UPD Intervention at SCCR 12

Delivered by Shyamkrishna Balganesh on November 19, 2004.

[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 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.

By davidt at 19/11/2004 - 13:52 | Broadcasting | WIPO