Notes from SCCR 12 discussions on the broadcast treaty

12th Session of the SCCR, Geneva

Election of Chair and Vice Chair

Chair: Jukka Leides

17 November, 2004

Notes by:

Thiru Balasubramaniam, thiru@cptech.org, Consumer Project on Technology
[TB]

David Tannenbaum, davidt@public-domain.org, Union for the Public Domain
[DT]

Cory Doctorow, cory@eff.org, Electronic Frontier Foundation [CD]

Jamie King, jamie@jamie.com [JK]

Volker Grassmuck, vgrass@rz.hu-berlin.de [VG]

--

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Adoption of the Agenda

Proposal by Chile: (Other Issues) Limitations and exceptions agenda item
be taken up before the agenda item on Broadcasters Treaty.

Chair: Wants one hour on L&E discussion today. Then on Friday, we could
have more discussion on the Chilean intervention.

Zambia: Requested a clarification on the programme of work.

Chair: We would discuss Chilean proposal for an hour to taken into
account certain delegations who came specifically for this agenda item
and will not be in Geneva later this week.

Chile: Education, libraries and disabled persons. The General Council of
Unesco said national legistlation should take into account digital works
with respect to libraries, disabled persons. Want to limit copyright and
related rights with respect to disabled people's access to
knowledge/culture, distance culture. Want to talk about positive
initiatives so that libraries and educational institutions can be
helped.

India: Proposal by Chile is important and interesting one. Idea not to
have blanket exceptions. Discuss nature and scope of these exceptions
with respect to Chile's proposals (education, libraries, and disabled).
Seek clarity.

Argentina: We think it is important to discuss the matter. "We think
this information exchange is positive." Not a norm-setting exercise.

Paraguay: View Chilean proposal positively. Have exceptions for the
blind. In digital age, these exceptions are of paramount importance for
the blind.

Syria: Exceptiosn are nothing new in IP legistlation.

Uruguay: ?

Iran: Supports the discussion of Chilean proposal.

Brazil: Very interesting proposal. Support discussion along the lines
proposed.

Egypt: Attaches great importance to libraries, education, and people
with special needs.

Senegal: Requirements related to education, vulnerable citizens,
"Question". Do we have to adopt a document with only with exceptions? He
who talks about exceptions, also deals with principles which are dealt
with in international conventions.

Bangladesh: We support this, but would like to ask the Chilean
delegation if the discussion of these limitations and exceptions deal
with the content onf conventions which have already been agreed upon?

Costa Rica: We think we should broach the subject -- we have some
general views on this in my country, but would value an exchange of
view.

Algeria: Thanks to Chile for making this proposal. This is a matter of
concern to us because we are a developing country -- but will Chile
clarify the purpose of this proposal: is it to re-examine international
conventions, or to assess the application of limitations and exceptions
in existing international instruments?

Dominican Republic: Would like to have this discussed here

China: This is an old problem: ever since copyright was created, all
countries main concerns has been the use and limitations of the rights.
Per article 27 of the Human Rights declaration, copyright is a human
right: members of society should share in the benefits created by
science and literature and have the right to participate in society's
cultural activities, and so authors should be encouraged. This is also a
new problem. How are the rights given to producers limited? The law has
not stipulated exceptions. We should make sure that the general public
will be able to take part in educational and cultural activities. One
problem is the question raised by Chile: "Under this new tech, how do we
deal with traditional limitations and exceptions, give them adjustment,
find new balances. On the one hand the interests of the authors won't be
impeded and the rights of the public to take part in education and other
activities will be upheld. We lack experience with this, like many
developing countries, and we hope to learn from the other developing
countries and the developed world, so that everyone can benefit from new
technology. The Chilean proposal is worth discussion. As to how to
discuss it, I have a question for Chile: do they want to make this one
item during our session, or should be have a special meeting to discuss
this?

Jordan: We support Morocco and Egypt in their question, and I have
another: there are several categories of disabled people here? Is it
just the blind, or other categories as well?

Chile: Thanks to those who shared interest and addresses queries.

Question: does this go further than existing WIPO agreements? Answer:
No, there's a great deal of flexibility in BERNE, TRIPS, and the WIPO
instruments, the goal is to uncover the minimal excpetions to let the
system work well internationally -- how can we find the formulae by
which all countries can find or use these limitations.
Question: Who are the beneficiaries:
Answer: We're talking about education and the disabled and all those who
cannot gain access by traditional means. As to disabilities, we're
thinking of the blind, deaf, paraplegics, who cannot gain access by
traditional means.
Question: How should the work proceed?
Answer: We should gather international success stories so that we can
see which are essential for the good working of the system and then find
a formula to put these exceptions into effect in an international
setting. It's a major stride to be discussing this here and today, and
this should be a standing item on this committee's agenda.

UNESCO: UNESCO has been addressing the issue of a fair balance between
the IP owners and the general public. We conducted a study two years ago
on the nature and scope of L&E's in light of the key mandates of UNESCO.
It has been a very useful contribution to the international debate on
this issue. WIPO's Prof. Ricketson's study is also very useful for
member states. This is an important issue and worth discussing, and this
committee of WIPO is the best platform to address the issue. But at the
same time it seems very important to put the issue into a framework.
What is the ultimate objective of that discussion? While deserving all
the attention possible, especially in the interest of the developing
countries, the forum has to make its direction clear. If it's just a
matter of exchanging views, a simple meeting would suffice. The
objectives of the DDeclaration of Human Rights and others is to promote
the cooperation of the developing and industrialized countries. This
should be conducted in light of the international conventions. An
exchange of opinions and practical experience would be very useful --
studying th epractical interpretation of the three step test by courts
and lawmaking bodies would be very useful. UNESCO is ready to
collaborate with WIPO if this remains on the agenda of the standing
committee.

Chair: Yesterday I was at a meeting where the limit on speaking was two
minutes, and the average of these interve

World Blind Union: Keeping this under two minutes will be a real
challenge. Fairness is at the heart of this issue -- restrictive IP can
stifle education and other sections of society. We need advice from
WIPO, training sessions and so forth.

International Publisher's Association: We represent 78 publishers'
associations in regions and countries, including Chile, Egypt, India,
Brazil and many other countries here today. We want a fair balance: but
this is a sensitive issue. The key isn't the extent of limitations and
exceptions, but cooperation between stakeholders to achieve solutions.
We must discuss cooepration. Publishers in many countries work with
educators, disabled groups, etc to achieve goals. We welcome the idea
that this isn't about modifying international treaties. For example,
look at the EU, which tried to achieve harmonized exceptions, and
produced naught but a list of exceptions and no harmonization. This was
acheived by countries with common economics and culture -- it's
inconceivable that this will be reached on an international level. "Soft
copyright laws" kill local publishing. In the digital environment,
cooperation is the only way forward. IPO wants a proviso that it is
impossible to harmonizing, don't weaken copyright, but promote
cooperation

Chair: We will continue this discussion on Friday. In my own country we
consider this discussion very important. I as the Chair can say this is
very important.

Now we have some treaties to conclude.

[ed. "to conclude"? -DT]

======

Discussion on the Broadcast Treaty

Let's talk now about the broadcast treaty, and have government
delegations make general observations. Tomorrow we'll talk about the
substantive items. Before the end of this afternoon I will offer a
tentative work program for tomorrow that may also extend to Friday
morning. Then we will assess the progress. We are here to make progress.

The General Assembly in Dec made a clear declaration and request to this
committee that this committee should accelerate its work. So we'll try
to accelerate the work to make progress. Why wouldn't we come here if we
wouldn't come for progress? Then in the end we will of course look at
the necessary future steps.

[ed. There was some disagreement at the General Assembly on what their
recommendations to SCCR should be. Brazil and India questioned the
instructions that were eventually given.

We have a new draft and you've had some time to look at it. All changes
have been indicated in this text to make it clear to you to understand
what has happened. All additional text has broken underlining. As
promised and agreed in the June meeting, certain items which have
received extremely limited support have been put within square brackets,
and also indicated with underlining.

[ed. Except for Brazil's suggestion that Article 16 on technology locks
be deleted. For a complete guide to changes, see
http://www.public-domain.org/docs/comparison.pdf -DT]

Alternatives have been added, eg on term of protection. On the basis of
debates, additions have been made to the explanatory comments. In the
area of Arts 9, 10, 11, 12 regarding acts following initial fixation, a
different solution has been added in footnotes. In many places in the
document I have taken the risk of adding one last paragraph in the
explanatory comments and indicated where there are areas where evidently
a great majority is in favor of one or another alternative. Of course
there is nothing binding. That is to indicate to you how the situation
looked after the debates of the June meeting.

Uruguay: We are pleased to see you again guiding our work and we thank
you for the work you've done in submitting this revised version of the
consolidated text.

Uruguay supports concluding a treaty as soon as possible.

Over the years the committee has made progress, and today we have a very
sound consolidated proposal. We imagine that consensus exists

Algeria:

[missed]

Egypt: (on behalf of the African Group): We are supportive of the work
to update the protection of Broadcasting organizations, culminating in a
diplomatic confernece (conference). We want a balanced approach that
takes into account the interests of the public and our policy
objectives, such as access to knowledge. TPMs are a complex issue which
require further study. We are satisfied to see the rich debate from
different participants among government delegations and others. The
consolidated text shows areas where we need to keep working. In
conclusion, the African group wishes to reaffirm the importance of
taking into account the needs and concerns of developing countries.
There is a technological and material gap between broadcasting
organisations in developing countries and developed countries,
particularly African countries. We need to be attentive to this
diffrence to get agreements with wide adherence.

Brazil: I have the privilege to speak on behalf of the group in favor of
a development agenda for WIPO. The last general assembly asked SCCR to
accelerate its work with a view to convening a diplomatic conference in
2005. The group of cosponors of the development agenda would like to
reaffirm its conviction that development concerns must be included in
all WIPO activities, including norm setting. IP protection should not be
an end in itself, nor should upward harmonization proceed irrespective
of countries' levels of development. Action is needed in all countries
to insure costs don't outweigh the benefits of IP protection. New norms
in the field of copyright and related rights can have a serious impact
on the development and social policies of countries in several crucial
areas. The provisions of any treaty in this field must be balanced and
taken on board the interests of consumers and the public at large.
Access to information and knowleddge sharing are essential elements to
foster innovation and creativity in the informatin economy. Adding new
layeers of IP protection to the digital environmment could seriously
obstruct the free flow of info and scuttle efforts to create new
arrangemets to promote innnovation and creativity.

The group also considers the controversy of using TPM's in the digital
environment to be of great concern. The group considers that the
development implications of the proposed treaty are unclear and should
be examined taking into consideration the interests of consumers and of
the public at large.

[CD: BRAAAAAAAZILLL!]

India: We have discussed our concerns, and we have taken serious heed of
the SCCR urging the acceleration of work. To that end we have held
consultations with all stakeholders on these issues. We believe there
are issues that need to be resolved by the stakeholders in our country
and internationally before we can proceed.

We therefore feel that the questions before us and the articles before
us need to be look at carefully, especially those that have caused
difficulty in the past. We should narrow down the articles and see how
quickly we can move so that any diplomatic conference convened could
yield positive results. We don't want to fail as we have in the past,
because of one issue. We should not rush into this before we are fully
prepared.

We should not forget the development dimension and implications of a
broadcasters' treaty. We must be sensitive to the implications it might
have.

Education, health etc will be impacted by a broadcaster's treaty. These
should be investigated before any diplomatic conference.

Iran: This is the second attempt to narrow the views of the delegations.
This will be long and time-consuming. We need to protect broadcasters
but not at the expense of other rightsholders. We're worried about
access to information and public interest. If we are going to accelerate
this work, we should put aside the controversial elements, especially
webcasting. The final clauses in the consolidated text shoudl have an
overall revision.

Morocco: We will be flexible and cooperate in order to get this out the
door in keeping with the general assembly's exhortation to hurry up. We
endorse Egypt's comments on behalf of the African group to expedite,
with a view to having a diplomatic conference. We also think it's
important to strike a balance and take interests of all stakeholders
into consideration, and to study the limits and scope of protection. We
also believe we are required to take into consideration other aspects
which could assist us in accelerating our work.

Perhaps we could hold consultations outside the formal sessions so to
arrive at a consensus.

[DT: It's unclear whether Morocco is referring to regional conferences,
which have been used in the past as a tool to whip countries into shape
without troublesome debate on an international level.]

Serbia: On behalf of Central European and Baltic states, we would like
to congratulate the chair. We are looking forward to discussion.

Mexico: The scope of protection should be handled in due course. There's
consensus on the need for this, so we appeal to members to ship a
treaty.

European Community: On behalf of the EC and its 25 member states,
congratulations Mr. Chairman.

We believe that the new text gives a better overview of the various
opinions expressed in this committee over the last 3 years and a more
precise view of the differences remaining. Although it is a consolidate
text, and not a basic proposal, we are hopeful that on Friday the number
of issues will be further reduced.

There are still several issues to address. There are 2 in particular
that stand in the way of the conclusion of a treaty. Issues that cannot
be overcome by a mere vote at a diplomatic conference.

First, the scope of application. Second, the nature of rights.

As regards scope, there seems to be consensus that transmission by wire
should be covered. But major differences still exist on simulcasting and
webcasting. In the opinion of the EC it would be a poor result if 43
years after the Rome convention and despite a technological revolution
since then, cablecasting would be the only new elements on which we
could agree. We believe the time is probably not right yet to include
webcasting or webcasting organizations in the scope of the instrument,
but it would be logical to give protection to broadcasting organizations
for simulcasting over the web of their own broadcasts. We still think
webcasting is important and needs to be addressed by this committee.

As far as the nature of rights, according to the Rome convention we give
broacasters several exclusive rights. The protection of broadcasters has
been harmonized by the EU since 1992. In the EC protecting broadcasters
with IP is established and works well. We don't want to go backwards.
The footnotes in Article 9, 10, 11 and 12 might seem appealing and to
allow each party to maintain their own system. But it raises questions
about the level of harmonization we wil achieve and how the two systems
will interrelate. Do we need some clause on material reciprocity? A new
treaty should, from our perspective, include Rome-plus elements and
certainly shouldn't go below Rome.

We also believe that we have come a long way.

Ukraine: Article 3 in the consolidated text -- the scope of coverage --
also covers cablecasters and so it's useful. We also support alternative
b to article 24, namely that the eligibilty shouldn't be reserved to
countries that have adopted WCT and WPPT.

Japan: We should accelerate our work based on the revised consolidated
text and move to a diplomatic conference where we can resolve the
outstanding issues.

Senegal: The consolidated text puts us on the right track. The SCCR [CD:
Standing Committee on Copyright and Realted Rights, i.e., this
committee] has made a lot of effort but this matter has been under
discussion for many years. This document would enable us to update the
degree of protection for broadcasters. There are one or two outstanding
issues that are not insurmountable. The basis for this is the Rome
Convention. We must focus our efforts on issues that would move us to a
Diplomatic Conference. Some questions might be more timely than others.
Our target is to improve the rights o the third category of
beneficiaries under Rome, namely broadcasters.

Bangladesh: Local situation -- private and public broadcasters have a
broadcast right that persists for 25 years from the date of airing.
We're reforming this rule for the new technological environment. We want
Webcasting dealt with in another treaty.

New Zealand: Congratulations to the Chair and thank you for the new
text.

New Zealand reserves its position on the substantive issues, but it is
apparent there is a high degree of consensus and few substantive issues
on which there is a meaningful division of opinion.

Review of rights of broadcasters has been on the table for many years.
Rapid progress of technology gives needs to update legal provisions. New
Zealand copyright legislation gives same protection to broadcast and
able programs and literary works. Protection is also provided for
performers. We are not aware of any conflict between broadcasters'
rights and [missed]

No disagreement within committee that cablecasting should be updated by
another treating...

There remains significant opposition to the inclusion of webcasting. At
an international level it's prudent to deal with broadcasters and
cablecasters and deal with webcasters at a later stage. Webcasting is
important and should be dealt with in the future.

States should be able to tailor their regulations.

All countries have an interest in ensuring they have a sucessful
broadcasting industry through which they can devlelop and share their
cultural life. This committee can usefully contribute to that goal..

Norway: Thank you Chair, and thank you for the morning session on A/V
performances.

Goal of reaching an international agreement on these issues -- rights of
performers / broadcasters.

We firmly support the goal of updating protection of broadcasters, and
it should focus on the pressing needs of traditional broadcasters.

We now have an excellent text in front of us. There is a great deal of
consensus here. More can be found in focussing on the remaining issues.

United States: We need to promote and protect communication to the
public by all technological means, and every country needs it,
developing or industrialized. Exclusive rights will promote investment
in this important task. We must not forget the impact of the development
of technology, which means we have to include all technological means
including the increasingly important matter of Webcasting. There's no
good reason to exclude one category of communicator from this instrument
that we've taken so long do develop merely because the means by which
they make their material available to the public. The rights afforded to
cablecasters, broadcasters and webcasters much be considered: protection
must be adequate to protect the legitimate interests of casters without
impinging on the rights of creators. We shouldn't leave the new
technology of webcasting behind to languish in this process.

Russian Federation: Congrats etc. Success etc. Gratitude etc.

A sound basis for discussing individual provisions and articles. We
share the views expressed by those states who want to include here the
subject of webcasters' protection. Protection in cable organisation is
another apt topic. It is advisable to keep the current terminology -- in
particular with regards to broadcasting. Further, the provision to cover
traditional broadcasting organisation and also include a provision
concerning protection in relation to signal _prior_ to broadcasting --
encrypted signals are included in the article; we believe there is not
sufficient reason to establish any other requirements.

[Didn't note speaker two.]

Chairman: Zambia will speak tomorrow. We will cover the remaining issues
in reverse-order of difficulty, so the Webcasting stuff will come at the
very end.

DAY 2: Broadcast Treaty

18 November, 2004

Notes by:

Thiru Balasubramaniam, thiru@cptech.org, Consumer Project on Technology
[TB]

David Tannenbaum, davidt@public-domain.org, Union for the Public Domain
[DT]

Cory Doctorow, cory@eff.org, Electronic Frontier Foundation [CD]

EFF distributed its "Letter from 20 Technology Companies" opposing the
inclusion of Webcasting this morning.

--

Chair: We'll now continue to the end of the general discussion, and then
I will propose a work program for the rest of the day.

Zambia: Chair, congratulations on your election.

Thank you Egypt for making an inspiring statement.

It was also inspiring to hear about meetings held by delegations with
their stakeholders and the enthusiasm for supporting broadcasters as
soon as possible. Let's clear up all the remaining issues this week.
Let's go for at least three issues.

Perhaps we could have regional meanings as soon as February next year.

[CD: Regional meetings are viewed as a means to divide up the opposing
sides here, by separating, for example, India and Brazil, and
negotiating with them one at a time in a room filled with heavily
influenced national broadcasters. It's also likely that fewer "civil
society" NGOs will be able to attend these and give the other side.]

Let us recall that the general assembly requested this committee to
accelerate its work with a view to approving a diplomatic conference.

We need leadership from our big trading partners to motivate delegates
like mine.

We fully understand the importance of new countries like webcasting and
simulcasting in some countries. However in my country these issues are
not ripe for legislation and we would consider it counterproductive to
consider how these technologies would develop. We do support including
these issues in the treaty. Members like our country need more time to
understand these technologies. To do otherwise would put logic upside
down.

In my country the broadcaster is the most important means that our
people have of sharing our culture. The broadcaster is a motor of
development and has a key responsibility in insuring social cohesion. We
see this treaty as a central component of development. The time has come
to move this process to a positive conclusion.

China: This revised consolidated text has shown lots of flexibility and
provided a good basis for our discussion. Thanks to the secretariat.

The Chinese delegation will actively promote the progress of meeting,
following the principles of justice and reasonableness. We want to
protect not just the interests of inventors, but also the interests of
the general public.

Between the developed and developing countries, there are many many
differences and gaps, economic and social. Therefore we should work hard
to reduce the divergence and increase our consensus.

This is the 12th meeting to formulate protection for the broadcasting
organizations. This new text is a supplement to the Rome convention. Our
divergence is greater than consensus. There are many important questions
still to discuss.

On the scope of protection, the protection of cablecasters is reasonable
because this is not very different from the wireless broadcasting
organizations.

On webcasting, this may be reasonable, but to reach consensus and
establish a treaty this will cause difficulties. For most countries,
including China, the immediate problem is not how to protect the rights
of the webcasting organizations. Rather the question is how to regulate
their behavior. I can't speak about other countries, but I feel the
problem we have is not that Chinese webcasters' rights have been
impinged upon, rather they have impinged on the rights of other
performers, producers and authors. Therefore for China, our immediate
problem is how to regulate their behavior. We suggest the standing
committee should leave this question aside and not try to force it into
our new treaty.

On giving broadcasters exclusive rights, the rights of the broadcasting
organizations is a question of the limitation or prohibition. We can try
to look to the Rome convention, which has been in effect for 30 years
and has many members. China is not a member of the Rome Convention,
however, when we formulate Chinese law on copyright, we have taken Rome
into account.

We believe the reproducing rights should be limited. The consolidate
text has expressed this idea. We believe this is a limited right. This
right should only apply to...? We have reservations on this point.

On technological protection measures, some have pointed out that this is
not a question of broadcasting signals. On this question we cannot copy
directly the WPPT. We need more study on this question. If the control
is so strict, it will affect the communication of information. So we
should study this further.

In our earlier discussions, we and many others have raised another
question, the rights of the performers. This question is the reason why
no consensus was reached during the last diplomatic conference, but we
can't say it shouldn't be discussed further.

Some countries have raised the question of folklore. These questions are
closely related to the protection of the rights of the broadcasting
organizations and perhaps our standing committee should pay more
attention to this question.

Togo: Thank you Chairman for you skills and consolidated text.

On webcasting, I believe we need an in-depth study.

We think the time has come to accelerate work as required by the general
assembly so that broadcasting organizations finally have an
international instrument to be better protected against piracy of their
signals and also take into account the protection of other rights. On
many positions there is a certain degree of convergence.

Outstanding issues can be resolve in the present session or in the
rounds prior to the convening of the diplomatic conference, or even in
the diplomatic conference itself.

The developing countries are showing extraordinary growth rate in the
broadcasting sector. Broadcasters participate in cultural development
and the development of our countries. They require effective protection.

My delegation would like regional consultations, and perhaps the
committee could set a date for such a conference.

Kenya: My delegation fully supports the statement by Egypt on behalf of
the African Group. My delegation also fully supports the statement by
Brazil on the Development Agenda. We take note of the fact that these
negotiations have dragged on for over 7 years. We should avoid
celebrating a decade of these negotiations. There is enough convergence
on the substantive issues to warrant progress.

Australia: Australian law already provides for most of the Rome plus
protection proposed in the draft treaty text.

The nature of protection of pre-broadcast signals needs reconsideration.

Assimilation of webcasters to broadcasters raises issues. For instance,
broadcasters are licensed in Australia and as such they have public
obligations under regulation. As previous speakers haven noted,
webcasters in relation to their countries are not subject to the
obligations imposed on broadcasters. For this reason alone, and there
are others, we think protection of webcasters needs further and separate
consideration. We would participate in separate discussions.

Argentina: We need to have an agreement that will stop piracy of
signals. We will take the floor again on specific points when we come to
them.

Nigeria: We broadly support the work of the committee and pledge our
support. However, making progress for its own sake is not satisfactory:
this is an evolutionary process. We're taking measures to digest and
appreciate issues before moving forward. We want to support the Africa
group's points that require further discussion. In light of that, we
have recommended to our capital to draw their attention to matters of
importance to us for thorough examination before definite steps are
taken. We want to see a final outcome achieved here and that it reflects
the interests of all parties.

Azerbaijan: We believe that the revised text is a well-balanced document
that can be used as the basis for adopting a treaty.

Chair: We will move now to specific issues.

[CD: The chair has foreclosed on the presentation of general statements
by NGOs!]

We don't have time for a full debate of every controversial item.

We may put further elements in square brackets. We've already bracketed
web elements and an element concerning technological protection
measures. The square brackets mean the elements mean they are in one or
another way out of the text.

Chair: We will first visit those areas which are less political in
nature.

Alternative V, which has received limited support.

Then paragraph 4, beneficiaries. Article 14, L&E's, alternative T.

Higher level of difficulty: - Article 1, relation to other treaties. -
Eligibility for becoming a party. - Article 16 proposal to delete it

Highest level of difficulty: - Article concerning acts after fixation -
Alternatives for protection

what do you mean? - Article 7 - can we delete the whole article? -
Article 2 definitions - web has to disappear is my tentative thesis

Morocco: We want something clarified: are we going to be examining the
articles article-by-article, or are you presenting us with a group of
articles on which to express our views. Will the articles that receive
support be merged to form a temporary draft while the others are set
aside.

Chair: The plan is to take a look at articles with alternatives in the
text, which are based on differing written proposals by government. The
other articles had convergence from several governments. By this means
we can take the temperature of the room on each controversial clause. We
will deal with the articles one by one, except for arts 9-10-11-12.

There will be no coffee break this morning.

[Powerpoint: 1. Article 16: Technological Protection Measures

- Alt V - Proposed to be deleted

- Alt W - selected (no such provision)]

Brazil: You have told us that you would accept "silence" as concurrence.
Not everything in the alternative text reflects everything proposed to
this committee. In fact, last time we proposed to delete this entire
article, and we think this proposal should have been deleted as an
alternative. In fact we were told by you that it would included as an
alternative in the revised text in the course of the discussion we had
on the floor.

We have a basic concern with the way you are approaching our discussion
on this article because you're basically asking us to tell you which of
these two proposed alternatives, the ones you have listed on the screen,
would be preferable. The fact of the matter is that we see little point
to actually asking that question before addressing the more fundamental
question, the much more important question of whether this article
should be present in the treaty at all, or not.

My concern is that in fact you will interpret expressions of preference
for any one of the two alternatives as somehow an indication that the
maintenance of this article counts on the support of members of the
committee, and Mr. Chairman we cannot agree to proceed on the basis of
that assumption.

Chair: Thank you. Question 6 will be whether to strike article 16
altogether. First, though I want to see whether we're going to strike
article 16 v or w.

India: We don't want to come to an unsatisfactory agreement. Please
clarify: we thought you were going to take up those articles with more
than one view (i.e. alts v and w for article 16). Our recollection of
paragraph one as it emerged from the last session was that that, too,
should have had an alternative: we'd have x (the current version) and y:
no such provision. We clearly recall Brazil's opposition to Article 16.
There should have been two alternatives for paragraph 1. One of them
would read, "No such provision". We were surprised to see that this
alternative was not provide.

Chair: Our method -- now questioned -- was that all aspects that were
found in the *written* proposals were in the articles. But oral-only
remarks are reflected in the explanatory comments. We can change this --
it would be easy.

Russian Federation: The first paragraph is a general statement and the
second paragraph makes these statement concrete.

Chair: There is no need for the rest of delegations to talk about
Article 16 more generally. We are only talking about Alt. V.

Argentina: While we haven't received much support for our proposal,
there is a much more substantive issue at stake here. No one actually
opposed Alt. V and there was even some support for it. Without
additional instructions and without having the general context for what
will happen with this article, it's difficult for us to tell you what is
final. We are in fact negotiating and this is not our final word. We
haven't heard anyone opposing this, but if there is anyone opposing it,
we would like to hear the reasons.

Chair: We will leave this in square brackets for the next draft.

Switzerland: At this stage I'm not in a position to give any final reply
and I would like to reserve our position. We are in favor of a provision
on technological measures, but the question is how this would be
included.

Chair: Everyone can add their comments on this later, or after the
meeting.

Senegal: Thank you, but I waive my right to the floor.

Chair: [Powerpoint: 2. Article 4: Beneficiaries of Protection - Alt. H
proposed to be deleted - Alt. I selected (no such provision)]

The question here is mainly directed to the EC. The effect of that
element is to narrow the scope to cases where only both headquarters and
transmitter are in the same country.

EC: Since we proposed this and there seems no proposal to support this
from other state, I can't claim overwhelming support for this provision.
We proposed it because it reflects the situation under Rome. I think our
8 member states have made use of this provision under Article 6(2) of
Rome. We have a coordination meeting at 2pm. We would like to take a
little bit more time before we take a more definite view. We may need
this provision to reflect the actual state of play in the union and we
will discuss this at 2pm with our member states. We may come back to
this in the afternoon.

Chair: I hope countries will show flexibility.

Russian Federation: As regards Alt. H, we believe that it is subject to
relevant drafting of Art. 6(2) of the Rome convention. And if we reject
the application of 6(2) then we need to redraft this and have a
reservation that contracting parties shall not apply 6(2) of the Rome
convention. Otherwise there may be a contradiction in the text and we
would not like to see that.

Chair: Thank you for your remarks of a legal nature. OK, let's look at
Article 14.

[Powerpoint: 3. Article 14: (Limitations and Exceptions) - Alt. T
proposed to be deleted - Alt. U selected (no such provision)

[DT: Alternative T is a crucial clause. Without it there is hardly any
scope for exceptions. Even with it the scope is narrow. The Public
Knowledge report from SCCR 11 has a good section on this issue.]

United States: This proposal was included in our original text because
it reflects our domestic legislation and reflects widely accepted
provisions. While this is very important to us and to our public
broadcasting system, it's possible that these provisions might be
protected under an appropriate application of the 3-step test. If there
were an understanding that the limitations we have in favor of public
broadcasting entities could be exercised under the 3-step test, we could
agree for this provision to be deleted. However, we need to think a bit
more about this and determine what sort of flexibility is present in the
representations of other delegations.

Egypt: My delegation is keen on Alternative T. We are keen that a
grandfathering clause should be in the text to allow contracting parties
to maintain a limitations and exceptions related to retransmissions. We
agree with U.S. that we need more time to measure the flexibility of the
membership. We would like this alternative in the next version of the
text.

Chair: Subject to subsequent comments, Alternative T will be kept in the
text.

Chile: We request that other members envisage the possibility of
including additional exceptions including transfer rules as they exist
in the Rome convention.

Chair: My provisional immediate reply would be that this new instrument
should not affect existing instruments. We would not make any carve outs
or change the Rome convention.

Chile: We think it would be preferable to include in Art. 14 the
specific request to provide for exceptions in cases of broadcasters
which already enjoy the provision of Article 15 of the Rome convention.

[CD: How can you update the rights of broadcasters without effecting the
previous interests that set out the rights of broadcasters?]

Russia[?]: I believe there should be a universal application for all
parties, and we should go with the 3 step test.

Argentina: I reserve comment on alternative T -- I have been instructed
to reiterate our interest that 14.0.1 be kept.

Mexico: We believe that paragraph 1 of article 14 should be incorporated
in this new version, including the sentence, "and the protection of
related rights."

Chair: Group 2

[Powerpoint: 4. Article 1: Relation to Other Treaties - Alt. A proposed
to be deleted - Alt. B selected and clarified]

Senegal: We believe Alt. B would be the proper one.

Chair:

Russia: We support Alt. B because it is more flexible and will be far
more acceptable.

EC: The pain level is starting to increase, but this is helpful. We
quite like Alternative A.

[CD: Alternative A is very narrow, and says that this treaty won't
override Rome and the WCT -- alternative B says that this treaty won't
override any treaty]

Egypt: We favor Alternative B which has just been supported by the
delegation of Senegal.

Morocco: We support Alt. B?

?: We support Alternative B.

Columbia: We support Alternative A.

Chair:

?: Are paragraphs 2 and 3 included under alternative A or not?

Chair: Paragraphs 2 and 3 are clean text and will probably be in the
final product.

India: We support alternative A. It is clearer and spells out the whole
scope of our obligations, while B is more open and hence vague.

We have questions about para 3, since it seems clear that adopting any
treaty here will prejudice rights and obligations under other treaties.
For example, limits and exceptions under other treaty may be broader
than those in this treaty.

Chair: We are only talking about paragraph 1 now. Paragraphs 2 and 3
come from the 1996 treaties.

Alternative A is para 1 is narrower. Its scope is Rome only.

For the moment it seems like we can not delete one or the other.

Ukraine: Alternative B is more effective and more logical -- it's more
flexible. It includes all other copyright and related rights treaties.

Australia: Perhaps we could build in a reference to Rome in alternative
B.

[CD: No, that doesn't answer the problems of the A supporters, who want
to cabin the list of sacrosanct treaties]

Chair: Elsewhere we have a non-exhaustive list of treaties this can't
overstep, that includes Rome.

[CD: Right -- the point of A is to limit the sacrosanct treaties, not
render all treaties inviolable]

Mexico: We like alternative B because it fits better with our national
law and provides clearer protection.

Togo: We support alternative B, because it proposes a broader safeguard.
Regarding alternative A, confining ourselves to Rome means that states
that aren't Rome signatories won't have to act in conformity with it.
Alternative B is broader.

Chile: I understand India's concern.

India: We can use logic to understand the law, even if we're not lawyers
[bwahahaha]. I don't understand how can there be contradictions in
obligations: you could have obligations for treaty 1 and obligations
under treaty 2. Your obligation set may expand, but how can it conflict?
This is meant to underscore one's obligations, and nothing can change
your existing obligations. My problem is with paragraph 3: what 3 says
is that if there is a right -- held by a broadcaster etc -- under one
treaty, that those rights will not be abridged by another treaty. Very
often that is the case, and I don't see how you can get out of that. We
need to look at 3 more closely. A state might abridge the rights of a
party to Rome because of the corresponding paragraph under article 14
and that may not be available to the party under 4. Therefore a
broadcaster might feel shortchanged under one or the other treaty.

Chair: Paragraph 2's objective is to say that this treaty doesn't touch,
at all, the subject of copyright and related rights treaties that deal
with the programs. The rights of broadcasters cannot touch those rights
-- they are out of the scope of this instrument.

Islamic Republic of Iran: We support alternative B -- it's more
compatible with our law. We reserve comment on it.

Sudan: Chile's proposal is good -- and deserves all our attention. The
African group position is that alternative B is better.

Chair: It seems that Alt. B receives broad support, Alt. A also receives
support. I can't say whether it's more limited or not. I could not draw
any conclusion on this.

After lunch we will tackle Art. 24, Alternative AA; Article 16, proposal
to delete all article; Arts. 9, 10, 11, 12, footnotes and 2-tier
protection; Art. 15, 20 or 50 years term; Art. 7, delete article on
communication to the public; webcasting and simulcasting.

Brazil: We would like the NGOs to speak after each cluster. We're
disturbed to hear that NGOs' documents were trashed. We petition the
secretariat to address this and prevent it from recurring.

India: I am quite alarmed by the fact that documents by produced by
public interest NGOs were found trashed. The democratic process has
been thwarted by these type of actions.

The other issue is that, as mentioned by Brazil, we attend a lot of WIPO
meetings and the organization is quite open in allowing participation,
in which Governments, intergovernmental bodies and NGOs are given a
chance to speak in order. We've yet to hear from the NGOs on this --
when will this happen? If it happens at the end, it will serve no good
because it will arrive too late to inform our positions on this subject.

Chair: This isn't a marketplace, people from the street aren't allowed
into these halls. Security only allows professionals with credentials
in. Now it appears that one of our number is doing not so well-educated.
Secretariat, how can these people solve their problem?

Secretariat: The table is left for delegates to put their different
papers on the table. The rule is that we cannot copy papers that you
bring. The Brazilian/Indian issue regarding throwing away documents was
brought to my attention right before lunch and I've talked to conference
services who were not aware of it and are very concerned about it and
they will do their best to ensure that this won't recur. This is
unfortunate. Does legal counsel have any comment? I ask all of you here
to follow the procedure that we have had over the years.

Chair: All of the documents presented by parties here are most welcome.

Algeria: With regard to the point raised by Brazil, in my view, priority
should be given to government representatives since we have to
accelerate our work. We condemn these actions if they were deliberate.

Senegal: Allow me to thank Brazil for making an interesting point about
the activities of NGOs. I think this was made in a totally constructive
frame of mind. However, while thanking the distinguished delegate of
India with regard to the ranking of speakers, I think we have a
tradition in our debates that delegations take the floor before NGOs
take the floor on major issues. We've always appreciated the
contribution of NGOs because among the NGOs that are there there are
organizations who defend the rights of rightsholders, and we also have
organizations defending the rights of users. We also find
representatives of civil society. And who is that, it's you and me. So I
think there should be no difficulty. We need NGOs, but in such a body we
should follow procedures. This will enable us to save time. I think in
the past that we have made important progress through the contributions
of NGOs.

With regard to this document business, I don't know what happened but
I've never had problems and just this morning I took documents that were
lying on the table. If such a regrettable purpose was perpetrated, I
think that this must be due to a misunderstanding and I sincerely hope
this will not occur in the future.

New Zealand: I would like to express support for the comments made by
the delegates of Algeria and Senegal. The comments of NGOs are no doubt
extremely valuable, however given the excellent progress made this
morning in working through some of the substantive issues, we think
priority should be given at this stage to the government delegations.

Chair: We should finish the round of discussions on those questions
formulated. These questions are extremely relevant if you think about
where progress can be made and has to be made. The shorter that debate
will be, the sooner the NGOs will get the floor. This is so short that
everything will be fresh in the minds of everyone. If we can get to the
end of this round the NGOs will be given the floor immediately. If we
cannot finish this evening then of course that will be the first order
of business tomorrow morning. We cannot break and change the order of
the business because as you see, any round of opinions and interventions
will always take time.

Now that it's 4pm, we have to shorten debates compared to this morning's
debates.

Brazil: If we want to make progress in our discussions we also think we
should try to make sure we start beginning our meetings on time and not
40 minutes late which I think has been a record this week. We also don't
appreciate the fact that our coffee breaks are being sacrificed.

Chair: Article 24 deals with the eligibility for becoming party.

5. Article 24: Eligibility for Becoming Party)

[Powerpoint: 5. Art. 24 (Eligibility for Becoming Party) - Alt. AA
proposed to be deleted - Alt. Z selected

- consequently: Art. 25., Alt. BB selected]

[CD: Alternative AA is a requirement that signatories also come on board
the WIPO Internet Treaties, WCT and WPPT. It's bad because it's a back
door into forcing countries that have decided for good and sufficient
reasons not to sign onto those treaties, which contain lots of bad stuff
like notice and takedown and anti-circumvention]

Egypt, speaking for Africa: We support alternative Z -- there should be
no restriction on joining the treaty, alternative Z will make it easier
to get signatories.

U.S.: The U.S. is not in a position to accede to the removal of AA. Many
delegations have expressed concern over potential conflict between
protection for broadcasters and other related rights holders and
copyright holders. This has precedent in Art. 24 of the Rome convention,
and is essential that the rights of authors, phonogram producers, and
performers are not adversely affected by this new protection for
broadcasters. It's also consistent with the position that neighboring
rights holders shouldn't have more rights than copyright holders.

Democratic Republic of Congo: We support the African group's position in
favor of alternative Z

Mexico: We support Z. We note with concern that signing this might be
dependent on the WCT and WPPT which would be to the detriment of this
treaty's coming into force and could jeopardize the treaty.

Islamic Republic of Iran: We support Alternative Z. Alternative AA is
contrary to the freedom of determination of states and is inconsistent
with 1(b) para 3.

Syria: We support Alternative Z.

Zambia: We know that our big trading partner likes consensus, and we
urge the only party on the other side of this issue from everyone else
to be flexible.

Chair: Alternative AA could be put into square brackets. I hesitate to
do this, but when we see clear majorities it may be appropriate.

EC: For us this isn't much of an important issue. I hope that when we
get to a diplomatic conference there will be more members of the WCT and
WPPT, and Alternative AA will become less and less important. As the
U.S. has reminded us, the linkage to other rightsholders is an important
and sensitive issue. But as far as we're concerned, it may be
appropriate to bracket.

We have some flexibility to offer on beneficiaries of protection. We are
ready to look more favorable to alternative B in section 1. However, we
would probably need more guidance from our legal experts. What would be
the effect of using a different formulation from that in WCT and WPPT.
We hope legal counsel from WIPO could give us further guidance. We need
to reflect, but a priori I think we need some flexibility here. I'm
happy to say I think we can put Alternative A between square brackets.

Chair: The legal counsel is ready to take the floor.

Legal counsel: The practice in the past was to make it a condition of
Paris or Berne in order to accede to a new treaty. But in the more
recent practice it has been the other way around. It has been the
formulation you currently see in Alt. Z. The current practice is that
you only need to be a part of any WIPO treaty. Currently there are 48
states signed on to WCT and 45 for WPPT.

Morocco: We prefer alternative Z.

Chair: This suffices for Art. 24.

India: The argument put forth by the U.S. does have merit. We are
proceeding to grant additional rights to the broadcasters potentially at
the expense of performers and copyright holders. In the past we've
expressed concern that the underlying rights holders rights should not
be trampled on. And that is the consequence of Alternative Z.

[CD: This can be remedied by controlling the grant of rights to the
broadcasters -- if those rights are strictly cabined so as not to
overlap with copyright, the problem is solved.]

Chair: It's clear that we shouldn't trample on anyone else's rights.

[DT: By the chairman's logic, this treaty should clearly not go through.
Even if WPT and WCCT were accepted, performers would still suffer, as
would those who produce under Creative Commons, copyleft, and those who
release material into the public domain.]

6. Article 16 (Obligations concerning Technological Measures)

Chair: Brazil has proposed the deletion of all of article 16, for
reasons set out in paragraph 16.07. I propose not deleting this.

Switzerland: We want to retain 16, it's our view that protecting TPMs
should be based on the WCT. We can support alternative W and will give
up support for V

Senegal: I want to insist on the importance of article 16. It is an
essential article and it seems to me that it constitutes the very
structure of the protection that broadcasters are asking for. It's
difficult to contemplate a broadcast protection treaty that doesn't
include a discussion of TPMs. If this document is a human being, article
16 is a vital organ.

Chile: We recognize the usefulness of TPMs for protecting authors'
rights and related rights. We're also aware that the application of past
treaties with similar provisions have given rise to problems regarding
the use of works in the public domain and the legitimate use of
protected works. We need to find a way to be sure that these measures
don't unduly effect the public domain. Therefore we continue to support
Brazil's proposal to not include article 16.

Zambia: We would like to offer a compromise approach. After hearing two
differing views -- and maybe the legal counsel will assist us -- our
understanding is that Article 16.1 appears to be similar to the TPM
regime in WPPT, which allows members choice. If that's the case then
this might be a good compromise to keep 16.1, which is between deleting
the whole article and on the other hand 16.2.

[DT: Article 16, Para 1, reads: "Contracting Parties shall provide
adequate legal protection and effective legal remedies against the
circumvention of effective technological measures that are used by
broadcasting organizations in connection with the exercise of their
rights under this Treaty and that restrict acts, in respect of their
broadcasts, that are not authorized or are prohibited by the
broadcasting organizations concerned or permitted by law." That word,
"shall," makes this mandatory.]

Syria: We support Brazil's proposal. It's very important for us to have
access to information!

India: We were engaged in intensive consultations involving all levels
of government and stakeholders regarding this. This article has been of
great concern, for obvious reasons. There is a recognition that with the
evolution of technology we will need to address the implications it has
for protection. On the other hand we have to respect the public domain.

Article 18 of the WPPT has a similar set of concerns. And while the harm
to the public domain might in some ways be less in the case of the
corresponding WPPT article, the potential harm of Art. 16(1) is probably
much greater. We recognize that there is a need for something, but we
are still in the process of examining all the implications and points of
view that stakeholders brings to these discussions, and for the time
being we would not like to rule out the option of having or not having
Art. 16. We are not in a position to take any position on this right
now.

Algeria: We want to keep Article 16.

Islamic Republic of Iran: We are still consulting with our capital on
this and we look on it with reservation.

Morocco: We attach great importance to TPMs and think we should keep
article 16 for many reasons, mainly that the lack of such an article in
a new instrument could endanger much of the protection that we wish to
guarantee. This article is also in keeping with our national
legislation.

Russian federation: We think it's extremely important to keep Art. 16
but we could imagine recasting the wording.

Chair: Before tackling the next set of questions, it seems that a new
version of Article 16 maybe should be presented in three ways. Either
with paragraph 1 and alternative V, with paragraph 1 and no alternative
V, or with Brazil's proposal for no article at all. Whether we present
the first option depends on Argentina's position.

[Powerpoint: 7. Rights Concerning Acts After Fixation

Article 9 -- Right of Reproduction

Article 10 -- Right of Distribution

Article 11 -- Right of Transmissions Following Reception

Article 12 -- Right of Making Available of Fixed Broadcasts

Suggestion: make possible two-tier level of protection as in footnotes]

Switzerland: I welcome your efforts to reach a compromise, however I
have some questions about the way of approaching this and the effect of
harmonization because this is really the heart of the treaty. I have no
definitive views on this but I do have a lot of questions and concerns.

Chair: I understand Switzerland takes a reservation on having the right
to prohibit side-by-side with the normal exclusive right.

Russian federation: We support you proposal for two-tiers of protection.
We think we could get a consensus on this.

Chile: We don't have a definitive position.

Chair: We have to think about your remark, what is the relation between
the right to prohibit to the rights of remuneration? My immediate
response is that the exclusive rights have nothing to do with the right
of remuneration. If someone gives their consent for use, the agreed
conditions prevail and that might include remuneration. There is no
connection between this and rights of remuneration that we find in other
treaties, as in Art. 12 of Berne. This is my analysis. It may be
contested but I leave it for your consideration.

Zambia: My delegation's earlier statement was for us to move towards
harvesting at least three or four articles. For this article we clearly
think we can make a decision and move to other articles that may need
our time much more.

For instance in the spirit of compromise we think the suggestion of a
two-tier level offers a very important compromise. As I understand this
would allow all countries with the right to authorize to keep their
rights, as well as allow other countries to keep their systems in place.
I would like to urge this meeting to feel proud to make conclusions to
register achievements as we move towards things we haven't agreed on
yet.

Mr. Chair, can you appeal to our colleagues with questions to at least
accept the two-tier provision?

Chair: You have a nice way of putting things. I try to emulate it.

Canada: We like the two-tier approach and we will scrutinize it to see
what impact it might have on our private sector.

[CD: Canada hates the retransmission right because Canadian cable
operators are free to retransmit broadcasters without permission,
provided they have a license from creators]

New Zealand: Now final position but would note two points: NZ law grants
same rights to broadcast as to copyright works, without any problems
resulting; useful to maintain consistency with rights provided in Rome
and WPPT and depart from that only with good reason or need.

Brazil: Yet to have a defined position on these articles and will
reserve right to return to this question at later sessions as well as
the right to propose alternative language that is not as yet contained
in the revised consolidated text.

United States: Our two-tier approach is intended to address many
delegations' concerns over protection under this treaty and the rights
of creators and other rightsholders. The difference between our approach
and the footnotes approach is close, but the footnotes are likely to
lead to confusion. Alternative S leaves countries free to provide a
higher level of protection for those rights -- the floor should be a
right to prohibit, only.

Chair:

[Powerpoint: 8. Art. 15 Term of protection - Alt. EE proposed to be
deleted - Alt. DD selected]

[DT: Alternative EE appeared for the first time in this draft. It calls
for a 20 year term of protection, which has been the international
standard since Rome and Brussels. Broadcasters are trying to grab 50
years, Alternative DD.]

Singapore: Our position remains as it has since the 11th session. In all
respects of the treaty as discussion, our position is our proposal. We
didn't expect that the term of protection proposal would be so
controversial. We think that this right is like Rome, so we proposed its
term. We think countries should be able to choose their own terms. For
example, we provide 50 years for broadcasters.

India: We support Singapore for good reasons: there is a relationship
between the term of protection and the thing that is being protected.
The WPPT deals with content, and so it tracks the practices of
copyright. The protection for broadcasters in Rome was duly considered
and arrived at. We should take our cue from Rome, which is more relevant
than the WPPT.

Chair: Your opinion in the last session was decisive for why the 20 year
proposal was included in the latest draft.

Syria: We support 20 years per Singapore.

Chair: This way, brief interventions, are the way to register opinions.

Chile: We support the proposal by Singapore particularly since we have
not defined who will benefit from this protection.

Mexico: We support Alternative DD, 50 years.

Argentina: We maintain our position as mentioned in the written
proposal.

Morocco: We support the term of protection that is contained in the Rome
Convention.

[DT: i.e., 20 years]

Brazil: Brazil would like the two alternatives to be kept in the
alternative text. We are still studying these proposals at our capital

Togo: We think the Singaporean proposal should be studied further.

Chair: We shall consider Article 7.

[Powerpoint: 9. Art. 7 (Right of Communication to the Public) -
Suggestion: delete the whole Article]

Switzerland: I'm not sure I understood what you meant about the article
being left over from the 1950s. I think the issue is still live today,
not just for broadcasts, but for things downloaded from the internet. I
think it's rather premature to delete this article completely. My
position isn't final, but I have a reservation.

Chair: Article 7 has nothing to do with downloading or anything that
happens in broadcasting itself. This concerns making broadcasts
available in a public places where a fee is required to enter. I have
not seen such a situation since the 1950s. Nowadays we don't have
entrance fees to watch television in public places.

Australia: Our inclination is that if Art. 7 is retained, we would want
the right of reservation included in the Rome convention. We know there
is an instinctive reaction against having Rome minus, but it isn't
really, since if you include a reservation you're back to zero. We
support deletion of the article.

Chair: Having something in Rome that is not found in this instrument
would not be Rome minus. The museum piece in Rome would still be binding
on those who are party to Rome. We will have to keep Art. 7 on the basis
of this discussion.

Senegal: I'm confused: As you've pointed out, Art 13 of Rome hasn't been
applied at all. So if we look at it in terms of legal/economic value,
the result is nil. But my concern is that this exercise result in
"Rome-plus" protection. Bringing it down a level gives the impression
that this is less. My concern is that rather than considering the
deletion of this article, I would like it to be retained and then during
our discussions, let's see how we can improve it by making it easier to
exercise. At the Olympics, I was attacked by the radio and the
television that had paid large fees, and the broadcasts were being
played at hotels. There was no entry fee at the hotel. We should keep
this and look at it carefully to be sure that it can be useful, not a
museum piece.

[CD: She wants to give HBO the right to sue bar owners who throw
Sopranos parties, basically]

Argentina: We support keeping the article.

Chair:

[Powerpoint: Art. 2 (Definitions) + Art. 3 (Scope) - Art. 2 / Alt. C
proposed to be deleted - Art. 3 / Alt. E and F proposed to be deleted

- suggestion 1: Alt. D + G selected (no provisions on the web) -
suggestion 2: search another kind of solution]

It seems that it would not be possible to get broad support for this
part of the project. It would seem that including it would make
negotiation on the rest of the project difficult. It would almost block
any meaningful progress, in light of discussions in several meanings. In
the last 2 meetings we have heard growing positive interest from those
against now considering protecting webcasters in this context, in
considering this in the future, perhaps deserving a project of its own.
A document distributed by the Japanese delegation indicated this
position.

We have a proposal by one delegation to cover webcasting, we have
opposition from virtually all sides.

We have a proposal by the European Community to cover simultaneous
broadcasting and webcasting of the same broadcaster at the same time,
aka simulcasting. This would cover a broadcaster or cable caster who is
broadcasting over the air also makes the broadcasters available as
webcasts, so that they can be followed at the same moment as the
broadcast. If the transmitter were turned off, the broadcaster would
immediately become a webcaster.

Some say Webcasting deserves analysis and protection, but to be added
later, possibly in an annex or in an independent instrument.

In some years time, possibly we should extend broadcaster protection to
webcasters.

This is the most important question of the whole meeting. We must take
stock of the need for this and the willingness of organizations to
pursue it. There's a clear need and willingness to do a broadcast
treaty. We need to remove the blocking items from the road.

To propose that webcasting be covered in the body of the text would
block the whole project. There'd be no reason for us to come to Geneva
any longer.

What to do? This is like a 1000k block of concrete in the road. If we
grip it and push, will it start moving aside?

This would make life easier for us, and for Webcasting proponents.

This is already in square brackets -- the concrete has been loaded on
the train, which has a head of steam and is ready to go. The engines are
on. We should give a sign to the conductor: please go.

U.S.: I think that this is the first time that I have been compared to a
1000 ton block of concrete in the way of an archaic steam engine. This
is a most interesting comparison. We understand that Alternative E has
not garnered much support. However, many delegations have indicated
that this is a substantive issue. We believe it is important to keep
this alternative in the text. We remain very interested in hearing what
other delegations say to your proposals, Chair.

Chair: You want to keep it in square brackets. If any innovative
proposals come up on this issue, you want us to consider it carefully
it.

Egypt: I might agree with you that it may be a block of 1000k, and we
would like to lend a hand, but this would require the help of the whole
delegation. The statement of the whole African group represents our
position on this issue. We do not find it appropriate to include
webcasting in this treaty. We are therefore in favor of your first
suggestion, Alternative D in Art. 2 and Alternative G in Art. 3.

Russian Federation: To reach a compromise solution we propose a
formulation concerning webcasting. Perhaps we could use a 2-tiered
protection system like you proposed before. We could consider the
possibility of reservation.

Chair: We could consider a two tier or even a three tier approach. The
provision would sound like,

1) the Member States may extend protection to "webcasting"

2) Member states may extend protection to simulcasting by web only

3) Member states may not extend rights to webcasters.

Zambia: I want to support the statement by Egypt on behalf of the
African Group. I am not sure if my big trading partner has been able to
assist you in your plea? Clearly, US, which we have good relations with,
and that everyone else has good relations with, can give us a reason to
smile and walk out at 6PM. Please drop this proposal.

Chair: My African brother, I believe the US delegation is an a listening
mood.

Senegal: Like Zambia, I want to defuse this situation. You should never
waste time with someone who denies the truth and evidence. Webcasting is
a fact of life: concealing it is bad faith. But I would like to say that
we do have to progress. Digital broadcasting is the most important
indicator to give information about universal information. Broadcasts
are creations with producers, artists, etc. When we're in a situation
where there's no favorable environment for the lawful exploitation of
these, we will end up with many concerns about IP. This isn't something
we're overlooking: it's a new area, and we can leave the door ajar,
rather than closing it.

Chair: If you keep your interventions short, the NGOs may have a chance
to make their statements.

Japan: We want to consider Webcasting in a different instrument: not
because it's unimportant but because it requires new deliberation.

Argentina: We should delete Alternative C.

EC: I thought we crafted the simulcasting provision to go outside the
scope of the instrument. We think including simulcasting is a good idea.
We have to address the internet. We're proud of WPPT and WCT. If we fail
to address the internet in this treaty, I think there will be little
reason to call this treaty the WIPO Internet treaty, even though I think
the point of this treaty is to update it to take account of the internet
age. My children talk about downloading and the internet. I tell them
that they should not do that.

I think the digital environment is very vital and we should try to find
a solution, and final solution now. We have come a long way, yet I
realize that we have not solved all the questions. Yet, to postpone this
to an indefinite future when we are already here, when we have the
internet, would be a mistake. I believe we should try to find a solution
among ourselves that does justice to these technological developments.
We have to be innovative and address it in a way that those who think it
goes too far do not have to follow. I think there is merit in the
Russian Federation's suggestion. I think it is a shame that without all
this prepatory work, if we only include cablecasting. We must find an
instrument that would embrace the digital environment.

Brazil: On Article 3, we support alternative G. We cannot agree to
include webcasting in the scope of application of the treaty. Nor can we
accept the inclusion of simulcasting. And we'd like to reserve our
position on paragraph 2 of Article 3, on cablecasting. We are not yet
convinced that it really is necessary to apply the provisions of this
treaty mutatis mutandis to the rights of cablecasting organizations.

On the subject of the future work of this committee, in all other areas
of WIPO our delegation would like to state once again that for us the
priorities for future work, which we believe are important, are
reflected in the proposal on the Development Agenda that was presented
at the last General Assembly by Argentina and Brazil and cosponsored by
12 other developing countries. That means that any proposal on future
work, in whatever subsidiary body, any agreement to us on that proposal
will depend on its compatibility with the goals and principles of the
Development Agenda.

Mexico: We want to include simulcasting, but not webcasting.
Simulcasting is a reality, it's something we have to confront daily, and
it requires action. We repeat that it would not be appropriate to
include webcasting.

Chair: We have come to the end of the work program.

EFF CSC IP Justice IFPA EDRI UPD FILA FIM EBU FIAPF IMMF ?? NAB Japan
AIR ACT CSOC IFPI DIMA

ASBU (Intergovernmental Organization)

Thank you. We welcome your efforts & especially the preparation of the
docs. We had the opprtunity to give our views previously. I'll be brief.
Mention 2-3 points in particular. With great joy we welcomed the concern
expressed by all delgations to achieve something, and to achieve success
after all these years of study and work. The hesitations or reservations
expressed by a number of delegations concerning the lack of balance that
there might be in a forthcoming treaty or agreement, and that might be
unfair to a no. of rights holders in unfounded. On the contrary, we
think that the updating of protection and the improvement of
broadcasting comptaible with tech. developments strengthens the
protection of rightsholders.

As regards the scope of application and webcasting, and whether to
include it -- we believe there is an important difference between the
two subjects. As regards the principles and methods applied, the
protection of broadcasting organisations is linked to compatibility with
technological developments and social developments, whereas webcasting
is connected to technological innovation -- so we believe it's necessary
to separate the two subjects while stressing the importance of the
updating of a schedule on this subject, protection for broadcasting
organisation.

EFF (Mr. Cory Doctorow)

As I take the floor for the first time at this meeting, allow me to
congratulate you on your ongoing chairmanship and vice-chairships, and
express my confidence in the outcomes that we will reach with your
steady, experienced hands at the tiller.

EFF is an international digital consumer rights and advocacy NGO with
over 12,000 paying members and a readership of over 50,000.

I would like to make three brief points on behalf of EFF:

1. That the Webcasting provision is as controversial outside of this
room as it is *inside* this room. EFF today set out a letter signed by
twenty technology organizations that would be affected by the Webcasting
provision, led by Mark Cuban, the founder of Broadcast.com, the owner of
HDNet, the largest high-definition television service in the world, and
the owner of the Dallas Mavericks, an NBA basketball team. Mr Cuban is
also the owner of half a billion dollars' worth of video content. He,
along with 19 other technology executives, has signed onto an open
letter opposing the inclusion of Webcasting in the treaty on the grounds
that unlike broadcasting, where permission-free regimes are rare and
where public-domain, Creative Commons and other non-copyright works are
not often seen, the Web is full of these things, and thus extending
exclusive rights to the Web will generate far more negative effects than
when applied to the comparatively enormous and diverse group of
Webcasters. For those who are interested, this letter is available
outside the assembly room.

2. That TPMs are not coherent with the Development Agenda. TPMs allow
distant rightsholders to override national exceptions and limitations
that reflect national development policy.

They undermine the fair dealing and personal copying exemptions that
educators, researchers and other entities who are sensitive to high
information costs rely upon.

They restrict the ability of national entities to produce compatible
goods and services and tools that extend the utility of information
services that are locally appropriate.

They restrict the ability of the owners of TPM-covered goods to loan,
sell or share their property, a factor that is especially damaging to
regions that rely upon savings arising from these practices.

There is no indication at TPMs are remotely effective at keeping
copyrighted works from being circulated on the Internet -- indeed, the
lead TPM engineers for Microsoft have published an important document
called the "Darknet" paper that predicts that TPMs can *never* serve
this end. And yet, we propose to extend TPMs to new classes of works and
services, to cover works that are in the public domain, are Creative
Commons licensed, and are not copyrightable.

I would like to respectfully call upon the Chair to set aside the
controversial articles 16 and 17.

3. There is a great deal of new material to be aired in this hall. This
forum is not exhausted, and all possible views have NOT been uttered and
heard. There is much new input to be brought here from technology
organizations that will be impacted by the Webcasting provision.
Moreover, there is the vital work remaining of examining this treaty
through the lens of our new Development Agenda and ensuring that it is
coherent with the will of the General Assembly. Therefore, this is NOT
the time to go to regional meetings, but rather to continue to convene
in this body and ensure that all this new intelligence is shared among
all the interested parties.

In conclusion, I would like to inform the Chair and the delegations that
we have made two handouts available on TPMs and Webcasting, which can be
found on the table in the corridor.

Finally, I would like to respectfully ask the chair to build upon the
previous studies undertaken on TPMs and augment them with a new study
that examines TPMs in light of the development agenda.

Civil Society Coalition (CSC, Ms. Michelle Childs):

Thank you Mr. Chairman, As this is our first opportunity to take the
floor, welcome your election.

Three points :

1. We are not convinced there is evidence that broadcasting
organizations face problems with piracy that could not be addressed with
existing treaties

We believe the proposed treaty is designed balanced to create new rights
for broadcasters to exploit works at the expense of copyright owners and
public domain. They say we should rely on them and trust them: that is
not balanced, that is capitulation. We do not agree with that view.

We believe that this treaty should not be extended to the internet. It
is not the purview of one company to ask for special consideration at
this forum.

2. The internet presents the best opportunity ever to provide access to
knowledge for scholars, researchers, scientists etc. Everyone is
empowered by the vast sea of free information that is now available.
This proposal to create new and never-tested rights is for special
interests, who wish to claim rights over works that are currently freely
available.

The treaty cretes a new layer of rights that could be exercised even in
the case the creator does not want it. It is not necessary to create
these rights to disseminate digital works. As we have heard, there are
many technology firms who do not agree with this extension. it is not
the purview of one company to ask this forum for special protection.

3. We would like to ask why these proposals are being pushed forward
when the development agenda has not been in the same way. The treaty is
a threat to the development agenda. The committee needs to reassess its
priorities. There are more pressing issues: why are we just looking at
property rights that restrict access to knowledge, when we should be
looking at proposals that extend access to knowledge?

WIPO has also been asked to examine impact on consumers of innovation.
Yet articles 16 and 17 suggest these measures continued when there has
been no timetable for a review of the effect of TPMs. There have been
continuing problems with TPMs, and we urge the commitee to set out a
clear timetable for a study to look at the effects on consumers of TPM.
and we urge the commitee to set a timetable for a treaty on access to
knowledge.

This treaty is not compatible with the spirit of the Develeopment
Agenda.

Chair: We will continue tomorrow, then go to the limitations and
exceptions, and then to webcasting.

DAY 3

Election of Chair and Vice Chair

Chair: Jukka Leides

19 November, 2004

Notes by:

Thiru Balasubramaniam, thiru@cptech.org, Consumer Project on Technology
[TB]

David Tannenbaum, davidt@public-domain.org, Union for the Public Domain
[DT]

Cory Doctorow, cory@eff.org, Electronic Frontier Foundation [CD]

-- [DT: These notes are spotty, as we were preparing for statements
later in the day.]

IFPA maybe???: [missed]

Consumers seek access to work on any number of distribution systems, so
we support systems that protect any method of distribution.

We call for a separate instrument on webcasting.

IP Justice (Robin Gross):

IP Justice is deeply concerning about WIPO's rush to convene a
Diplomatic Conference...

At its recent General Assembly, WIPO adopted a Development Agenda. There
is concern about IP's impact on education, civil liberties.

Proponents of this treaty have yet to explain why existing regimes fail
to adequately protect signal theft.

We recommend stopping the treaty in toto, but in particular,
anti-circumvention and Webcasting are very bad and dangerous.

With regard to the web, this will create new rights, not harmonize those
that already exist.

Bypassing technological restrictions is necessary for consumers to
exercise their rights, engage in research, and archiving.

At the June SCCR meeting, numerous objections were made to the inclusion
of webcasting in this treaty. The proposed right of retransmission in
Art 6 by any means would give webcasting the power to regulate the
internet.

EDRI: We believe that this treaty should be signal-centric. We have a
number of concerns over the current draft. What is the future of the
public domain under the current treaty? Works that expire today would be
subject to a new broadcast right. This would effectively remove them
from the public domain. The sole source of this material is through
broadcasting organizations. Article 16 is bad because it would give
TPMS. Restrict access to materials in public domain. Article 16 should
be removed from the text as Brazil proposed. Works would no longer fall
out of protection since protection will be extended every time a work is
broadcast. This is exacerbated by Article 16. We support Brazil's
proposal to remove it. There is no rationale for a 50-year term. There's
no evidence that TRIPS's 20 limit has resulted in a reduction of
investment. We support Singapore's proposal.

Union for the Public Domain (Shyamkrishna Balganesh):

[DT: A slightly abbreviated version of this intervention was delivered
in the interest of time.]

The Union for the Public Domain is an international membership
organization that works for the promotion and enhancement of the public
domain in matters concerning patents, copyrights and other forms of
government imposed ownership of knowledge and technology. This is our
second time participating in the work of the Standing Committee and
Copyright and Related rights, and we would like to thank the member
states and secretariat for this opportunity.

The Union for the Public Domain (UPD) continues to believe that the
adoption of the new treaty is not in the interests of society and should
be rejected. The proposed treaty to protect broadcasting organizations
does not go nearly far enough in protecting the interests of society.
Society relies on access to public domain materials for the promotion of
education and the preservation of culture. By granting broadcasters
almost absolute control over their transmissions, the treaty would
curtail access to a broad range of public domain materials that are
accessible only through broadcasts. As more and more vital information
is captured and conveyed in broadcasts in our visual world, it becomes
even more essential to protect the public domain from the monopoly
powers broadcasters seek in this treaty.

Moreover, by creating a new layer of proprietary controls over broadcast
signals, the proposed treaty completely ignores the fact that creative
processes are incremental and depend on access to material within the
public domain. Even those few who don’t have any regard for the
educational and cultural value of the public domain would be making a
mistake to adopt this treaty because it will undermine the vital base of
knowledge and culture that citizens, innovators and artists depend on
for creating progress and innovation.

For these reasons, the proposed treaty stands in direct opposition to
the Development Agenda welcomed by the General Assembly last month. In
specific, the Development Agenda places great emphasis on “access to
information” and “knowledge sharing,” and explicitly warns against the
dangers of adding new layers of copyright protection, which would
obstruct the free flow of information in the digital world. The proposal
to grant new and broad powers to broadcasting organizations ignores
these prerequisites for closing the knowledge gap that separates wealthy
nations from the poor.

Many, if not all, of the objections raised at the last session by
delegates and the Union for the Public Domain are valid today, since
only incremental changes have been made in the latest draft.

For example, Article 14 still fails to specify the limitations and
exceptions with any level of detail. More importantly, it merely permits
countries to include limitations, without specifically requiring them to
do so. Given that the new monopoly privileges given to broadcasters are
couched in mandatory terms and dealt with in great detail, the omission
to do the same for provisions that accord use and access rights to
consumers and the public, evinces a complete lack of regard for the
public interest.

As with the last draft, the public interest will also be threatened by
the failure to include an upper limit on the duration of these monopoly
powers. Since Article 15 provides that the only act necessary for the
commencement of protection under the treaty is transmission, in effect a
broadcaster could indefinitely extend the term of protection by merely
re-broadcasting the same work. We note that such an anomaly is avoided
in traditional copyright and patent law by their insistence on a
requirement of originality or novelty for monopoly rights. These
safeguards are completely absent in this treaty for the protection of
broadcasting organizations.

We would like to voice our deep concern over the continued inclusion of
technology locks in Article 16, and the related digital rights
management provisions in Article 17. We were surprised and sorry to find
that the revised draft of the treaty (barring the explanatory comment)
does not include any reference to the proposal by the delegations of
Brazil and Chile to delete Article 16 altogether. The new Development
Agenda makes express reference to technology locks and flags it as an
issue of ‘great concern’. Many countries, including the United States
are beginning to see the undue restrictions that such measures impose on
the rights of free speech and access to information and most developing
countries have yet to introduce these measures in any form, out of
concern for their effect on freedom of expression. As one of the few
civil society representatives from the developing world, I would, on
behalf of the UPD strongly urge this committee to reconsider its stand
on Article 16 in the interests of information access, critical to
developing countries’ socioeconomic development.

Lastly, we remind delegates that every mistake and error that this
treaty makes will be far more important if the regime is extended to the
Internet -- a publishing platform that is essential for access to
knowledge and development. The webcasting industry representatives do
not really need the provisions of the treaty (every problem they face
can be solved under other treaties and laws), they are simply seeking to
make a political statement that webcasting should be treated the same as
broadcasting, so they can claim a level playing field in their
commercial dealings. Under this logic, every group that competes in some
way with broadcasters will ask for upward harmonization of rights. By
including webcasting in the Treaty, the SCCR would introduce radical and
untested legal protections that will harm the Internet. While the
broadcasting organizations can claim that a new treaty would extend and
expand the existing Rome Convention, there is no such instrument for
Internet transmissions. The webcasters should first demonstrate that
they can gain acceptance for new legal protections in national
legislatures before they are permitted to assert such rights in a treaty
that covers broadcasting organizations.

For all of these reasons, and more, this proposed treaty to protect
broadcast organizations will not protect the public’s access to
knowledge and culture, and the Union for the Public Domain asks
delegates to stand strongly against adoption of this treaty.

[Performers Group]: Maintain balance between rightsholders and
performers.

FIM (musicians): ): We are a cosignatory of a statement, "Joint Position
of Rightsholders..."

[DT: A number of technical challenges to the draft treaty.]

European Broadcasting Union:

What comes to word when the word "balance" is used? Rome allowed three
parties to live together. This treaty protects broadcasters against
pirates and against third parties.

Those who don't want broadcasters to have protection against
circumvention that broadcasters may decide to use want access to the
content. Other treaties deal with content. This treaty only deals with
broadcasters' *signals*.

Finally, a small technical point, as for future steps, the scope of the
definition in Article 6 should correspond to the explanatory comment.

FIAPF: The inventory of rights proposed in consolidated text,

What type of beneficiaries are we dealing with and what is there
function in the audio-visual economy?

The right of distribution

If the rights given to broadcasters encroach upon on the rights of
content owners, this would not be an efficient way to deal with signal
theft.

We are worried about what people are saying today. They want to reduce
the needs of developing countries to access. They have reservoirs of
talent. Only proper protection of the rights of creators and
entrepreneurs can maintain cultural diversity. We need exclusive rights
plus a balance between right holders. We ant adequate TPMS on digital
works.

IMMF:
Intervention by the IMMF on the Revised Consolidated Text for a Treaty
on the Protection of Broadcasting Organisations delivered by David
Stopps on Friday 19 November 2004 at the WIPO SCCR 12 held in Geneva

As with other speakers I would like to warmly congratulate the chair on
his re-election. He certainly has my sympathy for the formidable task he
is facing.

I am here representing the IMMF which stands for the International Music
Managers Forum. We represent the featured artists, performers and
creators, that you hear on the radio and see on your televisions. These
are the creators and performers that represent over 95% of the income
generated in the global music industry.

We are not lobbyists, academics or even lawyers. We are entrepreneurs
who have to deal with copyright and related rights as they affect us in
practice on a daily basis.

We have prepared, along with other NGO's an amended version of the
Revised Consolidated Text. I have just been outside and see that they
have all gone from the table so if anyone has not seen a copy please
contact me and I will send or e-mail a copy to you.

As we know it is some 40 years since the Rome Convention and the
broadcasters now feel the time is right for a further extension of their
rights.

It is some 90 years since radio came in to being and yet still in 2004
performers are being paid nothing in the United States and some other
countries when their performances are broadcast. So the broadcasters,
who represent a multi-million dollar industry, have waited 40 years but
performers have waited 90 years for the most basic global rights. In the
Agreed Statement on Article 15.3 of the WPPT it states that this issue
has been 'LEFT FOR FURTHER RESOLUTION', but here we are 9 years later
and I see no sign of anything happening.

So now to the proposed treaty before us and you will be pleased to know
that I think we have the answer to all your problems.

If we look at the Rome Convention Article 1 we see that it states that:

PROTECTION GRANTED UNDER THIS CONVENTION SHALL LEAVE INTACT AND SHALL IN
NO WAY AFFECT THE PROTECTION OF COPYRIGHT IN LITERARY AND ARTISTIC
WORKS. CONSEQUENTLY NO PROVISION OF THIS CONVENTION MAY BE INTERPRETED
AS PREJUDICING SUCH PROTECTION.

So here we see that the broadcast signal and the underlying content are
considered to be quite separate.

If we then look at the WPPT ART 1.2 we see almost exactly the same
wording. So here again we see a clear distinction between the object of
protection and the underlying content.

Many NGO's and many delegations have made the point that all
broadcasters really need is strong signal protection to prevent piracy.
Even the broadcasting lobby in their paper available on the table
outside entitled '25 Questions and Answers' state on page 6 of that
document:

THIS TREATY IS ABOUT PROTECTING BROADCASTERS RIGHTS IN THEIR SIGNALS
REGARDLESS OF WHAT OR WHOSE CONTENT IS BEING BROADCAST.

So here we see that many NGO's, many delegates and even the broadcasting
lobby want signal protection. So why we ask is this not reflected in the
draft treaty, even though the delegagation of Singapore made such a
suggestion in their official submission last January.

Of course, we need a definition of a 'signal' but this could be easily
achieved by adapting the definition of a signal which is to be found in
the Satellite Convention.

So here is the magic answer:

If we turn to Page 19 of the Revised Consolidated Text Article 1 Item 2
all we need to add is 9 words after the words 'PROTECTION UNDER THIS
TREATY' and these words are 'SHALL BE IN RELATION TO THEIR SIGNAL ONLY
AND'. So Article 1 Item 2 on Page 19 would then read:

PROTECTION GRANTED UNDER THIS TREATY SHALL BE IN RELATION TO THE SIGNAL
ONLY AND SHALL LEAVE INTACT AND SHALL IN NO WAY AFFECT THE PROTECTION OF
COPYRIGHT AND RELATED RIGHTS IN PROGRAM MATERIAL INCORPORATED IN
BROADCASTS.

This is a simple and elegant solution that should satisfy all parties
and I recommend it to this committee.

Thankyou very much.

FIJ: The FIJ has three basic points.

1. We want to exclude webcasting from this treaty.

2. We feel that broadcast rights should only be to protect signal theft

3. We favor Alternative B in (Art 1) and Alternative AA in Article 24
of the Chairman's Consolidated Text.

NAB Japan: Why have we been discussing this for 7 years? We unanimously
agreed to update the rights of broadcasters because we recognize the
need to update in accord with the digital environment. This is why we
did WPT and WCCT. Protection for broadcasters was left behind.

As digital technology has developed signal piracy has been snowballing.
Broadcasters have played the role of indispensable communication. For
instance, during a recent earthquake in Japan, we were the only people
covering. Who else covers sports?

Some claim that the new treaty will jeopardize access to information.
That is absolute nonsense. After the treaty, people will still be able
to access info. Public domain info is accessible through broadcasts.
Without the broadcasters there wouldn't be access. The treaty does not
ever affect content itself because it only aims to protect signals.

Broadcasters could lose their power because of piracy. The very
existence of broadcasters is under challenge now. We can tolerate this
anymore. We cannot afford further delay before moving on to the next
stage. If not now, when?

After long discussion we've had convergence. We must move forward to the
diplomatic conference without hesitation. In must be convened next year.

AIR: Many delegations have warned that the balance between right holders
and the public might be jeopardized by the adoption of this treaty.
This treaty refers to the "Protection of Broadcasting Organization"
which covers the neighboring right to authorize or prohibit their
broadcasts.

There is paramount need to update the Rome Convention in the context of
the digital age. We need international and national legal protection.
We need a fair balance.

In the consolidated text there is no clause that calls for the
appropriation of content. With this treaty we are closing the circle of
international treaties that began in 1996 with the WIPO internet
treaties. This treaty is important for developing countries.

This treaty will consolidate and nurture our creativity. We want a
clause included on technological protection measures.

ACT: the argument that the treaty will block access to public domain is
distinct from the concern that the treaty will block other rights
holders. Broadcasters enhance access to the public domain and make more
material available than would otherwise be the case. A legal framework
to protect them is in public interest. Broadcasters exist to broadcast -
for a commercial broadcaster, the size of an audience is critical; it is
counter-intuitive to argue that broadcasters block public domain access.
The claim is false; take the case of Renoir as a case in point. Most of
his work is in public institutions and has immense public appeal. In
1875, he painted 'Summer' - now in Geneva. In order to display it,
consent of the museum would have been necessary, since they own
copyright in the postcard. What does it mean to say that the work is in
the public domain? It only means that the artist's heirs have no
exclusive right to reproduce the work, except for moral rights. The
museum has the right to control access - it is a public institution to
serve the public and fulfills this function by allowing access free of
charge, but as a condition of entry it restricts photography of the
paintings, since this a source of revenue for the museum. This gives it
the necessary rights to generate revenue. behind the museum stand the
citizens of Geneva, who have an interest in seeing the costs set off by
revenue generation. Similarly, if a program maker is putting together a
program on the artist - the maker is not free to include whatever works
he wants; he will have to negotiate with the holders of copyright in the
paintings. Museums do allow this, but access is never unconditional or
unrestricted. behind this entire process is a process of bringing
different stakeholders into an equilibrium. it is to distort and
misunderstand the treaty to state otherwise.

CISAC:

The rights currently envisaged in the proposed broadcast treaty. are too
far-reaching.

We believe it would be premature to include webcasting in this treaty.

IFPI: We've been in this since the beginning and we like to facilitate
communications with developing countries. The catalog of rights afforded
to broadcasters will have an impact on the rights given to other
rightsholders. Exclusive rights for broadcasters don't in themselves
conflict with other rightsholders'. But in the market, it's different.
This isn't merely principle, it's grounded on real-world concern. In the
case of some broadcasts, casters would be the sole rightsholders and
hence the sole entities entitled to envision a new business model.
Australia, NZ and EU might have broadcasting rights, but it'll be
different on a global basis, because some countries that sign this might
not have signed onto the 1996 treaties. Linking this to the treaties
will solve this. We prefer a "right to prohibit" rather than a "right to
authorize." We support 50 year terms. TPMs are key to this treaty.
Casters and the public will benefit from this. The best TPMs are the
ones not noticed under normal circumstances.

Asian Broadcasters' Union: I speak for casters from the developing
world. Here's an actual case that justifies this: In the Philippines, we
had a FTA that paid a lot of money to air the Olympics. Without their
consent, many establishments cashed in by receiving the sat feed and
adjusting their biz hours in accordance with the games. Some restaurants
set up additional sets. It cannot be denied that the reason for
Communication to the Public in Rome was unjust enrichment like this. A
clear-cut example today is large-screen broadcasts in bars and
beer-tents set up to profit from customers. Is this what we mean by
"balance of rights?" If there is anyone among all stakeholders who want
a balance of rights, it's the casters, who didn't get new rights in WCT
and WPPT. There has been exhaustive discussions and a litany of examples
of actual piracy. Casters have already articulated their case, but the
attempts here will tilt the rights against casters for no good reason --
we want the right to authorize, not just the right to prohibit. We want
50 years, not 20. We want article 16 and TPMs despite the fact that
other rightsholders have similar protection. Under WPPT, other
rightsholders have the right to be remunerated for communication to the
public, so we should too. Private reception and broadcasts won't be
affected. Signal piracy robs us of the motivation to innovate. Without
an updated protection, casters will have difficulty providing a higher
quality of programming and this will cost creative-sector jobs.

Digital Media Assocation: [Pasted in from a transcript provided by DIMA
rep, Seth Greenstein]:

Statement of the Digital Media Association November 19, 2004

On behalf of the Digital Media Association, representing Internet
webcasters, we agree with the United States: webcasting deserves treaty
protection against signal piracy - now.

It has been suggested by many that this treaty should meet the
challenges posed by digital technological developments. To achieve that
goal, the treaty must address the piracy facing all forms of media and
all transmission modes, in a technology-neutral way. A treaty that
merely grants additional rights for modes of transmission known for 50
or 90 years will be obsolete before it is implemented, and would retreat
from the foresight shown by WIPO members in crafting what the European
Union aptly called the "Internet Treaties."

At the June 2003 Informational Session of the SCCR, representatives from
DiMA and Yahoo! explained webcast "streaming" technology and the
extensive business investments required to create and transmit webcast
programming, and the reality of webcast piracy. And, how supporting
lawful, royalty-paying Internet webcasting provides an effective
antidote against unlawful Internet piracy. If you missed it, you can
listen to it any time you want, because WIPO still offers those
presentations on its Internet website, by webcasting.

Last night, I conducted an experiment. I went to an Internet search
engine and looked for the word "webcast" and the names of delegations
that have spoken about webcasting. I found:

Video programs from Chile. Music from Brazil. Music and video from the
Russian Federation. Video news from India. 38 million people enjoyed
webcast streaming of a series of soccer games in China. There have been
audio webcasts of cricket games involving teams from Australia and New
Zealand. In 2001, the first solar eclipse of the new millennium was
webcast live from Zambia.

Some are continuous programming webcasts, others single events. But
remember, the first international webcast in 1995 was a single baseball
game. Yet less than a decade later in the US, according to the leading
broadcast analyst, Arbitron,

*M ore than 50 million people enjoyed Internet webcast streaming each
month
* More than 30 million people in the last week
* The top five Internet webcasters had a combined U.S. listenership
approaching 11 million unique listeners per month. One of these
webcasters comes from the United Kingdom
* More than 50 % of the webcast audience is over 35 years old, and
more than 70 % is 25 or older

Consumers like Internet webcasting because it exposes a wide variety of
music and culture and programming otherwise unavailable by broadcast
radio. The increasing availability of high-speed "broadband" Internet
in Europe, South America and Asia, and the growing number of webcaster
services around the globe, demonstrate that these data are a paradigm of
the trend worldwide: Internet webcasting is a mainstream activity that
substantially contributes to the dissemination of world culture and
entertainment. It is especially important to developing countries. If
webcasting is not your reality today, it will be -- sooner than you
expect. We note the press release distributed yesterday by the Cable
and Satellite Broadcasting Association of Asia (CASBAA) supporting
inclusion of webcasting in the treaty.

The United States has the right answer, but we note with interest the
innovative suggestions of the Russian Federation as interpreted by the
Chairman. Both suggest that the 1000kg block has been mistakenly
characterized as an impeding block of concrete. In fact, we should see
it as a block of marble. Keep webcasting in the draft documents. With a
bit of the creative genius that WIPO celebrates, this body has a
historic opportunity to again pick up the tools of the legal artisan,
and to fashion from this block a worthy successor and counterpart to
the WIPO Internet treaties where WIPO saw the future, embraced it and
helped to unleash the cultural force that the Internet has to offer.

[CD: My fear is exactly this: " a worthy successor and counterpart to
the WIPO Internet treaties where WIPO saw the future" -- in those
treaties, the Internet saw the future and REJECTED it]

FIAP: We acknowledge the concerns of traditional broadcasters and
cablecasters with respect to signal theft. We share the concerns that
these rights do not derogate from content rights. Any new treaty should
be linked with the WPPT and the WCT. We are concerned that some rights
requested by broadcasters will encroach on content.

The two tier approach, "a la carte choice" in Article 9-13, does not
favor available solution. We suggest that Use based on unauthorized
fixations.

We agree that webcasting should not be included in this treaty. We do
not favor a compromise solution proposed by one delegation.

NAB: We have documents from Cancun, documents from Minoa, and the
reports of the first 5 or 6 sessions of this committee, where pretty
much the sole focus was to establish the need for such treaties.

On the issue of balance and a level playing field, we have heard nice
rhetoric. But when you review the proposals, you see there is not
balance, it is imbalance against the broadcasters and in favor of other
neighboring rights holders.

On the issue that the new rights in this treaty will overlap with other
content providers, the distinguished delegation of the U.S. has listed
this as the reason for requiring two tiers, and requiring assent to the
WCT and WPPT. To assuage this we have Paragraphs 5 and 6 of the preamble
which say that we won't compromise the rights of others, and stressing
the rights of performers. In Art. 1 we have provisions saying this
treaty will not prejudice other protections. We have the declarations
from EC and New Zealand that they have for years had the parallel system
of rights proposed here, and that no problems have been created.
According to Latin American experts at least 10 countries there have the
right of reproduction. So when IP Justice says the rights proposed here
exist no where they are either misinformed or uninformed.

[TB: In response, Robin Gross from IP Justice commented that the IP
Justice intervention specifically noted that "anti-circumvention
provisions for broadcasters and webcasting rights do not exist in
national laws." After this intervention, one delegate took a copy of
the IP Justice statement to the representative from NAB and noted that
he made an incorrect assertion on IP Justice's statement.]

On the issue of protection I find it bemusing that the countries that
have proposed 20 years provide at least 50 years (Singapore, Chile,
Brazil).

On TPM's, Senegal has it exactly right that it makes no sense to create
the vital organs of these rights and then leave them unprotected. If no
TPM is included in the broadcast treaty but you have it in the WPPT or
WCT, what does it tell the rest of the world? It tells them it's
important that other have protection, but there is no need for
broadcasters to have protection. That, I submit is a very wrong message
to send, and it would be very detrimental to content holders in that it
would remove a level of protection that would protect them.

[CD: No, it tells them that we've discovered in the past ten years that
TPMs don't work]

To me the very crazy notion that broadcaster who depend on their
livelihood would somehow want to inhibit public access.

In my 13 years, the work of the last three days has been incredible. We
submit that this committee has accomplished its committee. This
committee used to be referred to as the committee of experts. Its role
used to be to apply its expertise to the facts. We have done this. The
next step is negotiation and diplomacy, what they call a "Diplomatic
Conference." We are ready to move forward and ready to compromise.

FIART: Does it help creators in developing countries to not give them
effective protection? It is very desirable for broadcasters to fight
against piracy of signals. That's why I'm astounded people are calling
for the deletion of Art. 16. Paying channels can't work unless they can
eliminate piracy. I think if we deleted Article 16, it would make the
text totally useless.

Regarding Article 24, seems odd to join this without people joining WPT
and WCCT. It's putting the card before the horse.

I notice the reluctance of many delegations on this issue. France
Telecom put their telecast on a pirate site. We must do something to
combat piracy. In schools there is racketing, rape but I don't think we
should put everyone in jail for piracy

NABA: [some missed]

A treaty without TPMs would be empty words. Digital technology cannot be
overlooked. The interests of governments differ, but digital technology
crosses all borders.

If we do not take a step for a diplomatic conference and the treaty I
think people would lose interest in the treaty.

UHRNA: [missed]

JIARD: We think simulcasting should be included. What we are trying to
avoid is piracy.

Chair: We have come to the end of substantive interventions on issues
related to broadcasting. We shall revisit some aspects of Agenda Item 4
later. We should continue the debate on the Chair proposal.

We will include Limitations and Exceptions on the agenda for the next
SCCR meeting.

[DT: This is huge. Finally, a discussion on protecting users' rights.]

[Brief discussion on TPMs, in which Brazil suggested that it would be
more expedient to have an inter-sessional meeting in Geneva rather than
regional consultations.]

--

Break

--

[India is given the floor after the meeting]

India: After hearing the Brazilian delegation, we realized there was
considerable merit in holding meetings where we can iron out
differences before coming on to a diplomatic conference. We think that
the idea of inter-sessional open-ended consultations will help us narrow
the differences that exist and obviate the need for regional
consultations. If there's one thing that's emerged is that within
regions there's a remarkable degree of homogeneity, so therefore
regional consultations would be quite unnecessary.

Chair: Conclusion now. We're going to talk about the Broadcast Treaty
and Limitations and Exceptions. Other announcements are permitted.

My overall assessment:

The Committee made considerable progress and reduced the substantial
differences in the consolidated text. No final concessions on concrete
points were made. Delegations want to maintain their positions for the
next stage of the work. No progress will be made until the next phase
starts.

Concrete examples of progress are as follows:

There is support for a new version of the consolidated text: Items in
square brackets will not be retained in the next version (i.e. provision
on webcasting and square brackets concerning TPMs)

Rights on acts that follow fixation: we considered a two-tier model,
which received growing expression of interest. A new alternative will be
added to the text.

The remaining single paragraph of Art. 16 will be included along with an
alternative that no such provision will be included in the final
version.

Regarding becoming a party to the treaty, the alternative that requires
joining WCT/WPPT will be put in square brackets.

Delegations' attentions will be drawn to the need for further
streamlining of the retransmission rights. (talking about alternative T)

Less than 50 years' term alternative received support and will be
maintained in the text.

In order to make further progress and in light of the request of the
General Assembly:

[Powerpoint slides:

1. Documents to be prepared:

* A second revised version of the Consolidated Text will be prepared by
the chairman of the present session of the standing committee;

* A working paper on alternative non-mandatory solutions on the
protection of webcasting organizations including simulcasting
organizations will be prepared to accompany the second revised version

2. Regional consultations

* Regional consultation meetings will be organized by the International
Bureau, as requested by the member states.

3. 13th session

* The next session of the committee will take into account the progress
made in the regional meetings.

* The committee will, in light of the results of regional consultations
consider the second version of the Consolidated Text and examine the
working paper on alternative solutions on the protection of webcasting
organizations;

[TB: Who requested regional meetings?]

B. EXCEPTIONS AND LIMITATIONS TO COPYRIGHT AND RELATED RIGHTS

* Agenda on exceptions and limitations for libraries and disabled
persons will be placed on the agenda of the Thirteenth Session]

[CD: What about education??]

Brazil: We're willing to engage in this discussion on these conclusions,
but we would like a written copy. I think this is the standard procedure
we follow when we discuss your conclusions. It would help us a lot to
see this in written form in a printed format so that we could work on it
as we discuss your suggested language.

Chair: We do have a written version of the set of conclusions now shown
by using the technical equipment available in the room [Powerpoint] in
order to serve all language groups I could read this text again slowly
to make this text perfectly accessible to everybody. This is a set of
simple, soft, flexible conclusions and there should be no difficulty in
following the content of the different elements.

India: Before the lunch break I pushed you more for the floor more than
I normally would. The reason was that I had a dental appointment. I
realize my ideas may not have been clearly conveyed because my speech
may not have been clear. I hope my speech is a little clearer now. What
I was suggesting was that Brazil's suggestions for open consultations
inter-sessionally were an eminently sensible idea. I would have thought
that given the open ended consultations are wider in scope and the fact
that the differences that emerged in this meeting were essentially
differences across regions, it would be more beneficial to have an
inter-sessional meeting which is precisely what we are now engaged in.
Some meeting like this that brings regions together in inter-sessional
consultations. But I see that none of that has been reflected. And since
we believe our conclusions are those of the committee rather than the
conclusions of the chair, we would request you to show some indication
that our contribution has not been entirely dismissed out of hand. Thank
you.

Chair: Whups, yup, we got that proposal. I can't give you the proper
reaction to this now. Let's hear from the other delegates and then we'll
ask the international bureau and the secretariat to weigh in. I would
not expect there to be consensus given yesterday's discussions. I tried
to make this streamlined so those who have flights can catch them.

India: Thanks -- those are indeed your conclusions but for them to be
actionable means that they have to be accepted by the committee. Before
we discuss these, I think my delegation has to sign on. If there's a
conclusion from the chair without a requirement from the committee to
sign on, then how can the secretariat do anything? I think it's the
committee, not the chair, that is entitled to move us to action.

Chair: We will listen to the comments of the other delegations and they
will be presented in the report, and we will then see whether these can
be actionable.

Egypt, Speaking for African Group. The African Group thinks that
Brazil's proposal is worth consideration.

European Community: India made me painfully aware that I, too, need to
go to the dentist's, soon. I don't want to talk about regional
consultations, because we have these in Europe in the form of meetings
in the Council Working Group. I'm puzzled, though, by how my messages in
the past few days have been perceived. EU believes that Simulcasting is
an option that should remain in the text, and Webcasting should also
remain in the text. The working paper should deal with other
possibilities to address this issue. I'm not talking about "Webcasting
Organizations" or "Simulcasting Organizations," as we should clarify
what these terms make. Can you clarify this, please? Also, PowerPoint
slides are good. Ú

Zambia: My first point is that my delegation will be the first to
support whatever my coordinator says because I am part of the African
group. But also, where we don't agree or we have not discussed an issue
as an African group, I am put in a corner. My understanding of my
coordinator's statement about Brazil's proposal is that it is the
Egyptian position and not an African group position. I am sorry to say
this, but I want to be honest.

My second point is that we have made a lot of progress. As far as my
delegation is concerned, we believe it has been difficult for the
Chairman to please everyone. Yesterday I suggested the U.S. drop its
webcasting proposal so we can have consensus. They did not. Someone else
brought a compromise that has brought us to where we are. I support the
Chairman and hope we can proceed accordingly. I don't have time to go
through each point, but this is the summary of our position.

Senegal: I would like to thank the Secretariat for all the facilities
they've provided for us. I would like to thank you first of all for your
skills and your spirit of consensus. You have guided our discussions
very skillfully. On behalf of my delegation I would like to endorse the
conclusions you have put to us. I support wholeheartedly the idea of
consultations. The request for these consultations requested by Morocco
and endorsed by Togo is again topical because we believe that if we hold
these inter-sessional consultations we will succeed in overcoming the
difficulties easily and we will be in a position to go ahead to a
diplomatic conference.

Algeria: I would like to thank the Russian Federation for their proposal
to protect broadcasting organizations on the web within a non-mandatory
protocol which would guarantee a 3-tier protection. We believe that this
proposal will help us arrive on consensus. My delegation supports this
proposal. We have made great progress but there is still a great deal of
work, and I think this will be done in a series of consultation meetings
at a regional level, as proposed by a number of delegations, including
Morocco, Togo, Senegal.

Brazil: Thank you Mr. Chairman for your efforts to summarize our
discussions this week. We want to get back to something that the
distinguished delegate from India said. Clearly any decisions on future
work with respect to this process must be accepted by this Committee.
We have been proceeding under the assumption that this is a Member
driven, not a Secretariat or Chair driven process.

We concur with some of the delegations who spoke earlier, that they seem
to constitute an honest effort to capture some of the ideas in our
discussions, but they leave out some very elements that were brought up
in the context of our debate. My delegation in fact made a specific
suggestion regarding future work that we honestly offered as a
constructive suggestion which we thought could seriously help enable
this committee to make progress in discussions. That suggestion has
received support from some of the members present in this room. You have
chosen not to reflect this in the conclusions you are making, these
proposed draft conclusions for reasons that frankly we fail to
understand.

The language you have suggested for regional consultations is frankly
accurate because what it seems to suggest is that the members of the
committee have agreed to convene these regional consultation meetings.
In fact that hasn't happened. We understand that some members of the
committee have raised this point in the course of the debate, and we
respect and take full note of that suggestion. However, we feel that the
appropriate way to proceed would be along the ways of the suggestions we
have made. The fact is that we have had not time to discuss any of these
suggestions, including the one on regional consultations.

We would like to point out to you that this idea was in fact discussed
in the last meeting of the standing committee when we negotiated, in a
member driven way, the language of the recommendations that were
forwarded to the general assembly on this important matter. This
recommendations did include references on the matter of regional
consultations. I would like to read the text:

"Depending on the decision of the WIPO General Assembly under point a 1
above the decisions to convene or not to convene, and the
recommendations of the standing committee, the international bureau
shall organize regional consultations meetings where appropriate and at
the request of the relevant regional groups.:

We would like to point out that no regional group has lodged such a
request in the course of this meeting. No regional group that I am aware
of has supported this proposal or raised a formal request for the
holding of such regional consultations.

If there is an interest on the part of any region to have a regional
consultation meeting we would not stand in the way of that. But in the
course of the discussions we have had today no regional group has made
that proposal and no group hap has requested a meeting. The group my
country belongs to has certainly not asked for a regional consultations
meeting. I ask that we stand by the decisions this committee has taken
in the past. We believe it is late but we may still have time to have
consultations on these issues and would be willing to have constructive
conversations on those issues.

It would be hard put for us to agree to a set of conclusions that does
not reflect any kind of agreement that might have been arrived at
between any members of this committee.

Chair: I set earlier that these conclusions were simple. I don't
understand how the regional consultations that have previously proved so
useful, why it would be so difficult to consider regional consultations
this time. So this element is in the set of conclusions.

[CD: In other words: "Tough."]

Morocco: My delegation approves all delegations that support the
proposal at the beginning of this meeting concerning the organization of
regional consultations in order to discuss the items still in abeyance.
Because here we share your view, we believe we have made considerable
progress. We still have work to do, but not very much, and through these
consultations we'll be able to achieve a solution if everybody sincerely
approaches these consultations and makes an effort to understand all the
issues. There are of course divergences in abeyance and this is a good
reason to hold regional consultations.

Morocco tends toward the liberalization of all satellite transmissions.
We approve regional consultations for the creation of new broadcasting
bodies which will contribute to the organization of better and more
modern levels of protection.

Syria: We agree with your proposal to convene regional consultations
with a view to convening a Diplomatic Conference. We want the regional
consultations to focus on Article 16 and also on limitations and
exceptions.

Colombia: We appreciate your efforts. Re document on webcasting -- we
have to take into account that article three has three objectives:
traditional broadcasters, cablecasters and webcasters. When you say that
this is an alternative proposal, we could also include simulcasting
here. It's a special case, but it's independent. They do it either by
wire or wireless and to talk about "web" in this connection would be an
additional situation, another layer to be added to traditional
broadcasting.

As regards the convening of regional consultations, we've always
proceeded in this way in WIPO, prior to any diplomatic conference there
are regional consultations dealing with a given item.

Regarding Brazil's comments, I take it that the venue will be Geneva,
especially given the financial situation of the organization. We need to
take into account the points made by India. This aren't discussions
within a region, but from one region to another. This is similar to the
situation in 2000, with the audiovisual performances treaty. The
divergences are not within regions, but among regions.

Uruguay: We appreciate your efforts. Generally speaking, Uruguay can
support these conclusions even though they do not fully satisfy us. We
should not lose the momentum and we should go on to the future stage
We support a second version of the consolidated text. We are amenable
to alternative non-mandatory solutions on webcasting but this must be
done at a later stage.

We are flexible on the subject of regional consultations. Whether or not
they are regional, we think the proposal of an ad hoc inter-sessional
meeting is really something that's very positive and I think it would be
worthwhile to have an inter-sessional meeting because we're convinced
that a further meeting of the committee even if it is inter-sessional or
informal will make the process more dynamic.

Mexico: We appreciate your work. We have enough consensus to continue.
Bear in mind that we've already spent 12 sessions on a matter recognized
as important by many countries, on updating rights already addressed by
rome. We're talking about broadcasting organizations that provide
knowledge and culture to our people.

Mexico considers that the time is ripe for regional conferences, and
possible for the holding of a diplomatic conference.

Norway: We can support this constructive proposal by the chairman. We
want to remain flexible in addressing this issue. Regarding the issue of
exceptions and limitations we can fully support continued international
discussion in this committee.

Argentina: What is the relevance on having conclusions since we are
discussing future work? This is a negotiating process between Members
not between Members and the Secretariat.

I think this position was set out in the Development Agenda set out by
Argentina and many of the other delegations. So we do not believe this
kind of procedure is really most appropriate.

Regarding the text, it was clear from our discussions so far that we
would keep 98% of the alternatives in the text. What we find surprising
is that for one of the alternatives that got majority support you are
proposing a different solution. Alternative V which was proposed by
Argentina, it's the only alternative that would be removed from the
text. Argentina does not withdraw its proposal on Article 16. We would
like to see this alternative in the next text.

On a working paper, which would be prepared and which would accompany
the second version, we're not clear about the nature of that document.
What would it mean to say that it would be prepared to accompany the
second version. I think it's very obvious that there is great opposition
to this subject. It's not necessary to have a second treaty or protocol
on webcasting. There has been no mandate or discussion of a different
instrument specifically on that subject.

There were proposals here to include an alternative two-tier protection.
This was what the EU said in its proposal today and there may also be
another alternative with this 2-tier solution. I don't know if this
would solve the problem, but if we have a working paper it should be
asked for by the members. It should be discussed by the members in depth
and there should be a request to the secretariat for the document.

We support Brazil on the regional conferences issue. There should be
regional meetings if they are requested, we have no objection to that.
But we think an inter-sessional meeting of the committee might help us
make more progress or discuss in more depth.

In the last few sessions all we've done is look at various alternatives.
Our delegation hasn't had an opportunity speak on Art. 4 but it doesn't
mean that what isn't in square brackets has consensus. We don't know the
state of things not in square brackets because we haven't discussed
them.

USA: Thank you Mr. Chairman. It is with regret that I find it
dismaying that the proposal has been made to take webcasting and
simulcasting off the consolidated text and put in some "other document."
We found the proposal by the Russian Federation of a multi-tiered
solution interesting. We've discussed these issues before, had
educational sessions on the topic. The proper way is to leave webcasting
in the text. It is, we believe, an important issue for the 21st century
and we continue not to want to see it left behind.

Russian Federation: Re the drafting of these recommendations. It's
better to speak of the second document as a working document, containing
an alternative solution to the problem of Webcasting and Simulcasting.
The broader wording would make a better doc.

Iran: We think an inter-sessional meeting is a better way of engaging
all delegations. There should be a consensus on the work of the
committee. We support the statements of Egypt, India and Brazil.

Zambia: We are all the same members that have held previous meetings
before, at the general assembly and with other portfolios. In other
venues, we've adopted/supported the proposals of others when we'd
initially said we wouldn't support them. You can't win all the time.
Today you propose and your colleagues say yes, but they expect you to
say yes to them, to die a little and give in, remembering that they
supported you. Hey you other delegates, support regional meetings. We've
held our noses and swallowed much more bitter compromises.

Chile: We want a rewording of the text on regional consultations and
include language on an inter-sessional working group considering that
this will be more open.

China: In general the Chinese delegation supports the Chairman's
suggestions. We have a small suggestion. If it is possible, we suggest
that consideration be made on the part of WIPO to include the experts
from governments from developing and developed countries to exchange
questions so that developing country experts could learn more about
webcasting so that they can find out why they want webcasting in. We
want to emphasize that these experts be from governments This will
enhance our mutual understanding and it will be useful in preparing the
second version of the consolidated text.

Canada: We will refrain from commenting right now.

El Salvador: We agree with the statement made by Uruguay. As other
members have mentioned, there are some areas where we are concerned,
however we think we should make progress on the definitions in the
treaty.

Serbia: Speaking in my national capacity, not as leader of the group. We
support your conclusions as a whole as a compromise. Regarding your
suggestions on slide "3. Thirteenth.." We should be careful in our
suggestions to the secretariat given the financial considerations we
have discussed.

Honduras: This is my first time taking the floor, thank you Mr.
Chairman. We support the proposal to have an inter-sessional meeting
rather than a regional meeting, given the financial issues.

We support the Chilean proposal.

Colombia: I think you misunderstood me as regards regional meetings. Of
course we support regional meetings and I think we have presented a
number of comments and remarks and precisely to imply the recommendation
we formulated in June of last year concerning the venues of the regional
meetings. But we did not object to that at all.

Togo: I would like to thank you for your very relevant conclusions
which you have drawn after our 3 days work. I would like to note that
the General Assemblies instructed the SCCR to accelerate its work. This
was the guiding concern of the African Group. We support the regional
consultations with a view to convening the Diplomatic Conference.

Rita Hayes (Deputy Director General of WIPO): There is a precedent for
regional consultations and it seems to be a good way of discussing the
issues. In response to the distinguished delegate of Colombia, we will
of course look into the financial aspects and the scheduling conflicts.
We might ask the Chair if he could add to conclusions that there be
other types of consultations. It was the request of many many
delegations to have these regional consultations.

[TB: The word "inter-sessional" was not directly mentioned in the
intervention by the Deputy Director General]

Chair: I suggest, changing the heading to "Regional and other informal
consultations." And add, "regional consultation meetings and other types
of informal consultation meetings."

Brazil: The suggestions you are adding, following the suggestion of the
rep of the secretariat could be useful, but we don't think the language
captures the sentiment manifesting itself in the course of discussions
on future work. Mr. Chairman, we did not hear many many many members
support regional meetings. We heard several members, but similar a
number a of countries have pointed out that they would prefer a
different kind of consultation. As a committee we must decide on what
the follow-up process of our work should be. I think I'll let you finish
talking to the secretariat if that's OK with you. Mr. Chairman, as I was
saying I don't think it should be so difficult for us to find a way
forward given the goodwill in this room.

Mr. Chairman we want to make clear again as we have before that if a
specific region wishes to have a consultation and wishes to convey that
request as a group to the request, Brazil certainly would not stand in
the way of that region. But the fact of the matter is that we have yet
to hear a regional group make such a request in this meeting. If that
did happen, we would not stand in the way.

In adopting a decision this afternoon, we must stand by the principles
that we have agreed to in past meetings of the standing committee in
discussing the preparations. Clearly in the last meeting we said the
regional meetings would happen where appropriate at the request of
regional groups. We insist that this process remain member-driven.

Chair: I would ask all of you to be patient and understand we need to
come to a speedy conclusion. We are running out of meeting time.

[DT: 5:04pm]

The wording I added was indeed intended to cope with all proposals made
here, including your proposal.

I should maybe turn to the legal counsel of the house and see if sees
any problems in proceeding in this way.

Legal counsel: [laughter] Mr. Chairman I think it depends on what the
committee wants to adopt. My understanding is that you are providing a
summary of the conclusions as you see them. THese are the chair's
conclusions and the delegates have been invited to comment on them. This
is not precedent setting, this is the standard practice in most of the
committee meetings these days, especially for meetings that are less
than a week. If the committee doesn't want to adopt these as the
committee's conclusions they can be adopted as the chair's conclusions
on the committee's work.

India: Some of what I want to say has already been said by the
representative of the Brazil. Namely that we should hold regional
consultations where such consultations have been requested by the
regional groups and we certainly think that's the basis on which we
should proceed. And to that end modify the language that you have on the
screen:

"Regional consultation meetings, based on requests by regional groups,
followed by an open inter-sessional intergovernmental consultation of
the committee will be organized by the International Bureau as requested
by the member states."

Chair: Thank you very much India for your suggestion. Now it seems that
the meeting starts again. Now we may have an endless discussion on
details.

Do we have consensus or not? If not we will have conclusions by the
chairman in the report.

I don't think we can now exactly define the form and order of business
in organizing the consultations. Negotiations between the secretariat
and possible host countries has to continue, discussion on possible
inter-sessional meeting in Geneva has to continue.

[CD: Brazil sticks its sign in the air, waits to be recognized by the
chair]

Brazil: Referring back to the comment legal counsel made on our
deliberations. You are asking us to agree to conclusions with which we
have not agreed to.

We are surprised that you seem unwilling to allow us to agree on
something which we seek to agree, rather than agreeing on a conclusion
which you already know the committee does not agree on.

The problem with your proposal is simple. It is up to the committee to
decide on the follow-up process. You're asking us not to agree, and to
leave it to the secretariat to decide what should be done. We have
repeated that this is a member driven process, and we insist that it
remain member driven.

Serbia-Montenegro: Rule 14(1) of WIPO says that any delegation may raise
a point of order, and may not speak on the substance. So if you make a
point of order I think the delegation should refrain from speaking on
the subtance.

Zambia: Mr. Chairman I apologize, we should be making a conclusion. But
Mr. Chairman I raised the flag to try and see how much more this
delegation can contribute to the debate, and I more or less repeat the
same point I had made. We should not set a trend which will be difficult
to reverse in the future.

Compromise is very important. If I agree to support you, at least look
at me and support me. There seems to be a trend where one or two
delegations are saying that there should be no regional consultations.
Why is this such a do or die affair? We can make progress on regional
consultations. This is deliberate, this is unnecessary. For you to force
me to speak like this is unnecessary, I have never spoken like this
before. I refuse to jump on the bandwagon because I'm small. Let's look
at the reason. Surely if we have agendas the regional consultations will
not spoil those agendas. This is not necesasry but we have been driven
to speak like this. I am so sorry. When you quote the decision which we
made youare quoting it as cast in stone. We are being rigid. Several
African countries have suggested a regional meeting. Do you just want
the coordinator of Africa group to say that yes, we have suggested. So
many Africans have suggested. We are a region. This is not fair. I'm
sorry. Thank you Mr. Chairman.

Chair: I give the floor to everyone who is asking the floor we will run
clearly over time. So we should admit at this stage, especially after
the intervention by Brazil, that it is not proposal to have any
conclusions to the meeting that would enjoy full support as to every
detail by everyone in this room. That is the atmosphere now and that was
the atmosphere yesterday. That is why now I would like to make it clear
that the conclusions as presented and amended as I suggested add
flexibility. Flexibility is the principle of the day.

This will be under my responsibility. I would invite you to accept that
we should come to the end of this debate.

India (point of order): This is quite precisely a point of order. The
reason why it is a point of order, as we were were reminded the delegate
ofSerbia. [DT: lights turned up] Personally I thought that was very
unhelpful because the spirit of WIPO is not rigid, hidebound.
Flexibility is the order of the day, not recourse to the rulebook.
Because if we did take recourse to the rulebook we wouldn't have been
able to elect the chair. Because the rule says that the chair should not
be elected back-to-back, but we have done it in the interest of
flexibility. I try not to go by the rulebook because I think what we
know is important is the spirit behind the rule, which is that we should
advance our work. Since the rep of Serbia pointed out the rule, I do
recall a rule that the chair should not be elected back-to-back. So is
she going to say that we have overstepped the authority we have in
electing you as the chair? Thank you.

Chair: Thank you for your point. Legal counsel.

Legal counsel: India's reference to the rule is correct, but this
committee did decide to derogage from procedure and not stick to the
rule that there should not be a repeat chair.

India: I do not recall this proposal being put to the Committee. I seem
to have missed when this special derogation was discussed.

Legal Counsel: Just for information to the distinguished delegate of
India this was at the 3rd session of the committee where we adopted a
special rule of procedure.

India: But that does not bind subsequent sessions of the committee. Each
session of the committee is the master of its own rules.

Secretariat (Jorgen Blomqvist): If I may inform the distinguished
delegate of India, the secretariat noticed that in the two previous
sessions the chairman had been elected back-to-back. That was seen as a
de facto departure, so special rules of procedure for this committee
only were established.

India: Mr. Chairman I don't believve this satisfactorily addresses this
question. Just as we don't like to have intergenerational tying down of
populations, we don't like one committee session tying down another
committee session. Unless the rules of procedure themselves are changed.
Given that there is turnover, that human memory is perforce limited,
that where we depart from the rules of procedure these should
specifically be brought to the attention of the committee each time.
Given that we don't think the 3rd session of the committee can tie down
future sessions of the committee, which is the master of its own rules.

[lights come on brighter]

Chair: I think this week's session shows there is great flexibility but
there are difficulties in arrivng at the joint conclusions. I ask for
the last time that the debate not continue. I ask simply that you
indicate whether you cannot join, and we will have only in the report
the conclusions of the chair.

Brazil: This is a point of order, since people have been referring to
the rulebooks. We understand there are rules governing the general
powers of the chair, and we're not aware that anywhere in the rules does
it say that the chairman has the power to impose decisions on the
committee. We would like the report to say that your conclusions are not
endorsed by the committee and does not bind the committee.

India: We need to still resolve the point that we raised. If we are
working on the basis of consensus, it doesn't matter whether the chair
has been elected according to the rules or not. But when we are going to
depart from consensus, when an individual is going to give his personal
views, then all these questions again resurface. Consensus is a
beautiful thing. It sort of smoothes over a lot of rough edges. But
absent that consensus they again raise their ugly heads. We have to bear
in mind that there is no consensus. And for the rep from Finland to say
and for WIPO to accept that these are the conclusions of the cahir and
not the committee gives a special weight to the conclusion of the
delegate to the conclusion of perhaps to one hundred and forty delegates
in this room.

Chair: As a way to measure the prevailing position in the committee, I
invite those who would not be able to join the conclusions to give a
show of hands. Five [Iran, Brazil, Egypt, India, Argentina]. Shall we
continue this discussion? Who might be able to join the conclusions?
[large show of hands] When the modern democracy was born, it was said
that peole have a say. In many cases it is the majority whose opinion
has to be respected. That is democracy. [applause, including
broadcasters in the back row]

[TB: The United States did not raise their placard]

The debate is closed. The conclusions and observations of the chair are
going to be taken to the report. Now ladies and gentlemen there has to
be a specific procedure for the adoption of the report. There have been
1 or 2 cases where the report has been distributed a few weeks [missed].
I apologize for all the bad will that this debate may have caused. I
deeply regret it because the willingness to deal with the substance has
been so promising. The difficulties in finding the procedure in how to
come forward was difficult.

Are there any other announcements by the Secretariat?

The session of the 12th session is now closed. [gavel] Thank you very
much.

By davidt at 18/11/2004 - 05:15 | Broadcasting | WIPO