by webcasting orgs, iv. pre-broadcast signals (found in later article) by those persons/entities who have protection for broadcasts China: Sorry to hear you're ready to move on, I was out of the room and missed my chance, and would like to make a general comment, and so would Hong Kong * Balance is key. Looking not only at broadcasters' interests, but also rights of authors, performers, phonogram producers. * Change preamble to reflect this. * Also include the public's access to education, tech and info * Someone at the Max Planck Institute told me that entertainment is like a shared pie * Can we grow the pie? I think so * A big pie provides more for everyone. * But big pies are also bad, because they cause consumers to pay too much for their pie * How big should pies be? * We organized meetings in China with rightsholder orgs to ask them how they liked the Chairman's Draft * Everyone liked this about the consolidated text, but three concerns(?) i. Influence of new tech on rights of broadcasting orgs ii. Protection of "webcasting rightsholders" iii. Protecting performers * This treaty should focus on the impact of new tech on the rights of broadcasting orgs * Treaty of Rome is good, but we have to consider new tech. eg, Protection could be broadened to cablecasting, and we have solved this problem in China. * Webcasting: we could grant equal or similar rights to authors, performers, phonograph producers. Difference between websites and broadcasting organisations and Internet simulcasting--we haven't reached a point yet where we could grant rights to webcasters that could be similar to broadcast rights. We must avoid creating new imbalances in the system. Before we look to Webcasting protection, we should protect performers who work online (?). * This is not a text for a diplomatic conference. This is a discussion text. We believe protection of broadcasters is based on Rome, and if something has worked well for decades, let's keep it as it stands. * We should keep some of Rome. Rather than exclusive rights, we should continue to muse the right to forbid. (e.g. Our copyright law says broadcasters can prohibit various acts.) -- end of day one session --
