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At WIPO, Study On Copyright Exceptions Stimulates Broad Discussion With Author
https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-18-2014-wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author
<b>During the recent meeting of the World Intellectual Property Organization copyright committee, a study was presented on exceptions and limitations to copyright for libraries and archives at the national level. The presentation spurred a full day of discussion about how to ensure libraries can continue to provide an indispensable service, and a substantive exchange with the author. </b>
<p style="text-align: justify; ">The article by Catherine Saez was <a class="external-link" href="http://www.ip-watch.org/2014/12/18/wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author/">published in Intellectual Property Watch</a> on December 18, 2014</p>
<hr />
<p style="text-align: justify; "><a href="http://www.wipo.int/meetings/en/details.jsp?meeting_id=32094">The 29th session</a> of the Standing Committee on Copyright and Related Rights (SCCR) took place from 8-12 December.</p>
<p style="text-align: justify; ">On 10 December, Kenneth Crews, former director of the copyright advisory office at Columbia University and now in the private sector, presented <a href="http://www.wipo.int/edocs/mdocs/copyright/en/sccr_29/sccr_29_3.pdf">an update</a> [pdf] of his 2008 WIPO-commissioned study on Copyright Limitations and Exceptions for Libraries and Archives (<a href="http://www.ip-watch.org/2014/12/12/copyright-exceptions-for-libraries-wipo-should-step-up-before-someone-else-does-researcher-says/"><i>IPW</i>, WIPO, 12 December 2014</a>).</p>
<p style="text-align: justify; ">The study provided safe ground for broad discussions on the sensitive issue of exceptions and limitations, and the role of WIPO in the issue, with a large number of countries taking the floor to offer comments on the study and its findings, providing specific details on their own legislation and/or asking questions.</p>
<p style="text-align: justify; "><b>Harmonisation</b></p>
<p style="text-align: justify; ">Mexico, for example, asked whether there was a general movement leading to a harmonisation exercise in international copyright law.</p>
<p style="text-align: justify; ">Crews answered there was no movement toward an era of harmonisation, but harmonisation could be an answer in the field of limitations and exceptions if it left sufficient policy space to countries.</p>
<p style="text-align: justify; ">On the one hand, he said, “there is virtue in harmonisation, in allowing for the predictability of the law … as your business activities move from one country to another.” It makes the law easier to understand, and easier to address some of the issues of cross-border exchange..,” he said.</p>
<p style="text-align: justify; ">But the major disadvantage of harmonisation would be the loss of opportunity for countries to “experiment, test new ideas in lawmaking, and to move in some new directions,” he added.</p>
<p style="text-align: justify; ">Maybe the answer lies in the middle, said Crews: harmonise the law to a certain extent, “and then leave some of the details to individual countries.”</p>
<p style="text-align: justify; ">The European Union delegate remarked that even in an integrated legal system such as the EU, very few exceptions to copyright are mandatory for EU members. Member states “remain free to implement most of the exceptions in the EU legislation in their national systems,” he said.</p>
<p style="text-align: justify; "><b>Implementation Issues</b></p>
<p style="text-align: justify; ">Tunisia stressed the issue of the implementation of copyright exceptions and limitations in developing countries, particularly for libraries. Libraries often are “fearful of the complications,” referring to the exceptions and limitations legislation, and simply do not use it, preferring “what is possible and available,” he said</p>
<p style="text-align: justify; ">Crews said it is important to find “the right formula” for drafting a statute that is detailed enough that users are law-abiding citizens, “and at the same time not be so complicated in the structure of the law that it is difficult or impractical for most – even trained professionals – to follow.”</p>
<p style="text-align: justify; "><b>Cross-Border Exchange, TPMs</b></p>
<p style="text-align: justify; ">Brazil said the study sheds light on certain areas where further cooperation would be welcome. The Brazilian delegate said this cooperation could take into account the dynamic evolution of digital technologies and the “growing cross-border cooperation among libraries and archives.”</p>
<p style="text-align: justify; ">The delegate said some factors pose concrete problems for cross-border cooperation, such as the fact that some 33 WIPO members do not provide exceptions for libraries, and a higher number of countries do not provide exceptions and limitations that “could be deemed adequate” to address the new challenges created by the digital environment, and limitations and exceptions provided by national legislation vary deeply from country to country.</p>
<p style="text-align: justify; ">Now that the research has started with the 2008 report has been updated, we can see that from the universe of the WIPO membership 33 countries still do not provide limitations and exceptions for libraries and archives in their national legislation. A even greater number of WIPO members do not seem to provide limitations and exceptions that could be deemed adequate in order to address the new challenges libraries and archives increasingly face with the emergence of the digital environment</p>
<p style="text-align: justify; ">He also said the study states that technological protection measures (TPM) can have a negative impact on countries’ ability to “legitimately implement exceptions and limitations,” which is a “growing concern as countries seek to better regulate and avoid abuses in the use of TPMs.”</p>
<p style="text-align: justify; ">Crews said the issue of cross-border activity and the difficulty in cooperation between countries induced by the difference in laws is perhaps one of the most important that WIPO could address. Part of the solution to that problem might be a trusted third party facilitating the transfer of copyrighted works, he said. A sharing of resources should be allowed while protecting the interest of right-holders, he said, “so that they can participate in this and encourage this activity as well.”</p>
<p style="text-align: justify; ">Many developing countries keep insisting that the major issue for libraries and archives is the digital era. The digital revolution “has barely begun,” Crews said. “The transformation of technology and the way we communicate and the way we share information is only beginning, so it is important not to prescribe exact details, but … to take some steps to open up the issue,” he said.</p>
<p style="text-align: justify; ">Chile also underlined the fact that the study showed a low number of countries providing exceptions for interlibrary loans.</p>
<p style="text-align: justify; ">According to Crews, using licences for cross-border activities is limited to the countries which the licence covers. The risks of having licences as a solution to cross-border exchange is that “it leaves the terms to private negotiations,” and many countries might not have laws on licensing.</p>
<p style="text-align: justify; "><b>Licensing Agreements</b></p>
<p style="text-align: justify; ">Sweden said the country has a dual system: “traditional limitations” in the law or preservation and replacement, for example, and a licensing agreement system. The two systems run side-by-side smoothly, he said.</p>
<p style="text-align: justify; ">Crews said that the licensing agreement system is not adaptable to all countries. “There are many reasons why it has not been adopted” in some countries, he said, adding, “I would express some concern about requiring it as an international matter.”</p>
<p style="text-align: justify; ">The European Union said exceptions and limitations and licences often coexist well. Those licences are often collectively negotiated, said the EU delegate, and sometimes cover broader uses than the exceptions themselves.</p>
<p style="text-align: justify; ">Crews said conceptually in the law-making process, countries need to reckon with the relationship not only of the rights of owners and the public rights of use or the copyright exceptions, but also the role of licences, and should they be allowed to override an exception that is in the law.</p>
<p style="text-align: justify; ">“That is a tough question,” he said. “It not only goes to the balance of rights,” he added, but lawmakers should decide to what extent an agreement can impede the statute they have worked hard to develop.</p>
<p style="text-align: justify; "><b>Countries Provide Clarifications, New Legislations</b></p>
<p style="text-align: justify; ">Some countries provided clarifications or additions to the study. For example, Saudi Arabia, which was mentioned in the study as one of the countries with no exceptions and limitations, said the 1984 copyright law provides an exception in paragraph 3.</p>
<p style="text-align: justify; ">Ecuador said it is working on a substantial reform of its current intellectual property legislation, including exceptions and limitations for people with disabilities, teaching and educational institutions, and libraries and archives.</p>
<p style="text-align: justify; ">China said it is undergoing the third revision of its copyright law, and Thailand said in November it passed an amendment to its copyright law, on TPMs, and this amendment includes an exemption for the circumvention of TPM for libraries and archives, educational institutes, and public broadcasting organisations.</p>
<p style="text-align: justify; ">Crews said many countries, including the United States and those in the European Union, have exceptions for TPMs, with two basic procedures: an exception that allows the user to “do the act of circumventing the measures to access the content,” and a legal system that calls on the rights holder to provide the means to users to access the content.</p>
<p style="text-align: justify; ">The United States said the US Congress is currently reviewing elements of its domestic copyright law, including library-related exceptions and limitations.</p>
<p style="text-align: justify; ">In November, the Czech Republic introduced a new amendment to its copyright system, the delegate said, “and the amendment brought a new exception for libraries and archives and for other cultural and educational institutions and for public broadcasters,” enabling them to use orphan works existing in their collection, under specific terms and for certain specific uses.</p>
<p style="text-align: justify; "><b>NGO Questions and Comments</b></p>
<p style="text-align: justify; ">The representative of the Electronic Information for Libraries (eIFL) asked Crews how WIPO, as a United Nations agency with a commitment to enhance developing countries’ participation in the global innovation economy, could support countries to be at the forefront of digital developments. The representative also asked how libraries can accommodate their increasing need to send and receive information across border, within the realm of copyright law.</p>
<p style="text-align: justify; ">Many countries have either no exceptions, or have exceptions but very limited applications, which do not cover digital technology, Crews said, adding that WIPO is in a position to shape the next model.</p>
<p style="text-align: justify; ">The International Publishers Association said that legislation is one thing but to know whether they are implemented and how they work is another. The representative advised looking at what kind of practice, and also practical initiatives between stakeholders can solve issues at stake.</p>
<p style="text-align: justify; ">In many cases, the representative said, issues are solved by alternative means, citing collective licensing, but also solutions bringing together stakeholders, he said, which provide space and flexibility for adaptation and further change. On cross-border document delivery, he said, “It is not true that documents are not crossing continents or crossing borders.” He explained that there are many alternative ways of receiving content across borders.</p>
<p style="text-align: justify; ">Crews said he is supportive of alternatives outside of the law, however, they might not be optimal solutions, he said. In particular, it often takes no less time to develop those alternatives than writing law, he said. He added that those alternatives, such as licences, are available only with respect to certain types of works, whereas statues apply to all types of works.</p>
<p style="text-align: justify; ">“The private extra-legal systems are not going to solve all of the issues,” said Crews.</p>
<p style="text-align: justify; ">The International Federation of Library Associations and Institutions said the United Kingdom reform of its copyright law includes for the first time provisions that prevent contracts and licences from overriding the exceptions and limitations enjoyed by libraries and archives for non-commercial uses.</p>
<p style="text-align: justify; ">The Center for Internet and Society (India) asked about the interoperability of limitations and exceptions to allow for easier trans-boundary movement of works. Crews said the trans-border concept seldom appears in library exceptions. Trans-border sometimes is governed by copyright law and sometimes by some other part of national law, such as import and export, he said. Some degree of harmonisation can help with interoperability, he said.</p>
<p style="text-align: justify; ">In general terms, and following an intervention by the TransAtlantic Consumer Dialogue mentioning public involvement in the discussions, Crews said, “We are all copyright owners and we are all users of other people’s copyrights to some extent.”</p>
<p style="text-align: justify; ">The public does not realise that they are all owners and users of copyrighted works on a daily basis, he said, and they need to become participants in the process.</p>
<p style="text-align: justify; "><i>[Update:]</i></p>
<p style="text-align: justify; ">Knowledge Ecology International asked if the periodical revision of the Berne Convention’s standards for copyright exceptions, which ended in 1971, should be resumed. The KEI representative also asked whether the copyright three-step test contained in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) applies to specific limitations and exceptions to remedies for infringement, in part III of TRIPS (Enforcement of Intellectual Property Rights).</p>
<p style="text-align: justify; ">Crews answered that the three-step test does not apply to the remedies, or other matters. The test is on “its own terms applicable to the limitations and exceptions,” he said.</p>
<p style="text-align: justify; ">On the revision on the Berne Convention, Crews said “the answer is yes” but it is a “bigger subject than we are convened here today to discuss.”</p>
<p style="text-align: justify; ">KEI also mentioned a Spanish tax which “apparently” is taken on snippets from news organisations and asked if this tax does not violate the two mandatory exceptions in the Berne Convention, which are news of the day, and quotations.</p>
<p style="text-align: justify; ">Crews said the issue might be about the interrelationship of copyright with other areas of the law. The Spanish tax mentioned might be relative to a tax law, he said.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-18-2014-wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author'>https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-18-2014-wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to KnowledgeWIPO2014-12-27T14:33:46ZNews ItemWIPO Delegates Hear Concerns of NGOs on Exceptions for Libraries
https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-19-2014-wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries
<b>As World Intellectual Property Organization member states launched into discussions on exceptions and limitations to copyright for the benefit of libraries and archives this week, non-governmental organisations were given the opportunity to present their views on the issue. They delivered vibrant, sometimes contradictory, statements on the opportunity for a treaty to preserve exceptions in the international copyright system. </b>
<p style="text-align: justify; ">The 26th session of the WIPO Committee on Copyright and Related Rights (SCCR) is taking place from 16-20 December. After two days devoted to the protection of broadcasting organisations, the focus of the next two days has been on a potential international instrument providing exceptions and limitations for libraries and archives.</p>
<p style="text-align: justify; ">In their general statements, countries remained faithful to their known positions. Developing countries generally underlined the necessity of achieving a balanced international copyright system and their wish to establish a legally binding instrument, and developed countries were of the view that the existing international copyright system already provides exceptions which could be used by libraries and archives.</p>
<p style="text-align: justify; ">The African Group said the countries in the group: find it difficult to set up and understand the existing limitations and exceptions; believe an international legally binding instrument would enable them to understand better how they can provide exceptions and limitations for libraries and archives; and consider that it would provide a mechanism for cross-border exchange for such entities.</p>
<p style="text-align: justify; ">The European Union clearly stated that its member countries were not willing to consider a legally binding instrument, and said that exceptions and limitations for libraries and archives did not require the same kind of action that was taken in favour of visually impaired people, referring to the recently adopted <a href="http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=245323">Marrakesh Treaty</a> to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.</p>
<p style="text-align: justify; ">Developed countries, in particular those in the European Union, did not always stand in favour of a treaty providing exceptions and limitations to copyright for visually impaired people. In the discussion on libraries and archives, developed countries are in favour of sharing national experiences rather than establishing binding new norms.</p>
<p style="text-align: justify; ">The United States said it was not in support of norm-setting through treaty provisions. The delegate also said exceptions and limitations should be consistent with other member state obligations, including the so-called three step test.</p>
<p style="text-align: justify; ">The notion of three-step test haunted the discussions leading to the Marrakesh Treaty. It stems originally from <a href="http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P140_25350">Article 9(2)</a> of the Berne Convention for the Protection of Literary and Artistic Works (<a href="http://www.ip-watch.org/2013/06/14/test-of-political-flexibility-in-final-lap-for-wipo-treaty-for-the-blind/"><i>IPW</i>, WIPO, 14 June 2013</a>) and provides conditions for reproduction.</p>
<p style="text-align: justify; ">A large number of non-governmental organisations took the floor on 18 December, with stark differences in the approach of the issue of exceptions and limitations to copyright for libraries and archives.</p>
<p style="text-align: justify; ">Industry, Creators: International Instrument Superfluous</p>
<p style="text-align: justify; ">The industry, such as the International Federation of Film Producers, the Motion Picture Association (MPA), The International Association of Editors (IPA), the International Video Federation (IVF), the Ibero-Latin-American Federation of Performers (FILAIE), and the International Association of Scientific, Technical and Medical Publishers (STM), said that the existing international copyright framework already provides exceptions and limitations, and national legislations can be develop to address issues met by libraries and archives.</p>
<p style="text-align: justify; ">FILAIE said that it was in support of the Marrakesh Treaty but that a balance between society and the rights holders should be maintained. The IPA said there is no need for change in the international law, and suggested active legislative assistance to WIPO member states by the secretariat.</p>
<p style="text-align: justify; ">IVF concurred and said effective technical assistance in implementing the existing international copyright framework should be a focus of the SCCR.</p>
<p style="text-align: justify; ">The International Federation of Reproduction Rights Organisation (IFRRO), in <a href="http://www.ifrro.org/content/ifrro-statement-wipo-sccr-26-18-december-2013">its statement</a>, also said the current international conventions adequately provide for the establishment of relevant library exceptions in national legislation, such as reproduction for preservation proposals. The sharing of experiences ” both in the wording of library and archive exceptions and practical solutions seems to IFRRO to be the most appropriate way to enhance the performance of library and archive services,” the representative said.</p>
<p style="text-align: justify; ">“Exceptions and limitations are already part of the toolkit of existing treaties,” the representative for the International Federation of Actors and the International Federations of Musicians said. The international normative framework is providing “a coherent and flexible structure with just recognition of the contribution of creators to the information society and knowledge society, and the establishment of exceptions and other mechanisms providing access for the public to creative content,” he said.</p>
<p style="text-align: justify; ">The International Authors Forum concurred with the idea that existing provisions contain sufficient flexibility and asked that WIPO member states “will take advantage of the opportunity provided by the WIPO texts for adequate remuneration for the authors in accordance with the three-step test.”</p>
<p style="text-align: justify; ">Libraries, Archive Underline Inadequacies, Support Treaty</p>
<p style="text-align: justify; ">Libraries and archivists have a different view of the issue and reported on problems as they experience them on the ground.</p>
<p style="text-align: justify; ">The German Library Association cited a new study published by the European Commission (<a href="http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf">Study on the application of Directive 2001/29/EC on copyright and related rights in the information society</a> [pdf]), and said it “paints a dire picture of the adequacy of the Directive for exceptions for libraries in the European Union in the digital environment.”</p>
<p style="text-align: justify; ">In particular, the representative said, it “identifies a lack of cross-border application of exceptions for libraries and a patchwork of national laws as preventing libraries from fulfilling their functions,” in particular presenting cross-border issues, he said.</p>
<p style="text-align: justify; ">“There is a high level of international copyright protection,” he said, but “there is no such uniformity of limitations.” To act legally, he said, “library staff has to know about the limitations and exception, not only in their own country, the country of origin, but also in the country of destination of its service.”</p>
<p style="text-align: justify; ">The Canadian Library Association said it came to WIPO “to ensure a basic copyright framework is made available to libraries everywhere, and not just in Canada to deliver essential information services, and so that other communities can benefit from the same societal and economic impacts as we have in Canada.”</p>
<p style="text-align: justify; ">Even in Canada, the representative said, libraries’ activities are under threat, “as increased restrictions such as technology group protection measures and licensing terms and conditions degrade the environment in which we work, leaving libraries changing our role to simple market access intermediaries for publishers.”</p>
<p style="text-align: justify; ">For Electronic Information for Libraries, an international framework establishing basic standards is necessary to avoid increasing inequalities in public knowledge. “We recognise the theory that the international copyright framework provides legal space to ensure meaningful limitations and exceptions,” the representative said, “But when the reality is different, and the gap between countries is widening, intervention is required to ensure the integration of key public interest concepts into the international framework.”</p>
<p style="text-align: justify; ">The International Federation of Library Associations and Institutions also underlined the disparity in national exceptions and limitations making it impossible for libraries to “competently fulfil our role as intermediaries between rights holders and users.”</p>
<p style="text-align: justify; ">Archives</p>
<p style="text-align: justify; ">The International Council of Archives (CIA) said a legally binding instrument will enable cross-border for non-commercial research purposes. The Societies of American Archivists said “current law prevents us from using the barrier-breaking technology to reach the shared goals of archives and copyright law, that is, expanding knowledge and creating new works.”</p>
<p style="text-align: justify; ">“The United States, for instance, has some library and archives exceptions, but they are inadequate and woefully out of date,” the representative said, listing a number of actions that are not permitted, such as preserving backup copies of digitised materials. “As for fair use, it is often subject to costly litigation leaving too many archives hesitant to put material online,” he said.</p>
<p style="text-align: justify; ">Civil Society</p>
<p style="text-align: justify; ">Knowledge Ecology International underlined the increasing role of contracts in eroding exceptions in countries which have statutory exceptions. “We notice,” the representative said, “that the groups that oppose the library treaty are strong supporters of treaties for broadcast organisations.”</p>
<p style="text-align: justify; ">The Center for Internet and Society (India) supported an international instrument, in particular from the perspective of developing and least-developed countries. It would serve two main purposes, the representative said. On the one hand, it would protect copyrighted works, and on the other, it would provide greater access to these materials, and allow the dissemination of knowledge, culture and information, in accordance with the WIPO Development Agenda.</p>
<p style="text-align: justify; ">The SCCR Chair, Martin Moscoso, director of the Peru Copyright Office, encouraged member states to take the NGOs statements into account.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-19-2014-wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries'>https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-19-2014-wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to KnowledgeWIPO2014-12-27T14:40:05ZNews ItemCIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions
https://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions
<b>This is a submission made by Nehaa Chaudhari on behalf of the Centre for Internet and Society to the Expert Committee on the Broadcast Treaty constituted by the Ministry of Information and Broadcasting, Government of India. This submission compares the definitions of various terms in the Proposed Treaty for the Protection of Broadcasting Organizations that is being deliberated at WIPO's SCCR at the moment, and definitions for these terms that are already present in existing international instruments. </b>
<p style="text-align: justify; ">Special thanks to CIS intern, Amulya Purushothama for her research and writing on this subject. <i>While Amulya was acknowledged as the co author in the actual submission itself, the blurb didn't say so and this has now been changed</i>. Download the file of <a href="https://cis-india.org/a2k/blogs/cis-submission-to-expert-committee.pdf" class="external-link">CIS submission here</a>.</p>
<hr />
<p style="text-align: justify; "><b>Introduction</b></p>
<p style="text-align: justify; ">This note analyses the differences in definitional clauses across six documents, the proposed Treaty on the Protection of Broadcasting Organisations <a href="#_ftn1" name="_ftnref1">[1]</a> <b>("Broadcast Treaty")</b>,<b> </b>the Proposal on the Draft Treaty on the Protection of Broadcasting Organization- The Proposal by the Delegation of South Africa<a href="#_ftn2" name="_ftnref2">[2]</a> <b>("Proposal by South Africa"), </b>The WIPO Copyright Treaty, 1996, the WIPO Performances and Phonograms Treaty,1996 <b>("WPPT")</b>, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 <b>("The Rome Convention")</b>, and the Beijing Treaty on Audiovisual Performances, 2012 <b>("The Beijing Treaty")</b></p>
<p style="text-align: justify; ">The definitions for signal, broadcasting, broadcasting organization, retransmission, fixation, communication to the public and rights management information will be studied in detail as the definitions for these concepts has varied somewhat through the years. The rest of the definitions can be found in a detailed table that follows.</p>
<p style="text-align: justify; ">The argument here is simply that by subtly broadening the definition of certain terms, the broadcast treaty grants a higher level of protection to broadcasting organization, and that these protections could possibly extend to covering the content underlying the signals.</p>
<p style="text-align: justify; "><b>1. </b><b>Signal</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines a signal as an "electronically generated carrier consisting of sounds or images or sounds and images or representations thereof whether encrypted or not"<a href="#_ftn3" name="_ftnref3">[3]</a>, the alternative to this provision defines a signal as an "electronically generated carrier capable of transmitting a broadcast cablecast"<a href="#_ftn4" name="_ftnref4">[4]</a>. The proposal by South Africa, on the other hand, defines a signal as "an electric current or electromagnetic field used to convey data". Clearly the definition in the Broadcast Treaty could be extended to cover the content underlying the signal and is not as technologically neutral as the alternative definitions.</p>
<p style="text-align: justify; "><b>2. </b> <b>Broadcasting </b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines broadcast as the "transmission of a signal by a broadcasting organization for reception by the public"<a href="#_ftn5" name="_ftnref5">[5]</a>, an alternative to this excludes signals sent over computer networks from the definition of a broadcast, <a href="#_ftn6" name="_ftnref6">[6]</a> another alternative defines broadcasting as "the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof". This definition includes satellite transmission, wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent. Transmission over computer networks is excluded from this definition as well.<a href="#_ftn7" name="_ftnref7">[7]</a> This mirrors definitions of broadcasting set out in the WPPT<a href="#_ftn8" name="_ftnref8">[8]</a>, the Rome Convention<a href="#_ftn9" name="_ftnref9">[9]</a> and the Beijing Treaty<a href="#_ftn10" name="_ftnref10">[10]</a>. The proposal by South Africa defines "broadcasting" as the process whereby "the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications" and "broadcast" is construed accordingly. Clearly the proposed definition under the Broadcast Treaty is less technologically neutral as compared to the proposal by South Africa. The proposed definition under the Broadcast Treaty also does not limit the protection granted by the treaty to the signal and unlike the proposal by South Africa does not ensure that definition excludes the underlying content being transmitted by the signal.</p>
<p style="text-align: justify; "><b>3. </b><b>Broadcasting Organisations</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines a broadcasting organization as "the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal." Or alternatively<a href="#_ftn11" name="_ftnref11">[11]</a>, considers broadcasting organisations and cablecasting organisations as one and the same and defines them as "the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission." The proposal by South Africa defines a broadcasting organization as the "legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds". Clearly, in stark contrast to the proposed Broadcast Treaty, the proposal by South Africa ensures that cablecasting organisations aren't included within the definition of broadcasting organisations, this definition is also by far the most technologically neutral and ensures adequate protection for broadcasting organisations on all broadcasting platforms.</p>
<p style="text-align: justify; "><b>4. </b><b>Retransmission</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines "retransmission" as "the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed";<a href="#_ftn12" name="_ftnref12">[12]</a> or alternatively defines rebroadcast as "the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization"; even simultaneous transmission of a rebroadcast is understood to be a rebroadcast under this definition. <a href="#_ftn13" name="_ftnref13">[13]</a></p>
<p style="text-align: justify; ">Under a further alternative<a href="#_ftn14" name="_ftnref14">[14]</a> retransmission is defined as "the simultaneous transmission for the reception by the public by any means of a transmission … by any other person than the original broadcasting or cablecasting organization" this definition of retransmission also includes simultaneous transmission of a retransmission.</p>
<p style="text-align: justify; ">To contrast to this, the Rome convention defines rebroadcasting as the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.<a href="#_ftn15" name="_ftnref15">[15]</a> Clearly a higher level of protection is granted to broadcasting organisations under the proposed Broadcast Treaty, one that was so far not guaranteed to them by international conventions.</p>
<p style="text-align: justify; "><b>5. </b><b>Fixation</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines fixation as "the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device" <a href="#_ftn16" name="_ftnref16">[16]</a> <a href="#_ftn17" name="_ftnref17">[17]</a>,the WPPT defines fixation as "the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device";<a href="#_ftn18" name="_ftnref18">[18]</a> and the Beijing Treaty defines audiovisual fixation as "the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device".<a href="#_ftn19" name="_ftnref19">[19]</a> In this capacity, the definitions proposed in the Broadcast Treaty seem to be in line with the earlier international treaties.</p>
<p style="text-align: justify; "><b>6. </b><b>Communication to the Public</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines communication to the public as "any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform".<a href="#_ftn20" name="_ftnref20">[20]</a>or alternatively as "making the transmissions … audible or visible or audible and visible in places accessible to the public.<a href="#_ftn21" name="_ftnref21">[21]</a> Whereas the WPPT defined communication to the public as "the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram… including making the sounds or representations of sounds fixed in a phonogram audible to the public."<a href="#_ftn22" name="_ftnref22">[22]</a> The Beijing Treaty defined communication to the public as "the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audio visual fixation… "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public." <a href="#_ftn23" name="_ftnref23">[23]</a> Clearly the definition has been broadened under the proposed treaty, which makes it plausible for the protection granted to broadcasters to cover the content underlying the signal as well.</p>
<p style="text-align: justify; "><b>7. </b><b>Rights Management Information</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines rights management information as "information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6."<a href="#_ftn24" name="_ftnref24">[24]</a> The WIPO Copyright Treaty, 1996, defines it as "information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public."<a href="#_ftn25" name="_ftnref25">[25]</a></p>
<p style="text-align: justify; ">The WPPT extends the same definition to performances and performers as it defines rights management information as "information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public."<a href="#_ftn26" name="_ftnref26">[26]</a> And the Beijing Treaty defines rights management information as "information which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation."<a href="#_ftn27" name="_ftnref27">[27]</a></p>
<p style="text-align: justify; ">Clearly the current treaty extends the protection offered to rights management information to pre-broadcasting signals in addition to broadcast signals, this represents a higher level of protection granted to broadcasters under the proposed Broadcast Treaty.</p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>Detailed Table on Definitions in International Treaties</b></p>
<table class="grid listing">
<tbody>
<tr>
<td>
<p><b>Definition</b></p>
</td>
<td>
<p><b>Broadcast Treaty 27/2 rev</b></p>
</td>
<td>
<p><b>Broadcast Treaty Proposal by South Africa</b></p>
<p><b>WIPO/CR/Consult/GE/11/2/2</b></p>
</td>
<td>
<p><b>WIPO Copyright Treaty, 1996</b></p>
</td>
<td>
<p><b>WIPO Performances and Phonograms Treaty,1996 </b></p>
</td>
<td>
<p><b>Rome Convention, 1961</b></p>
</td>
<td>
<p><b>Beijing Treaty on Audiovisual Performances, 2012</b></p>
</td>
</tr>
<tr>
<td>
<p><b>Signal</b></p>
</td>
<td>
<p>Article 5, Alternative A, 5(a): "signal" is an electronically generated carrier consisting of sounds or images or sounds and images or representations thereof, whether encrypted or not;</p>
<p>Alternative to (a), "signal" means an electronically generated carrier capable of transmitting a broadcast or cablecast</p>
</td>
<td>
<p>"signal" is an electric current or electromagnetic field used to convey data;</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Broadcast</b></p>
</td>
<td>
<p>Article 5, Alternative A : Article 5 (b): "broadcast" means the transmission of a signal by or on behalf of a broadcasting organization for reception by the public;</p>
<p>Alternative to (b): "broadcast" means the transmission of a set of electronically generated signals by wireless and carrying a specific program for reception by the general public, broadcast shall not be understood as including transmission of such a set of signals over computer networks.</p>
<p>Alternative B for Article 5, Article 5 (a) "broadcasting" means the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting". Wireless transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent. "broadcasting" shall not be understood as including transmissions over computer networks</p>
</td>
<td>
<p>"broadcasting" means the process whereby the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications and "broadcast" is construed accordingly"</p>
</td>
<td></td>
<td>
<p>Article 2(f): "broadcasting" means the transmission by wireless means for public reception of</p>
<p>sounds or of images and sounds or of the representations thereof; such transmission by</p>
<p>satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the</p>
<p>means for decrypting are provided to the public by the broadcasting organization or with its</p>
<p>consent;</p>
</td>
<td>
<p>Article 3 (f): "broadcasting" means the transmission by wireless means for public reception of sounds or of</p>
<p>images and sounds;</p>
</td>
<td>
<p>Article 2(c): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.</p>
</td>
</tr>
<tr>
<td>
<p><b>Broadcasting Organization</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (c): "broadcasting organization" means the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal.</p>
<p>Alternative B for Article 5, Article 5 (c): "broadcasting organization" and "cablecasting organization" mean the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission.</p>
</td>
<td>
<p>"broadcasting organization" means the legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds.</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Retransmission</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5(d): "retransmission" means the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed;</p>
<p>Alternative to (d) rebroadcast means the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization; simultaneous transmission of a rebroadcast shall be understood as well to be a rebroadcast.</p>
<p>Alternative B for Article 5, Article 5 (d): "retransmission" means the simultaneous transmission for the reception by the public by any means of a transmission referred to in provisions (a) or (b) of this article by any other person than the original broadcasting or cablecasting organization; simultaneous transmission of a retransmission shall be understood as well to mean a retransmission.</p>
</td>
<td></td>
<td></td>
<td></td>
<td>
<p>Article 3(g): "rebroadcasting" means the simultaneous broadcasting by one broadcasting organization of the</p>
<p>broadcast of another broadcasting organization.</p>
</td>
<td></td>
</tr>
<tr>
<td>
<p><b>Fixation</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (e) "fixation" means the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device</p>
<p>Alternative B for Article 5, Article 5 (f) "fixation" means the embodiment of sounds or of images or of images and sounds or of the representations thereof from which they can be perceived, reproduced or communicated through a device.</p>
</td>
<td></td>
<td></td>
<td>
<p>Article 2(c): "fixation" means the embodiment of sounds, or of the representations thereof, from</p>
<p>which they can be perceived, reproduced or communicated through a device;</p>
</td>
<td></td>
<td>
<p>Article 2(b): "audiovisual fixation" means the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device.</p>
</td>
</tr>
<tr>
<td>
<p><b>Communication to the Public</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (f): "communication to the public" means any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform.</p>
<p>Alternative B for Article 5, Article 5 (e): "communication to the public" means making the transmissions referred to in provisions (a), (b) or (d) of this article audible or visible or audible and visible in places accessible to the public.</p>
</td>
<td></td>
<td></td>
<td>
<p>Article 2(g): "communication to the public" of a performance or a phonogram means the</p>
<p>transmission to the public by any medium, otherwise than by broadcasting, of sounds of a</p>
<p>performance or the sounds or the representations of sounds fixed in a phonogram. For the</p>
<p>purposes of Article 15, "communication to the public" includes making the sounds or</p>
<p>representations of sounds fixed in a phonogram audible to the public.</p>
</td>
<td></td>
<td>
<p>Article 2(d): "Communication to the public of a performance means the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audiovisual fixation. For the purposes of Article 11, "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public.</p>
</td>
</tr>
<tr>
<td>
<p><b>Pre-broadcast Signal</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (g): "pre broadcast signal" means a transmission prior to broadcast that a broadcasting organization intends to include in its program schedule, which is not intended for direct reception by the public</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Rights Management Information</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (h) "rights management information" means information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6.</p>
</td>
<td></td>
<td>
<p>Article 12(2): "rights management information" means information which</p>
<p>identifies the work, the author of the work, the owner of any right in the work, or information</p>
<p>about the terms and conditions of use of the work, and any numbers or codes that represent</p>
<p>such information, when any of these items of information is attached to a copy of a work or</p>
<p>appears in connection with the communication of a work to the public</p>
</td>
<td>
<p>Article 19(2): "rights management information" means information which</p>
<p>identifies the performer, the performance of the performer, the producer of the phonogram,</p>
<p>the phonogram, the owner of any right in the performance or phonogram, or information</p>
<p>about the terms and conditions of use of the performance or phonogram, and any numbers or</p>
<p>codes that represent such information, when any of these items of information is attached to a</p>
<p>copy of a fixed performance or a phonogram or appears in connection with the</p>
<p>communication or making available of a fixed performance or a phonogram to the public.</p>
</td>
<td></td>
<td>
<p>Article 16(2): "rights management information" which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation.</p>
</td>
</tr>
<tr>
<td>
<p><b>Transmission</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (i), "transmission" means the sending for reception by the public of visual images sounds or representations thereof by the way of an electronic carrier</p>
</td>
<td>
<p>"electronic communications" means the emission, transmission or reception of sounds , visual images or other visible signals whether with or without accompanying sounds by means of magnetism, radio or other electromagnetic waves, optical electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct.</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Program</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 , alternative to (j), "program" means a discreet package of one or more works protected by copyright or related rights in the form of live or recorded material consisting of images, sounds or both.</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Cablecast</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (k) "cablecast" means the same as "broadcast" when the transmission is by wire and excluding transmission by satellite or over computer networks.</p>
<p>Alternative B for Article 5, Article 5 (b): "cablecasting" means the transmission by wire for the reception by the public of sounds or of images or of images and sounds or of the representations thereof. Transmission by wire of encrypted signals is "cablecasting" where the means for decrypting are provided to the public by the cablecasting organization or with its consent. "cablecasting" shall not be understood as including transmissions over computer networks.</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Performers</b></p>
</td>
<td></td>
<td></td>
<td></td>
<td>
<p>Article 2(a) :"performers" are actors, singers, musicians, dancers, and other persons who act,</p>
<p>sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or</p>
<p>expressions of folklore</p>
</td>
<td>
<p>Article 3(a): "performers" means actors, singers, musicians, dancers, and other persons who act, sing, deliver,</p>
<p>declaim, play in, or otherwise perform literary or artistic works;</p>
</td>
<td>
<p>Article 2(a): "performers" are actors, singers, musicians, dancers, and other persons, who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore.</p>
</td>
</tr>
</tbody>
</table>
<div><br clear="all" />
<hr align="left" size="1" width="33%" />
<div id="ftn1">
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1">[1]</a> See Working Document for a Treaty on the Protection of Broadcasting Organisations, Prepared by the Secretariat, Standing Committee on Copyright and Related Rights, 27<sup>th</sup> Session, Geneva, April 28- May 2, 2014, SCCR/27/2/REV. (Hereafter The Broadcast Treaty.)</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> The Proposal on the Draft Treaty on the Protection of Broadcasting Organisations, Proposal by the Delegation of South Africa, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14 and 15, 2011, WIPO/CR/Consult/Ge/11/2/2. (Hereafter, The South African Proposal)</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> Article 5, Alternative A, 5(a), the Broadcast Treaty.</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> Article 5, Alternative A, Alternative to (a), The Broadcast Treaty.</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> Article 5, Alternative A, Article 5 (b), The Broadcast Treaty.</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> Article 5, Alternative A, Alternative to (b), The Broadcast Treaty.</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> Alternative B for Article 5, Article 5 (a) The Broadcast Treaty.</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> See Article 2(f) of the WIPO Performances and Phonograms Treaty, 1996.(Hereinafter, WPPT) that reads as: "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent"</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> See Article 3 (f) of the Rome Convention, 1961 (Hereafter The Rome Convention), that reads as: '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds.'</p>
</div>
<div id="ftn10">
<p style="text-align: justify; "><a href="#_ftnref10" name="_ftn10">[10]</a> See Article 2(c) of the Beijing Treaty on Audiovisual Performances, 2012(Hereafter The Beijing Treaty), that reads as '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.'</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> Alternative B for Article 5, Article 5 (c) The Broadcast Treaty.</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> Article 5, Alternative A to Article 5(d) The Broadcast Treaty.</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> Alternative to Article 5(d), The Broadcast Treaty.</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> Alternative B for Article 5, Article 5 (d), The Broadcast Treaty.</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> Article 3(g), The Rome Convention, 1961.</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> Article 5, Alternative A to Article 5 (e), The Broadcast Treaty.</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> Alternative B for Article 5, Article 5 (f), The Broadcast Treaty.</p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> Article 2(c), WPPT.</p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> Article 2(b), The Beijing Treaty</p>
</div>
<div id="ftn20">
<p><a href="#_ftnref20" name="_ftn20">[20]</a> Article 5, Alternative A to Article 5 (f), The Broadcast Treaty.</p>
</div>
<div id="ftn21">
<p><a href="#_ftnref21" name="_ftn21">[21]</a> Alternative B for Article 5, Article 5 (e), The Broadcast Treaty.</p>
</div>
<div id="ftn22">
<p><a href="#_ftnref22" name="_ftn22">[22]</a> Article 2(g), WPPT.</p>
</div>
<div id="ftn23">
<p><a href="#_ftnref23" name="_ftn23">[23]</a> Article 2(d), The Beijing Treaty.</p>
</div>
<div id="ftn24">
<p><a href="#_ftnref24" name="_ftn24">[24]</a> Article 5 (h), The Broadcast Treaty.</p>
</div>
<div id="ftn25">
<p><a href="#_ftnref25" name="_ftn25">[25]</a> Article 12(2), The WIPO Copyright Treaty, 1996.</p>
</div>
<div id="ftn26">
<p><a href="#_ftnref26" name="_ftn26">[26]</a> Article 19(2), WPPT.</p>
</div>
<div id="ftn27">
<p style="text-align: justify; "><a href="#_ftnref27" name="_ftn27">[27]</a> Article 16(2), The Beijing Treaty.</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions'>https://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions</a>
</p>
No publisherAmulya Purushothama and Nehaa ChaudhariIntellectual Property RightsAccess to KnowledgeWIPO2015-09-03T02:08:34ZBlog EntryThe Broadcasting Treaty: A Solution in Search of a Problem?
https://cis-india.org/a2k/news/kei-10-december-2014-the-broadcasting-treaty-a-solution-in-search-of-a-problem
<b>Nehaa Chaudhari was one of the speakers at this side event held on December 10, 2014.</b>
<div class="content" style="text-align: justify; ">
<p>See the <a class="external-link" href="http://keionline.org/node/2135">details on Knowledge Ecology International website</a>.</p>
<hr />
<p>On Wednesday, 10 December 2014, Knowledge Ecology International (KEI) will convene a side event entitled, "The Broadcasting Treaty: A Solution in Search of a Problem?"; the event will take place in Room B of the World Intellectual Property Organization (WIPO) from 13:30 to 15:00. Speakers include: Nehaa Chaudhari, (Programme Officer at Centre for Internet and Society, New Delhi/Banglaore), Jeremy Malcolm, (Senior Global Policy Analyst, Electronic Frontier Foundation), James Love, (Director, KEI) and Viviana Munoz Kieffer, (Coordinator, Innovation and Access to Knowledge Programme, South Centre).</p>
<p><b>Background</b></p>
<p>Since its first SCCR (Nov 2-10, 1998) WIPO and member states have been asked to resolve the requests for new legal protections for broadcasting organizations. All participants to the SCCR were asked then "to submit, by the end of March 1999, proposals and/or views in treaty language or in other form."</p>
<p>Since then the rights of broadcasting organizations have been on the agenda. While the committee is still trying to identify precisely the problems Broadcasters' rights (or right?)to be solved (piracy in its broadest definition?), the proposal for a new international norm setting may create a new layer of post fixation rights in content that broadcasters do not create, license nor own.</p>
<p>The demandeurs i.e. some of the broadcasting organizations representatives and some member states are listing endless rights such as transmission, retransmission or deferred transmission whether simultaneous or near simultaneous on demand of a broadcast signal to the public, as well as transmission over the internet. Most of these rights exist in some form or another in most WIPO member states. However, for many SCCR participants, if the committee truly wants to move forward on this new norm setting exercise it must focus on a narrow treaty based on a single right corresponding to the core need of broadcasting organizations for protection from signal piracy.</p>
<p>After 15 years of negotiations, formal and informal, text based or not, it is time to answer some of the following questions:</p>
<p>Would adding a new layer of rights over content on the internet be consistent with the committee's mandate to limit protection to the broadcaster's signal?</p>
<p>Would the new international right (or rights) have an impact on consumers and creative communities globally?</p>
<p>Would the new instrument have the necessary exceptions for quotations or news of the day?</p>
<p>Would the extension of the rights under discussion to cable television (and services which already require subscriber fees) create a redundant layer of protection to services already protected under other legal regimes and thus be anticompetitive?</p>
<p>Would the protection of over the air broadcast signal be sufficient for broadcasters? If not why not?</p>
</div>
<hr />
<p><b>Download the transcript <a href="https://cis-india.org/accessibility/blog/kei-side-talk-events.pdf" class="external-link">here</a></b></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/news/kei-10-december-2014-the-broadcasting-treaty-a-solution-in-search-of-a-problem'>https://cis-india.org/a2k/news/kei-10-december-2014-the-broadcasting-treaty-a-solution-in-search-of-a-problem</a>
</p>
No publisherpraskrishnaAccess to KnowledgeWIPO2015-01-09T02:31:55ZNews Item25th Session of the WIPO SCP: Statement on Future work
https://cis-india.org/a2k/blogs/25th-session-of-the-wipo-scp-statement-on-future-work
<b>Rohini Lakshané, attending the 25th session of the World Intellectual Property Organization (WIPO) Standing Committee on the Law of Patents (SCP) held in Geneva from December 12, 2016 to December 15, 2016, made this statement on Agenda Item #12, "Future Work".</b>
<p style="text-align: justify; ">Thank you, madam Chair.</p>
<p style="text-align: justify; ">On behalf of my organisation, the Centre for Internet and Society, India, I urge future SCPs to include the topics of standards as well as patents in the hardware and software domains. In many developed countries, the mobile phone is the only means of access to the Internet, and in turn, of access to knowledge and information. In a study published this year by CIS, we found that all mobile phone patents in India are owned by non-Indian entities. Like in the case of pharmaceuticals, we believe that a rise in prices should not drive affordable hardware out of the reach of the people. To that effect, I would like to reiterate that the SCP consider including this topic in future meetings.<br /><br />Thank you, madam Chair.</p>
<hr />
<p><a class="external-link" href="http://cis-india.org/a2k/blogs/25-wipo-sccr-agenda.pdf">See the agenda</a></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/25th-session-of-the-wipo-scp-statement-on-future-work'>https://cis-india.org/a2k/blogs/25th-session-of-the-wipo-scp-statement-on-future-work</a>
</p>
No publisherrohiniAccess to KnowledgeWIPO2016-12-16T23:01:40ZBlog EntryWIPO SCCR 41: Statement by CIS on Limitations and Exceptions Agenda Item
https://cis-india.org/a2k/blogs/wipo-sccr-41-statement-by-cis-on-limitations-and-exceptions-agenda-item
<b>Anubha Sinha delivered a statement on behalf of CIS, on day 2 of the 41st WIPO SCCR session, on the limitations and exceptions agenda item.</b>
<p>Thank you Mr. Chair. </p>
<p>I’m speaking on behalf of the Centre for Internet and Society, India. </p>
<p>The pandemic has hit the world hard, and developing countries even harder. The committee should urgently lead the way on developing concrete solutions in the domain of limitations and exceptions that are timely and meaningful. Useful suggestions have already been offered by member states in the nature of tools that could enhance cross-border cooperation and international norm setting. This could take the form of guidelines, model laws, and the like. </p>
<p>Further, the regional consultations should have proper representation and give proper weightage to views of beneficiaries of this agenda item. WIPO should also plan to institute measures to enable proper participation, in view of the digital divide</p>
<p dir="ltr">It should further be borne in mind that there exists wide socio-economic disparity in the region, and there has traditionally been a strong reliance by students and researchers on knowledge generated in foreign countries. Thus a lack of international harmonisation of limitations and exceptions disproportionately affects developing countries. These limitations and exceptions need to urgently address cross-border uses, online uses, and digital preservation to create the maximum developmental impact.</p>
<p dir="ltr">Thank you.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-sccr-41-statement-by-cis-on-limitations-and-exceptions-agenda-item'>https://cis-india.org/a2k/blogs/wipo-sccr-41-statement-by-cis-on-limitations-and-exceptions-agenda-item</a>
</p>
No publishersinhaLimitations & ExceptionsAccess to KnowledgeWIPO2021-06-29T13:20:59ZBlog EntryWIPO SCCR 41: Notes from Day 2
https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-2
<b>Member states delivered opening statements and deliberated on the scope, direction, and progress of work on the limitations and exceptions agenda. This blog post summarises positions and contentions around: 1) Information Session on impact COVID 2) Creating a binding limitations and exceptions international instrument 3) Work Plan under the L&E agenda 4) Conducting regional consultations as per the report on regional seminars and international conference on limitations and exceptions. </b>
<p>There was a strong consensus on the fact that COVID had adversely affected actors and beneficiaries involved with the copyright system, but there was less consensus on which stakeholders and beneficiaries to focus on as a priority, and which next steps and remedies should be considered. The gamut of stakeholders under the limitations and exceptions agenda item includes authors, publishers, creative cultural industries, educational and research institutions, persons with disabilities, libraries, museums, and archives, licensing societies, and users’ rights advocates.</p>
<h2>Agenda Item: Limitations and Exceptions<br /></h2>
<h3>1. Conducting an Information Session on impact of COVID <br /></h3>
<p>Bangladesh (on behalf of Asia-Pacific group) proposed an information session on the copyright framework in the format of presentations from experts and relevant stakeholders as well as exchange of views among them at the next SCCR (SCCR42) to understand the impact on COVID-19, especially as developing countries, with a view of rights, related rights and exceptions and limitations. It noted the lack of international settings that could have enabled a collaborative approach during COVID-19 to handling the impact on education, research, culture and knowledge.</p>
<p>Pakistan, Indonesia, and Iran supported the proposal. South Africa backed both the proposal and the regional consultations along with a preference for completing them in a time bound manner by the next SCCR. Belarus was in support as well.</p>
<p>Georgia (on behalf of the CEBS group) was in favour of an information session for evaluating an all-round impact of the pandemic which was not only from a limitations and exceptions viewpoint. In a similar vein, USA suggested that the information session be holistic in its framing – all parts of the copyright system should be taken into consideration. UK (on behalf of Group B) stated that it would prefer to examine a formal proposal document on such a session first, that should adopt a ‘holistic approach’.</p>
<p>Towards the end, Indonesia questioned whether the idea of a ‘holistic’ information session equally focused on rights and related rights could even be counted or considered as a next step in the limitations and exceptions (“<strong>L&E</strong>”) agenda item.</p>
<h3>2. Working towards a binding international L&E instrument <br /></h3>
<p>Georgia (on behalf of the CEBS group) stuck to its position of 1) taking an evidence-based approach on the way forward for the L&E agenda and preference to 2) exchanging national best practices instead of creating a binding treaty. Ecuador was also in favour of exchanging best practices. UK (on behalf of group B) was in favour of providing technical assistance to countries, and the EU and USA maintained their position against an international instrument.</p>
<p>Bangladesh (on behalf of Asia-Pacific group) stated that COVID had forced a rethink of role of copyright in ensuring access to educational and resource materials as well as protecting the rights of the creators of the copyrighted works, in situations such as the pandemic. The absence of an international instrument on limitations and exceptions has been widely felt in this context.</p>
<p>Pakistan stated that a baseline international instrument was necessary and would be useful for looking at one’s own national law. South Africa (on behalf of Asia-Pacific group) Indonesia reminded everyone that work under this agenda item should proceed under the 2012 mandate of developing a legal instrument on limitations and exceptions. Iran also expressed its support for a norm-setting instrument.</p>
<h3>3. Work Plan under the L&E agenda <br /></h3>
<p>South Africa said that a clear way forward for limitations and exceptions was necessary, and that way forward should not be limited to the views and steps mentioned in the <a class="external-link" href="https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=515597">report on the regional seminars and international conference on limitations and exceptions ("<strong>report</strong>")</a>. It also supported the 2012 mandate on developing an international instrument on limitations and exceptions.</p>
<p>UK (on behalf of group B) stated that access to knowledge should not inhibit the remunerative rights to authors and performers. Ecuador said that it supported narrow limitations and exceptions that comply with the Berne three-step test.</p>
<p>Russia suggested the creation of a set of “general principles” underpinning this agenda item, to set a base standard agreed by everyone and begin work from that point. It noted that it was crucial to resolve the issues of cross-border sharing, legal uncertainty between countries, and digital preservation. It added that the principles could become the guiding principles for national legislation as well. <br />Pakistan, noting the COVID impact, stated that cross-border cooperation or international norm-setting could be useful. Brazil stated that there was a consensus on preservation and cross-border issues, and room for further discussions on limitations and exceptions for ‘persons with other disabilities’ under this agenda item. Chile added that international guidelines were desirable at least in the area of education, libraries, and archives.</p>
<p>In the end, Indonesia in its statement reminded everyone that there was still no concrete work plan (under this agenda) on the table. This despite the draft report indicating issues such as preservation, online uses, cross-border uses, and safe harbour as feasible for discussion on next steps. The report had also recommended formation of expert groups to study these issues further (para 400 of the report (SCCR42/2)) It added that while it was aligned to the 2012 mandate (of producing a legal instrument), the work plan could include a joint recommendation.</p>
<h3>4. Regional Consultations (as per <a class="external-link" href="https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=515597">report's recommendation</a>) <br /></h3>
<p>China endorsed the regional consultation. EU supported regional consultations, noting that COVID had impacted creative cultural industries as well. Pakistan stated that it was important for the consultations to include beneficiaries of this agenda item.</p>
<p>UK (on behalf of Group B) questioned whether holding regional consultations were necessary during a pandemic, and later added that the regional consultations and information session exercises should not be executed together.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-2'>https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-2</a>
</p>
No publishersinhaLimitations & ExceptionsAccess to KnowledgeWIPO2021-07-08T14:55:30ZBlog Entry36th SCCR: CIS Statement on the Proposed Treaty for the Protection of Broadcasting Organizations
https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-the-proposed-treaty-for-the-protection-of-broadcasting-organizations
<b>Anubha Sinha, attending the 36th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from May 28, 2018 to June 1, 2018, made this statement on the Proposed Treaty for the Protection of Broadcasting Organizations on behalf of CIS on Day 1, May 28. </b>
<div>Thank you Mr. Chair</div>
<div> </div>
<div>We would like to highlight that some of the existing alternatives to the text of the Broadcasting treaty have serious issues.</div>
<div> </div>
<p>Some of the points that bear re-emphasizing are problems with watering down of limitations and exceptions, and the contemplation of a fifty year term of protection without any rationale or justifications.</p>
<div>If you look at the history of the Committee’s deliberations, the limitations and exceptions have been significantly diluted over the years. On the other hand, the ask for increased protections in terms of number of rights, scope and term has only increased. </div>
<div> </div>
<div>Further, if the protection extends only to the signal and not to the programmes contained therein, it is not clear as to why a 50 year protection is needed for an ephemeral signal.</div>
<div> </div>
<p>Reiterating the words of the Asia-Pacific Group - this matter requires proper balancing from a developmental perspective. I submit that in my opinion, it does not appear that we are anywhere close to achieving that.</p>
<div> </div>
<div>Thank you.</div>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-the-proposed-treaty-for-the-protection-of-broadcasting-organizations'>https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-the-proposed-treaty-for-the-protection-of-broadcasting-organizations</a>
</p>
No publishersinhaAccess to KnowledgeWIPO2018-05-28T14:04:53ZBlog Entry36th SCCR: CIS Statement on Limitations and Exceptions Agenda
https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-limitations-and-exceptions-agenda
<b>Anubha Sinha, attending the 36th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from May 28, 2018 to June 1, 2018, made this statement on the Limitations and Exceptions agenda on behalf of CIS on Day 3, May 30. </b>
<p></p>
<p>Thank you, Mr. Chair.</p>
<p>I’m speaking on behalf of the Centre for Internet and
Society, India.</p>
<p>As we move forward on this agenda, we believe that for a
true balance to be realised, the rights of all users of copyrighted works will
have to be treated on par with those of the rightholders for purposes of
access to knowledge. We are disappointed
with the state of the limitations and exceptions in the broadcast treaty, that
made some progress yesterday (in terms of increasing rights).</p>
<p>Further, as we have submitted earlier, it is our belief that
the present international legal framework does not sufficiently address the
opportunities presented by new information and communication technologies. We
reiterate the need for open ended exceptions and limitations in this area - which
should also facilitate smooth cross border exchange of knowledge.</p>
<p>Thank you.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-limitations-and-exceptions-agenda'>https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-limitations-and-exceptions-agenda</a>
</p>
No publishersinhaLimitations & ExceptionsAccess to KnowledgeWIPO2018-05-31T09:43:08ZBlog Entry36th SCCR: CIS Statement on the Draft Action Plan for Libraries, Archives and Museums
https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-the-draft-action-plan-for-libraries-archives-and-museums
<b>Anubha Sinha, attending the 36th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from May 28, 2018 to June 1, 2018, made this statement on the Draft Action Plan on advancing limitations and exceptions for libraries, archives and Museums on behalf of CIS on Day 3, May 30. </b>
<p></p>
<p>Thank you, Mr. Chair.</p>
<p>I’m speaking on behalf of the Centre for Internet and
Society, India.</p>
<p>Very recently we concluded a qualitative study on archives in
India to examine how limitations and exceptions help them in achieving their
mission.</p>
<p>We found that the Indian Act goes to the extent of making an
exception for preservation for libraries.
To make up for unintended gaps in this clause, Indian archives and
museums owing to overlapping functions with libraries use this exception within
limits – which counts as an ‘implied’ application of the exception, as reported
by the ex- registar of the Indian Copyright Office in 2010 to WIPO. Undeniably,
an institutional approach has created unintended barriers for other
institutions performing the exact same function.</p>
<p>The draft action plan adopts a similar institutional
approach in its three different tracks for libraries, archives and museums. As
many of the core functions of these institutions overlap, and indeed they may
be an archive housed in a library or vice-a-versa, we must change our approach
to focus on the functions and not the formal identification of such
institutions.</p>
<p>Hence, I submit that the draft action plan be suitably
amended to reflect a purposive approach to drafting this treaty, and not create
artificial distinctions between institutions that do not reflect reality.</p>
<p>Thank you.</p>
<p><em>Note: Please find the Draft Action Plan <a class="external-link" href="http://www.wipo.int/meetings/en/details.jsp?meeting_id=46436">here</a> (SCCR/36/3).</em></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-the-draft-action-plan-for-libraries-archives-and-museums'>https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-the-draft-action-plan-for-libraries-archives-and-museums</a>
</p>
No publishersinhaLimitations & ExceptionsAccess to KnowledgeWIPO2018-05-31T09:47:15ZBlog EntryWIPO SCCR 41: Notes from Day 3 and Day 4
https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-3-and-day-4-1
<b>Day 3 and 4 saw the presentation of four studies conducted by external experts on music markets in various regions in the world and one study on rights of stage directors of theatrical productions. Day 4 saw member states sharing their positions on a proposal for creation of two rights 1) rights of stage directors of stage productions and 2) public lending right.
The Chair also presented the draft summary of the session upon its conclusion, on Day 4. This blog post shares the specific text under the broadcasting and limitations and exceptions agenda items, relevant from an access to knowledge perspective.</b>
<p><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29">1. On the issue of transparency and inclusivity in informal work on the 'protection of broadcasting organisations' agenda item, that emerged on <a class="external-link" href="https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-1">Day 1</a>, the Chair summarised:</span></p>
<p><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29">" </span><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29"><span id="docs-internal-guid-c9f5266b-7fff-0158-ea0e-f92bc8fc953c">The chair and vice chair and will take the views expressed during the session on the modalities of the informal work into consideration, including the need to uphold the principles of transparency and inclusivity."</span></span></p>
<p><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29">2. An 'information session' on impact of COVID was proposed by the Asia-pacific group on <a class="external-link" href="https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-2">Day 2</a>, the Chair summarised:<br /></span></p>
<p><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29"></span><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29">" The Committee requested the Secretariat to organise 1/2 day information session, footnote 1, the text of the footnote is as follows. The reference to half day is based on a meeting day with two three-hour sessions, in case SCCR/42 has truncated meeting days with single daily meeting sessions of up to three hours, the information session could take place during one entire day. </span></p>
<p><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29">So, back to the sentence after the footnote. I will repeat, the Committee requested the Secretariat to organise 1/2 day information session on the topic of the impact of COVID-19 on the <strong>cultural, creative and educational ecosystem including copyright, related rights and limitations and exceptions</strong> during the week of the 42nd session of the Committee. During the session following presentations from experts, member states will have the opportunity to exchange views and experiences. This process will be guided by a holistic and balanced approach. The information session will be separated from the rest of the agenda during the 42nd session."</span></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-3-and-day-4-1'>https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-3-and-day-4-1</a>
</p>
No publishersinhaBroadcast TreatyLimitations & ExceptionsAccess to KnowledgeWIPO2021-07-08T14:51:23ZBlog EntryIs the WIPO Treaty for Broadcasters Moving Forward at SCCR 27?
https://cis-india.org/news/knowledge-ecology-international-manon-ress-april-29-2014-is-wipo-treaty-for-broadcasters-moving-forward-at-sccr-27
<b>The WIPO treaty for the Protection of Broadcasting Organization: The Way Forward? </b>
<p style="text-align: justify; ">CIS statement at WIPO is <a class="external-link" href="http://keionline.org/node/1994">quoted in this post submitted by Manon Ress</a> to Knowledge Ecology International on April 29, 2014.</p>
<hr />
<p style="text-align: justify; ">On day 2 of Standing Committee on Copyright and Related Rights (SCCR) 27, it looks as if the US delegation was showing the SCCR delegates a "way forward" for a new treaty for broadcasting organizations. It seemed as if US diplomacy was working efficiently and the US proposal was gathering support. However, while the US proposal was indeed gathering support, public interest groups and copyright owners also became more vocal in their opposition to the proposal on the table.</p>
<p style="text-align: justify; ">Let me highlight aspects of the first 2 days (Monday and Tuesday 28-29 April, 2014) of discussions on the treaty. Wednesday half day is in principle devoted to conclusions on the first topic of the SCCR 27 and will be dealt with in a separate blogpost.</p>
<p style="text-align: justify; ">On Monday, led by Martin Moscoso, a most efficient Chair, the delegates moved quickly through the text (with many alternatives) and discussed the various technological platforms as well as the various forms of transmission for broadcasting. They decided to come up (later) with a matrix to, if not clarify at least simplify the work on the proposal. Monday was about the object of protection (what is a signal?) and Tuesday was about Article 9. which is the Article about rights. The issues were: what are the rights that will be granted or not granted to the broadcasters in the treaty.<br />Until lunch time Tuesday, the mood was quite optimistic and it was no longer "if there is a treaty" ...but when there is a treaty. Delegates were chatting everywhere and one could almost feel a treaty fever coming to the SCCR again.</p>
<p style="text-align: justify; ">The discussions were quite diplomatic but also technical. The Delegates are, after all, copyright and related rights experts obviously enjoying arguing and debating, subject matter protection, scope and of course nature of rights. Here is the Secretariat comprehensive review of Article 9 which include the many Exclusive rights that are on the table.</p>
<p style="text-align: justify; ">SECRETARIAT: this very high level. We have for Article 9 on page 8 two alternatives, alternative A and Alternative B. Then we have Article 9 in the annex, a proposal from India and then we also, of course, have the new proposal on, in that document, annex 6, I believe this is covered in Article 6 of the cablecasting organizations.Starting with the working text,Ssccr/27/2rev. Both of these Articles, they deal with exclusive rights to authorize by broadcasting organizations, the first one lists fewer rights it covers retransmission, performance, the use of a pre-broadcast signal with them and then with the performance (?), it leaves it as a matter of domestic law to determine the conditions under which this may be exercised provided that the protection is adequate and effective.</p>
<p style="text-align: justify; ">Alternative B has a more extensive list of exclusive rights that broadcasting organizations may authorize.</p>
<p style="text-align: justify; ">Fixation, direct, indirect production, retransmission by any means, communication to the public, making available, transmission for the reception by the public following fixation and making available to the public of the original and copies of fixations of broadcasts with respect to this alternative, there are two subparagraphs, two and three, that address some flexibilities. Two says that the indirect reproduction and retransmission rights may be a matter for domestic law where the protection of the right is claimed to determine the conditions under which it may be exercised provided that the protection is adequate and effective.</p>
<p style="text-align: justify; ">It is possible under 3 to deposit a notification with the Director General saying that instead of the exclusive right of authorizing providing for in subparagraphs 2, 4, 5, 6 and 7 there could be a right to prohibit with a notification.</p>
<p style="text-align: justify; ">Then there's a general final subparagraph talking about adequate, effective legal protection to signals. With the means of the protection being governed by legislation of the country where the protection is claimed.</p>
<p style="text-align: justify; ">The Annex includes various proposals and the Chair asked each proponents to explain:<br />For example, here is the US Intervention:<br />quote</p>
<p style="text-align: justify; ">The U.S. proposal for discussion is found in the annex at page 4, we first suggested this concept a year ago at intercessional meeting and fleshed it out in actual language at the last SCCR session. As we described then, the goal of our suggested language for discussion is to try to cut through the same debate of the scope of rights for this treaty that's been going on for in the range of 15 years now. What we were attempting to do was to identify a single core right, that would be very narrowly focused to address the fundamental concerns of broadcasters, to do so within the scope of the General Assemblies mandate to deal with signal protection, signal-based protection. As you see from the language, I won't go in a lot of detail, we have described this before, we would suggest that no post-fixation rights would be required at the international level, just protection for the signal itself and that after fixation we would be relying on protection for the content rather than the signal so not through this treaty, but through other treaties and through national laws.</p>
<p style="text-align: justify; ">So the way we formulated it was to focus on simultaneous or near simultaneous retransmission to the public of both the signal and the pre-broadcast signal because the broadcasters had made a case for the need of protection for pre-broadcast signal as well. As you can see from our proposed definition for discussion purposes we would define near simultaneous retransmission to be a transmission that's delayed only to the extent necessary to accommodate time differences or to facilitate the technical transmission of the signal. So recognizing that -- well sometimes there's a delay but we would be talking about delays of something more like seconds and hours rather than years.</p>
<p style="text-align: justify; ">What we would also like to do at this point, rather than spend many hours having everyone discuss again what their original proposals were, perhaps there's a way forward that this committee could consider. We do have a number of complex alternatives with multiple rights for Article 9 before us at this point.</p>
<p style="text-align: justify; ">And in the interest of being able to make progress, we would like to put forth an idea for consideration. In the discussion of our proposal for discussion purposes of this new approach we have not yet in the meetings that we have held since we first put it forward, we have not yet heard opposition to the Treaty covering at least that much and the main area of this agreement seems to be whether there should also be additional rights particularly relating to post-fixation uses. So one suggestion we put forward for consideration on how to move forward in this meeting would be to see if we can as a committee try to narrow the range of choices before us and there are a number of ways that this can be done. One possibility would be to say that one choice is the U.S. suggested approach in our proposal for discussion, and the other main choice would be to start with that, but then also add some version of the various post-fixation rights that other Delegations have proposed as the alternative. Maybe there's a way that the proponents could combine some of their catalog of rights into a shorter catalog or a single more general right dealing with post fixation uses and then although certainly the United States isn't in a position to agree to such a broader catalog, we would have a clearer idea of what the two main fundamental approaches are, and that would help us all clarify the situation and present the alternatives to be negotiated as we move forward and make it easier to look for potential compromises.</p>
<p style="text-align: justify; ">I don't know if that's entirely clear, and I would be I don't know if that's entirely clear, and I would be glad to describe in more detail what we were thinking about, but we put this out for everyone's consideration as a possible way to move forward rather than just to continue to go in circles with everyone explaining their own position. And again, you know, as we keep saying, we want to stress that all we're talking about again is a international minimum and that doesn't prevent anyone from having the entire catalog of rights that they may have in their current national system to preserving those rights and urging others to adopt them as well. We're looking for something that we can all agree to at international level.</p>
<p style="text-align: justify; ">This US Proposal which is about a narrow right (a signal-based approach) and also a way to limit the proposals on the table by having only two fundamental approaches on the table. The signal-based narrow approach or the US proposal by contrast with the catalog of rights proposed by the EU (and its supporters).</p>
<p>One had to note that what was in December for SCCR 26, an informal US proposal in the annex, had gathered many supporters. For example, the US proposal was supported in some ways by India:</p>
<p>INDIA: Good morning, Mr. President.<br /> I think Belarus, the Distinguished Delegate from Belarus and the Distinguished Delegate from the U.S. started the day with good morning, with good initiatives. We're open to discuss those issues. Going back to the comments made by the Distinguished Delegate from belarus, we do agree that no additional protection to the content should be given because content, the content, it is either author or the performer, asper the convention or the WCPT or the sin graphic producer, the producer of the sin graphic or the sound performing. Already the protection, is that.</p>
<p>What we need to protect here, it is the signal as said by the Distinguished Delegate of the United States also. The signal-based approach, that's what it says, the signal has to be protected. If you look at the definition of signal which India has given in annex, Article 5, page 1, it clearly said that the signal means an electronically generated carrier consisting of a specific program whether encrypted or not and then encryption, it is the dpm, we all know that, you know that that's the business model, the technical model followed by most. Coming to the program carried by the signal, that's the broadcast content.</p>
<p style="text-align: justify; ">So we have to see what exactly the signal is carrying the broadcast. It contains, you know, various types of Intellectual Property that's a copyrighted material that we can divide into four main categories. One is, of course, the program content, whether it is in-house production, created by -- acquired from the content owner, and then the other content is the advertisement, and then the moment you will see these two things, each has its own look and appearance just like CNN or BBC, the moment that content is on the screen, you know this is CNN content, you know that this is BBC content, even the same if their live casting, this, you see, in the Standing Committee, you know how it is different, it is a CNN journalist, a B cc journal. Then becomes the way they arrange the content, that's the full thing. The way it is presented. So, these are the four things, the signal, broadcast content, content, so various licensing and arguments are there. The advertising appearing between the few seconds in the BBC journal is different than what advertisement of the CNN and apart from the look and feel of the journal, and then coming to the proposal I would like to briefly explain and make sure we're given the Article 9. It is totally based on the signal-based approach in what we have explained here that the broadcasting organization hall enjoy the right to prohibit if done without authorization the rebroadcast of the signal through traditional procedure casting means, so rebroadcast not only the broadcast, the rebroadcast has to be protected. Here the question of fixation comes, you know, the fixation to be allowed only for the purposes of the rebroadcasting are in the near simultaneous broadcast, which was our Distinguished Delegate from the U.S. was telling, maybe deferred on the delayed -- unless you fix it, you don't do that. Coming to the simultaneous broadcasting, the U.S. Delegate was talking about, here simultaneous in the traditional sense only, it is clear it is a signal-base aid approach in the traditional sense, not the webcasting or simulcasting, what we need to protect here, if any unscrupulous guy, unauthorized manner taking this program-carrying signal, putting it over the internet, the investment of that broadcaster has to be protected. So that's what our proposal talks about, not about the simulcasting, live screaming and other platforms. So there -- otherwise, we will be including the webcasting and simulcasting in the traditional approach. In the traditional platform doesn't carry the webcasting of the simulcasting in the traditional sense and also in the webcasting. That's the simulcasting, doing the same thing, in two different platforms.The simulcasting can be allowed here in the traditional sense, if the BBC wants to, at the same time, broadcasting the same problem, the reach of the B cc in that territory would be different and it is different, they're covering different parts of the world.</p>
<p style="text-align: justify; ">So, that's what I would approach here. Then with that, the Distinguished Delegate from U.S. raising the post mixation rights, one significant until appears on the screen, there is l. C or led, nowadays the technology, it is crazy. It is on the screen. So only the content, not the signal. So the fixation of signal, then post-fixation don't come in the signal-based approach. What we need to do is the Protection of Country the signal and if fixation is coming, that fixation is allowed only for the rebroadcast, deferred or delayed broadcast purposes. We'll come back in these issues as the further discussion continues.<br /> Thank you. <br />And by by Mexico.<br /> > MEXICO: Thank you, Chairman. It gives me great pleasure to see you Chairing and you have the full support of my Delegation in all your work and moving forward in the topics of this committee such valuable work from Mexico. I would like to thank the Secretariat for the document that they provided us with in such a punctual manner. Thank you for helping us with our work. I would like to recall all Delegations. That we need to be seeking the establishment of general standards to feel more comfortable within the legal framework of these particular topic. We shouldn't be looking for participation on any individual basis because we will move forward with our work.</p>
<p style="text-align: justify; ">I recall that any international Treaty has to be based on general principles and not on details and the details should be stipulated in the respective domestic legislation of each Member State. On that note I would like to support the proposals from the Distinguished Delegate from the United States that we should, yes, move forward in this way with the work of this committee <br />And by Japan:<br /> JAPAN: Good morning, Mr. Chair.<br /> Good morning, everyone. I'm speaking on behalf of the Japanese Delegation.<br /> We're in the position to support the suggestion by the Distinguished Delegates from the U.S. to put to option related to scope of protection. With respect to scope protection, some Member States seems to find great value in wide variety of rights including fixation rights, including the right of production and the right of making available after the fixation. For such members, post-fixation rights should be included in this Treaty. On the other hand, some Member States are of the view that the minimum fixation rights, simultaneous or near simultaneous retransmission and the right of pre-broadcast is enough under this Treaty.</p>
<p style="text-align: justify; ">Here we would like to point out that in order to find the way forward in our discussion more flexible approach may be necessary. From our perspective one possible way while setting the common denominator among all Member States of subject matters for minimum mandatory protection, other rights which not all the members must -- most members think is necessary and this is treated as the subject matter for optional protection. Of course, even if we take such an approach we have to further discuss which rights should be mandatory protection and which rights should be optional protection.</p>
<p style="text-align: justify; ">And by South Africa:<br /> SOUTH AFRICA: Thank you very much, Mr. Chairman.<br /> In fact, I would like to associate myself with the previous speaker, Mexico and the U.S. I think it would be better to have just a general and another scope of rights for the broadcasters sips we're dealing with the signal-based approach and so as always to avoid having to include issues and list of issues that are covered by other Treaties. It may cause a problem in the long run in the sense that some Member States may find themselves want to be a part of this Treaty having to do a balancing act as to whether they need to join into this Treaty to be parties to the other Treaties or to the other issues that are being included in this particular Treaty. It would favor a very narrow, general scope of rights as I think the U.S. has captured that very well. I think it will help us to move forward. Otherwise we'll never -- a long, protracted kind of discussion and we have a very good experience in this, we have been looking at this for a very long time and part of the problems lie in this -- having a very long list of rights and so on, so on. I think that domestic legislation can do justice into the catalog of rights that Member States will now want to prescribe.</p>
<p style="text-align: justify; ">But things were not that easy with the EU:<br /> EUROPEAN UNION: Thank you very much, Mr. Chairman. Good morning to everyone. We tried to look at all the possibilities and options on the table and tried to think of some matrix as you proposed yesterday for which we have to find for both the object of protection and for the rights. Looking at what was presented and discussed today, we tried to put this into some kind of order also in response to the proposal by the Delegation of The United States. What I will present now is our understanding of where we understand with these discussions on various rights and, of course, there may be rates where we have not understood properly.</p>
<p style="text-align: justify; ">To us, it seems that there is a consensus in the room as to simultaneous, as to the right to authorize a prohibited or prohibit simultaneous retransmission by any means. As long as we talk about simultaneous retransmission we think from the discussions that took place here, but everybody agrees with simultaneous transmission, that should be covered by the catalog of rights.<br /> Then the other category, the important category here, are any transmissions from fixation. In our view, we should in a way separate the discussion on transmission from fixation from other post fixation points. I think often we use here the term simultaneous retransmission versus post-fixation rights. I think there is a bit of a more nuance to the situation here because we have the post fixation rights because of the reproduction and distribution which we'll talk about later. We have the core right here, the core right which is a retransmission from fixation.<br /> In the U.S. proposal there is also an element of such transmission from fixation as far as we understand, but it is limited. It is limited by technical means and limited in time because it is only to take account of time zones.</p>
<p style="text-align: justify; ">In other alternatives that we have on the table as far as we understand in the working document, alternative A, Alternative B, the proposal which was presented today by Belarus on behalf of some members of the CACEEC group, and to the extent that we understand the proposal of the Delegation of India, all these proposals include the right to authorize and prohibit only the right to prohibit in case of the proposal from India transmissions from fixation. We have -- atlas the way we see it, on one side we have the U.S. proposal with transmissions from fixations limited in some way and specifically in time, and then we have a number of proposals where we have transmissions from fixations included. For us, that would be the second block after the simultaneous retransmission, the second block to look at is this block of transmission from fixation. Within this block there are a number of Delegations that in the very explicit way include the so-called making available right. This is the case of Alternative B in the working document, this is the case of the proposal -- proposal presented by Belarus today and this of course has been the position of the European Union as well.</p>
<p style="text-align: justify; ">So that's for us, the second thing to look at, maybe to put in this matrix.</p>
<p style="text-align: justify; ">We would like to somehow maybe separate this block of transmissions from fixation from what we usually call post-fixation rights. When we move to post-fixation rights you have -- this is always interesting, helpful to look at the table proposed by by the Japanese Delegation, there are a number of rights so that you have the right of fixation itself, of course, that's not exactly post-fixation rights but I think belongs to this group of rights, reproduction and distribution and the right of public performance in places without accessible, for repayment of the fee. All these rights, we think belong to this third block. To be looked at.<br /> Of course, there are certain overlaps, when you look at the various proposals, some extend to all the rights, some extend to only some of these rights. In our view, these three groups are -- it is something to be looked at.</p>
<p style="text-align: justify; ">Further, I think if we look at this, if we create in matrix in that sense, it will help us to move further. Then, of course, for us, the next step of the discussion is to then understand in more detail various proposals and I'll just give a couple of examples. I think it is clear for everybody in the room to understand the proposal of the United States on near simultaneous transmission T will have to be very clear what is near simultaneous means, and especially since it is limited in time, in the U.S. today, they indicated, that limited in time not in terms of years, but rather in terms of hours or let's say shorter periods of time, it is very important to know how this would be, how it would be understood and how it works in practice. I think as regards to proposal from India, one thing for us is still maybe not entirely clear is this reference that in all cases the protection has to be subject to the extent of rights acquired from the owners of copyright and related rights. That's, for example, in terms of transmissions of sport events, which are not covered by copyright, we don't understand how this would be covered or whether the proposal of India is, but these would not be covered at all by these Treaties but there is a number of issues that we can go into more depth with each of these proposals. I think that the final, final block is what kind of rights are we talking about in terms of exclusive rights, rights to prohibit. That's all other rights.</p>
<p style="text-align: justify; ">In a number of these proposals, we have the right to offer us and prohibit, why for example in the proposal from India we have clearly right to prohibit. That's the final element of the matrix with which we have to look at because maybe not necessarily for all of the rights we have to have the same right. In the sense the same category of right. Maybe we can have some rights that are exclusive rights and for some rights, rights to prohibit, of course, we should not finally forget the protection for the pre-broadcast signal because we have not mentioned it today, but I think on that element also there is quite a broad consensus to have this as a right to the protection for pre-broadcasting. Thank you very much. <br />After quite a few confused and confusing interventions, the US took the floor again urging the delegates to separate the two main issues, what are we trying to protect and with what rights:<br />United States.</p>
<p style="text-align: justify; ">A lot of issues have been raised in the last round of interventions. I do think it is important to keep our minds fixed on the idea that there is two separate issues and one is the scope or object of protection and the other is what the nature of the rights are. Sometimes I think we're conflating them in the discussions, if we look at the matrix, the object of protection, what that is, I just wanted to note one more time while we've got the broadcasters in the room that I do think there is still some open questions that would be good to get answers to if not -- if it is not possible to get the answers this week, then the next time that this committee meets, and those were my questions about to what extent the uses of new technology described by the BBC and summarized in Japan's little summary document, to what extent the uses of new technology have become standard and how widely adopted they are among broadcasters in different countries and of different types and sizes. I think that would be helpful to know.</p>
<p style="text-align: justify; ">Also where the piracy takes place, where it is that those who are Pirating, getting the signals from would be useful to know as well and I partly raise these questions because to the extent we're debating the inclusion of or consideration of simulcasting, deferred, on demand transmission signals, in addition to the question of what extent the piracy problems would be covered by copyright in the content and another question with could be could this be seen an an issue of infringe.</p>
<p style="text-align: justify; ">Rather than the issue of protection. If we're protecting over the air broadcast signals, is the problem that the piracy of those signals is taking place using the simulcast versus using the actual over the air broadcast. That's why I see the issues as related, and I think it would be helpful to get more answers to those questions as we look at whatever matrix is prepared.</p>
<p style="text-align: justify; ">In terms In terms of the rights, the Article 9 issues, the EU asked a number of questions, I think the Delegate from the EU is correct that there's -- it is not just that the rights are prefixation and post fixation, there is probably at least three different types of things we're talking about. In the language the U.S. has proposed for discussion we're not presuming that the existence of a fixation at any point along the way negates the right, not at all. In fact, you certainly could have a simultaneous, near simultaneous near transmission of the public even where the retransmission is made from a fixation and indeed some technologies may require the use of a fixation to enable the retransmission.</p>
<p style="text-align: justify; ">I think what we're focusing on is the idea that there is no right to control the fixation itself or what is otherwise done with subsequent copies, including consumer copying, that would not fall within the right.</p>
<p style="text-align: justify; ">Then, just to say that we appreciated the comments from the Delegate of Brazil and also wanted to clarify our proposal was really a matter of process, not substance. We agree with Russia that we're looking to move this forward and so even though our view is that a single right rather than a combination is the most likely way to be able to make progress and move the debate forward, and achieve an outcome, we also think we could make progress here this week if we could simplify the full range of rights that are on the table and figure out a way to present two options for consideration and further negotiation.</p>
<p style="text-align: justify; ">That would only be for purposes of the negotiation rather than an agreement on substance at this point, that that's the right approach so then each of us could still be able to convince other Member States of our own view or to find some way to accommodate the concerns once we see what the two approaches clearly are.</p>
<p style="text-align: justify; ">It is a matter of process to be able to move forward from the complex text that we currently have before us.</p>
<p style="text-align: justify; ">Then just finally, we also agree that we still have open the exact wording of what the right would be in Article 9, is it a right to authorize, exclusive right to authorize, a right to prohibit, prevent, maybe at this point in time we need to keep those things in brackets also for further consideration, negotiation, including the issue razed by the E.U. Delegate that possibly the exact wording may be different depending on what the right is that we're talking about.</p>
<p style="text-align: justify; ">Following the US intervention, India discussed the very many different kind of piracy. Then, the Chair gave the floor to the NGOs and before lunch, the NAB (the demandeur for the treaty) made some clarifications related to the Monday presentation by the BBC (the red button or on demand webcast of BBC programs). Which was followed by KEI which stated:<br />quote.</p>
<p style="text-align: justify; ">This is not a treaty about copyright piracy but a special ride for broadcasters. I think it is not a good idea to sort of refer to cases where there is already a right, the copyright owners have (kei) unless you make it relevant to what's discussed here this week. IP rights are a form of regulation, and they create monopolies, rights to exclude, new layers of rights to clear, a shrinking of the public domain, and more obligations for consumers, libraries, businesses to pay more money not to copyright holders,but to the distributors of content. Don't go overboard. Don't approach this like you're a rich relative giving gifts to nephews and nieces, interventions should be narrow and only where they're actually needed to solve a problem like signal piracy to the extent that it is understood and can be remedied through an instrument, or to achieve a predictable, a desired redistribution of income to broadcasters. You're in this case extending rights to entirely new beneficiaries, it is not just people that broadcast in radio and television which was what the Rome convention addressed and make the service available that no one could charge for. Now you're talking about pay services protected by under legal protections such as regulatory provisions, contracts, theft of service laws, you're talking about cable tv service shut off if you didn't pay, cable -- satellite services that are shut off if you don't pay, you're talking about a wide-range of internet delivery issues and people are talking about post fixation rights.</p>
<p style="text-align: justify; ">You have what the BBC has described, you have people talking about services now provided under services in the United States such as hulu using platforms like these decidings, tablet computers, the explosion of services, and most of the people doing most of the innovative services outside of BBC are not here demanding a WIPO treaty but doing things, it is working, exploding and it is happening without this new form of regulation. So, I would say conclude by saying that the Rome convention or the WPPT or the Beijing treaty should not be the basis of the rights. Those rights already exist, they address different issues. You're talking about something new today and this new thing should be justified by some coherent explanation of a problem you are trying to solve and should be comfortable because of the cost of the regulation you're introducing to the information society is somehow justified by the benefit.</p>
<p style="text-align: justify; ">The Chair called then on the American Society of Archivists:</p>
<p style="text-align: justify; ">Thank you, Mr. Chair. On behalf of the society of American Archivists, the largest organization of archivists, we want to commend you for the continued wise chairmanship of the srcr and thank you to the Secretariat for the excellent support of the Committee's work. For decades archives included not just paper records but also important sound and video recordings, many of which have come from broadcasters. These are invaluable documents for connecting society to its past. Think of a major event in the past 15 years, the fall of the Berlin wall or the collapse of the twin towers on September 11th, without the video images that were created, these are the documents that will provide the stuff of history that connects future users to the archives. Thus, regardless of whatever measures are put into place to provide the signal protection that broadcasters need, the new rights should not add any further layers on the already existing copyright protection that exists in the content. Over the long passage of time the archives have to span, and given the vigories of institutions that disappear with regularly, adding a new right on broadcast content would add imher rationally for the orphan work in providing abscess to the dock ministry sector that is such an important part of society's historical record. After the lunch break, eIFL took the floor. The giddy mood of "moving forward" that we had witnessed in the morning was slowly changing (the momentum keep changing said a broadcaster sitting behind me).<br />[...]<br /> eIFL: As stated at previous sessions of this Committee we see no compelling public policy reason for a new international treatment on the protection of broadcast organisations because piracy of broadcast signals is adequately dealt with under existing laws and treaties as outlined in the earlier statement by KEI. And the creation of a new layer of rights that affects access to content is of great concern to librarians because it imposes an additional barrier on access to knowledge especially to content in the public domain.</p>
<p style="text-align: justify; ">As stated which the Delegation of Ecuador, a new layer of rights will in addition to creating problems for users create froshes rights holders of content that will impact on their ability to freely licensed their works. Libraries have practical experience of such over protection caused by multiple layers of rights. For example, a library in northern Europe wanted to publish a sound recording from their archive that was originally broadcast in the 1950s. The recording was taken from a rebroadcast in the 1980s. And all of the performers'rights had expired and the authors waived their fees due to the importance of the work, the library had to pay $10,000 for the permission to use the recording because the signal protection applied also to the the retransmission.</p>
<p style="text-align: justify; ">So for many libraries, as you can imagine, such costs are out of the question. As a result, socially valuable works remain inaccessible in libraries and archives, depriving the public of the enjoyment of their work. So Distinguished Delegates, please consider the costs to taxpayers and society as well as the perceived benefits of this proposed treaty. Thank you.</p>
<p style="text-align: justify; ">After the Libraries, --except for the European Broadcasters under ACT which came to support the NAB and the proposed treaty--, other consumer/public interest groups such as TACD and CIS (India) followed by many many right holders (copyright holders or as they say at WIPO content owners) such as IFPI, FILA, BCC and FIAPS (representing authors, performers, music producers) took the floor one after the other to express their strong opposition to the proposed treaty. The main point for the Music industry representative was that before the broadcasters get a new exclusive rights, they should first recognize the rights of the music producers and pay for music that they broadcast. While this is actually happening in many countries already, the US broadcasters do not pay and that should change first according to the IFPI. Finally (and that was a surprise for many), a representative from Direct TV attending the SCCR for the first time expressed its strong concerns for a treaty that would give broadcasters exclusive rights and thus more power to control the media market.</p>
<p style="text-align: justify; ">Here is the Indian NGO CIS statement:<br /> We have some concerns regarding the intended scope and language of Article 9 in Working Document SCCR/27/2 Rev. We believe that this expands the scope of this proposed treaty and is likely to have the effect of granting broadcasters rights over the content being carried and not just the signal. On this issue, we have two brief observations to make:</p>
<p style="text-align: justify; ">First- Article 9 envisages fixation and post fixation rights for broadcasting organizations- for instance among others, those of reproduction, distribution and public performance This, we believe is not within the mandate of this Committee, being as it is, inconsistent with a signal based approach.</p>
<p style="text-align: justify; ">Second- we express our reservations on the inclusion of “communication to the public” reflected in Article 9 Alternative B, which also relates to the definition of communication to the public under alternative to d of Article 5 of this document. Communication to the public is an element of copyright and governs the content layer, as distinct from the “broadcast” or “transmission” of a signal.</p>
<p style="text-align: justify; ">Therefore, attempts to regulate “communication to the public” would not be consistent with a signal based approach.Notes during the excellent IFPI statement as well as statements by the other copyright owners will be in my next blog for your enjoyment.</p>
<p>
For more details visit <a href='https://cis-india.org/news/knowledge-ecology-international-manon-ress-april-29-2014-is-wipo-treaty-for-broadcasters-moving-forward-at-sccr-27'>https://cis-india.org/news/knowledge-ecology-international-manon-ress-april-29-2014-is-wipo-treaty-for-broadcasters-moving-forward-at-sccr-27</a>
</p>
No publisherpraskrishnaAccess to KnowledgeWIPO2014-05-02T11:58:15ZNews ItemWIPO SCCR 24 Pre-lunch Text (July 19, 2012)
https://cis-india.org/a2k/2012-07-19-sccr24-pre-lunch.txt
<b>This is a rough transcript of the WIPO-SCCR discussions.</b>
<p>
For more details visit <a href='https://cis-india.org/a2k/2012-07-19-sccr24-pre-lunch.txt'>https://cis-india.org/a2k/2012-07-19-sccr24-pre-lunch.txt</a>
</p>
No publisherpraskrishnaIntellectual Property RightsCopyrightAccess to KnowledgeWIPO2012-07-25T03:36:37ZFileWIPO SCCR 24 Post-lunch Text (July 19, 2012)
https://cis-india.org/a2k/2012-07-19-sccr24-post-lunch.txt
<b>This is a rough transcript of the WIPO-SCCR discussions.</b>
<p>
For more details visit <a href='https://cis-india.org/a2k/2012-07-19-sccr24-post-lunch.txt'>https://cis-india.org/a2k/2012-07-19-sccr24-post-lunch.txt</a>
</p>
No publisherpraskrishnaCopyrightAccess to KnowledgeWIPO2012-07-25T03:33:29ZFileWIPO SCCR 24 Pre-lunch Text (July 20, 2012)
https://cis-india.org/a2k/2012-07-20-sccr24-pre-lunch.txt
<b>This is a rough transcript of the WIPO-SCCR discussions.</b>
<p>
For more details visit <a href='https://cis-india.org/a2k/2012-07-20-sccr24-pre-lunch.txt'>https://cis-india.org/a2k/2012-07-20-sccr24-pre-lunch.txt</a>
</p>
No publisherpraskrishnaIntellectual Property RightsCopyrightAccess to KnowledgeWIPO2012-07-25T03:36:08ZFile