The Centre for Internet and Society
https://cis-india.org
These are the search results for the query, showing results 31 to 45.
Second Meeting of the Expert Committee on WIPO
https://cis-india.org/a2k/news/second-meeting-of-the-expert-committee-on-wipo
<b>The second meeting of the Expert Committee on WIPO was held in the Committee Room (6th floor) of Ministry of Information & Broadcasting, Shastri Bhawan, New Delhi on November 2, 2015. The meeting was held under the chairmanship of Special Secretary (I&B). Nehaa Chaudhari and Anubha Sinha attended the meeting.</b>
<p>Download the minutes of the first meeting <a href="https://cis-india.org/a2k/blogs/minutes-of-the-first-meeting-of-expert-committee-of-wipo" class="internal-link"><b>here</b></a>.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/news/second-meeting-of-the-expert-committee-on-wipo'>https://cis-india.org/a2k/news/second-meeting-of-the-expert-committee-on-wipo</a>
</p>
No publisherpraskrishnaAccess to KnowledgeWIPO2015-11-29T08:27:54ZNews ItemStatement by the Centre for Internet and Society on the Broadcast Treaty at SCCR 30
https://cis-india.org/a2k/blogs/statement-by-the-centre-for-internet-and-society-india-on-the-broadcast-treaty-at-sccr-30
<b>The 30th Session of the World Intellectual Property Organization's ("WIPO") Standing Committee on Copyright and Related Rights ("SCCR") is underway in Geneva from 29 June, 2015 to 03 July, 2015. While CIS was unable to attend this meeting, we have the following statement to make on negotiations on the Proposed Treaty for Broadcasting Organizations.</b>
<p style="text-align: justify; ">This statement was prepared on behalf of CIS by Nehaa Chaudhari. Many thanks to Pranesh Prakash and Amulya Purushothama for their inputs.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">Mister Chair,</p>
<p style="text-align: justify; ">Our intervention will speak to the presentations made by broadcasting organizations on Day 1 and Member and Group Statements on Days 1 and 2.</p>
<p style="text-align: justify; ">First, Mr. Chair, generally on technical panels- If <i>this</i> is the manner in which this Committee will be appraised of new developments, without prejudice to our reservations about this ad-hoc manner itself, we <i>strongly</i> suggest that other interest groups and stakeholders be provided a similar opportunity to present their side of the story, in front of this Committee, for one entire day. Industry representatives, including those from telecommunications, information technology, consumers electronics, and performers- and not just various public interest NGOs have been expressing reservations and concerns about this Treaty from at least as far back as 2006, if not earlier. We appreciate Group B’s ask in their introductory statement to “continue to hear the voices of the real world” – We only ask that you award all stakeholders an equivalent, if not equal opportunity to be heard in the manner that you have the broadcasters; without privileging the interests of the broadcasters above the others. There must be a recognition of the rights of other stakeholders including content owners- not just in the Treaty as noted by India yesterday, but also in the discussions leading up to it.</p>
<p style="text-align: justify; ">Second, Mr. Chair, on Technical Background Paper document SCCR 7/8 – which you had flagged off as relevant for this session in your summary of SCCR 29 – but, of course, I stand to be corrected if I have understood incorrectly. Mr. Chair, this document is more than a decade old – it seems to have seen no updates since 2002, and even in that form, it is wanting. The document excludes from its scope the rationale for the treaty as well as the scope for protection, which we find problematic, especially given as these have been among the most contentious topics in this Committee. Additionally in only dealing primarily with the Rome Convention with but a passing reference to other international instruments, if at all, it presents an incomplete overview of the legal framework already available to broadcasters. I also have other comments to this document, which I will send in writing. We’d strongly urge that an updated version of this document be presented to this Committee so that we can have a more accurate discussion, just like the one on market and technology trends has been updated as SCCR 30/5.</p>
<p style="text-align: justify; ">Third, Mr. Chair, on the presentations and statements themselves. A reason oft cited in this Committee, Mr. Chair, has been the need to protect the underlying investment and the purported loss of revenue. From their presentations on Day 1 Mr. Chair, it seems to us that the broadcasters are doing perfectly alright <i>without </i>a Broadcast Treaty. Mr. Knapp for IHS in fact said that <b>“</b><b>Despite digitization, TV homes, paid TV homes are growing globally”, </b>stating also, that there was a very high average revenue per user in North America and a <b>“double digit growth in the pay TV sector”</b> in other regions, which meant a <b>“fairly healthy industry despite all the digital disruption side”.</b> We have also heard from TV Globo who told us of the progress made in advertising and pay TV and smartphone penetration in Brazil, and from Zee Telefilms from India who spoke of a booming broadcasting industry. <b></b></p>
<p style="text-align: justify; ">Mr. Chair, Nothing we have heard so far addresses three important questions – why is there a need for a separate right? Why are protections under the Rome Convention inadequate? While piracy might well be an issue, why can’t it be covered under existing copyright law – all of which comes down to why we’re discussing the creation of a para copyright regime for broadcasting organizations.</p>
<p style="text-align: justify; ">From the Caribbean Broadcasting Union, we heard about emerging technologies and the challenges due to piracy. There was also a mention of significant investment – but if that is to be the basis for this treaty, we would ask that detailed reports of these investments and losses also be placed before this Committee. Also, none of this addresses the lacunae in the Rome Convention or existing international copyright law.</p>
<p style="text-align: justify; ">Mr. Chair, we have repeatedly heard from Group B and the European Union on the ‘significant economic value of broadcasting’, but, this economic value has had international law recognition for a while now. While the CEBS group, Japan and Russia speak highly of technological advancements to justify the need for the Broadcast Treaty, there has still been no discussion on the inadequacy of existing international law to address these technological advancements. There needs to be something more that justifies this attempt to give broadcasters an additional layer of rights. It might be useful to conduct a comprehensive study on signal theft and piracy and the legal frameworks in every member state to deal with signal theft and piracy, and an updated study on the international legal framework as well. This Committee has precedent on such an exercise in Prof. Kenneth Crews’ study on limitations and exceptions for libraries and archives that has been tabled at this SCCR.</p>
<p style="text-align: justify; ">Mr. Chair, this para copyright we’re trying to create, especially without all stakeholders being heard equally, would in effect severely limit any competition that broadcasting organizations would face from the Internet and other emerging technologies; which is undesirable for any market, besides access to free knowledge and information, as well put by the delegation of Iran.</p>
<p style="text-align: justify; ">Thank you.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/statement-by-the-centre-for-internet-and-society-india-on-the-broadcast-treaty-at-sccr-30'>https://cis-india.org/a2k/blogs/statement-by-the-centre-for-internet-and-society-india-on-the-broadcast-treaty-at-sccr-30</a>
</p>
No publishernehaaAccess to KnowledgeWIPO2015-07-02T01:20:38ZBlog EntryComments on the Protection of Broadcasting Organizations: Technical Background Paper Prepared by the WIPO Secretariat
https://cis-india.org/a2k/blogs/comments-on-the-protection-of-broadcasting-organizations-technical-background-paper
<b>Technical Background Paper prepared by the WIPO Secretariat in relation to the Broadcast Treaty (“Technical Background Paper) provides information on new and emerging technologies and on legal developments in the broadcasting sector. This Technical Background Paper will be discussed at the upcoming 30th session of the SCCR in Geneva on 29th June- 3rd July 2015. The Ministry of Information and Broadcasting, Government of India had called for comments on the same. This is a submission made by Nehaa Chaudhari and Amulya Purushothama on behalf of the Centre for Internet and Society in this regard. </b>
<p style="text-align: justify; ">We thank Amulya Purushothama for her assistance with research and other assistance on this subject. 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. Click to view the <a href="https://cis-india.org/a2k/blogs/comments-on-protection-of-broadcasting-organizations.pdf" class="external-link">PDF</a>.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>I. </b> <b>Preliminary</b></p>
<p style="text-align: justify; ">1. This submission presents preliminary comments by the Centre for Internet and Society ("CIS") on the Technical Background Paper prepared by the WIPO Secretariat in relation to the Proposed WIPO Treaty on the Protection of Broadcasting Organisations ("Broadcast Treaty").</p>
<p style="text-align: justify; ">2. This submission is based on the Technical Background Paper Submitted By the Secretariat at the Seventh Session of the Standing Committee on Copyright and Related Rights ("SCCR") held at Geneva from May 13 to 17 2002 (SCCR/7/8) dated April 4, 2002.<a href="#_ftn1" name="_ftnref1">[1]</a></p>
<p style="text-align: justify; ">3. CIS commends the Ministry of Information and Broadcasting, Government of India for its efforts at seeking inputs from various stakeholders prior to framing India's response to this document. CIS is thankful for the opportunity to provide this detailed submission.</p>
<p style="text-align: justify; "><b>II. </b> <b>Overview</b></p>
<p style="text-align: justify; "><b>Governing Principles</b></p>
<p style="text-align: justify; ">4. CIS is a non-governmental organization engaged in research and policy work in the areas of, inter alia, access to knowledge and openness. <a href="#_ftn2" name="_ftnref2">[2]</a> CIS values the fundamental principles of justice, equality, freedom and economic development. This detailed submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's National Interest at the International Level. Accordingly, the comments in this submission aim to further these principles and are limited to those sections of the document in question that most directly have an impact on these values.</p>
<p style="text-align: justify; "><b>Adoption of a Signals-Based Approach</b></p>
<p style="text-align: justify; ">5. CIS has consistently recommended the adoption of a Broadcast Treaty consistent with the signals based approach, <a href="#_ftn3" name="_ftnref3">[3]</a> in consonance with the 2007 mandate of the WIPO General Assembly, binding on the SCCR. In this submission as well, we re-iterate our commitment to the same.</p>
<p style="text-align: justify; "><b>III. </b> <b>Detailed Comments</b></p>
<p style="text-align: justify; "><b>On the 'Introduction'</b></p>
<p style="text-align: justify; ">6. The Technical Background Paper was prepared twelve years ago, in 2002. Accordingly, more recent legal and technological developments, national approaches and industry practices would need to be addressed. Accordingly, it is submitted that at SCCR 30, the Indian delegation request that the SCCR be presented with an updated study. This would be in line with the stated aims of the Technical Background Paper itself, i.e., to focus on technological changes that affect the activities of broadcasting organizations.<a href="#_ftn4" name="_ftnref4">[4]</a> Further CIS believes that the current Technical Background Paper reads as a justification for the Broadcast Treaty as opposed to a neutral study. It is submitted that an updated version of this paper with including <i>inter alia, </i>some of the safeguards discussed later in this submission might address this imbalance.</p>
<p style="text-align: justify; ">7. The Technical Background Paper excludes from its scope the rationale for protection as well as the scope of protection for broadcasters. <a href="#_ftn5" name="_ftnref5">[5]</a> CIS is of the opinion that this limits the Technical Background Paper - issues such as the justification/ need for the treaty, the scope of protection to be offered and the kind of protection, go to the very heart of the issue and must be discussed in the Technical Background Paper if it is to inform a meaningful debate on the subject.</p>
<p style="text-align: justify; ">8. CIS further believes that the very need for a Broadcast Treaty has not been clearly established in the Technical Background Paper. As we have indicated earlier,<a href="#_ftn6" name="_ftnref6">[6]</a> investments made by broadcasters in broadcasting infrastructure, licensing of copyrighted works and creation of copyrighted works are already protected under existing legal systems. While the licensing and creation of copyrighted works are protected under copyright law, the investment in broadcasting infrastructure might be construed to be a "broadcast right", which is enshrined <a href="#_ftn7" name="_ftnref7">[7]</a> in the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961.<a href="#_ftn8" name="_ftnref8">[8]</a> A detailed discussion on the existing legal framework is available in the next section of this submission.</p>
<p style="text-align: justify; "><b>On 'Broadcasting Organizations and the Rome Convention'</b></p>
<p style="text-align: justify; "><span>The Legal Framework Applicable to Broadcasting</span></p>
<p style="text-align: justify; ">9. This part of the Technical Background Paper discusses in detail the various provisions of the Rome Convention. However, it is noted that there is a very limited discussion of legal developments that have happened since the Rome Convention.<a href="#_ftn9" name="_ftnref9">[9]</a></p>
<p style="text-align: justify; ">10. CIS believes that for a complete understanding of the legal framework applicable to broadcasting, it is important that the Technical Background Paper document the evolution of international law on the subject since the Rome Convention. This is particularly critical when the need for this treaty itself is disputed.<a href="#_ftn10" name="_ftnref10">[10]</a> In this regard CIS believes that the Technical Background Paper is inadequate and must be revised and updated to include other legal developments<a href="#_ftn11" name="_ftnref11">[11]</a> including but not limited to the WIPO Copyright Treaty, 1996 ("WCT"), WIPO Performances and Phonograms Treaty, 1996 ("WPPT"), the Convention Relating to the Distribution of Programme -Carrying Signals Transmitted by Satellite, 1974, ("Brussels Convention") and the Beijing Treaty on Audio-Visual Performances, 2012 ("Beijing Treaty").</p>
<p style="text-align: justify; ">11. CIS further believes that for a complete understanding of the legal framework applicable to broadcasting, it is imperative for the Technical Background Paper to document national level legal developments in all member countries on this issue. Precedent for this exercise exists in the form of the study conducted in related to the Proposed International Legal Instrument on Limitations and Exceptions for Libraries and Archives. <a href="#_ftn12" name="_ftnref12">[12]</a> In this regard CIS calls for a comprehensive study on legislation surrounding broadcasters rights - both as related rights and as a separate right - and on the nature and extent of protection offered to broadcasters under the national legislations of all member states.</p>
<p style="text-align: justify; ">12. CIS believes that for a complete understanding of the legal framework applicable to broadcasting, it is important for the Technical Background Paper to further document any other widely followed industry practices and contractual arrangements that might have developed in the field. In this regard CIS believes that the present Background Paper should be edited and the above mentioned information be made available to the SCCR.</p>
<p style="text-align: justify; "><span>Signal, Content and Program</span></p>
<p style="text-align: justify; ">13. This part of the Technical Background Paper documents how a signal is defined and how it is different from the content carried on the signal. Further this part also states that it has been generally indicated that protections should be granted to broadcasting organisations for their signals independent of the copyright and related rights protection of the content.<a href="#_ftn13" name="_ftnref13">[13]</a> In this regard CIS submits that definition of a signal is well settled under various international legal instruments, which have adopted uniform terminology that excludes content underlying the signal.<a href="#_ftn14" name="_ftnref14">[14]</a> It is submitted that the Technical Background Paper must be edited to include all of this information to allow for informed debate on the matter. It is further submitted that technologically neutral terminology must be avoided and only terminology based on the "signals based approach" decided at the 2007 WIPO General Assembly must be adopted. <a href="#_ftn15" name="_ftnref15">[15]</a> It is lastly submitted that any deviation from the signals based approach would lead to a Para-copyright regime for broadcaster's rights which would substantially harm public interest and increase costs to access to knowledge. <a href="#_ftn16" name="_ftnref16">[16]</a></p>
<p style="text-align: justify; ">14. This part of the Technical Background Paper also avers "during the discussions in the Standing Committee, it has generally been indicated that protection should be granted to broadcasting organizations for their signals independently of the copyright and related rights protection of the content." <a href="#_ftn17" name="_ftnref17">[17]</a> It is submitted that this statement is not entirely accurate. Several Member States and Observers have submitted at various sessions of the SCCR that any protection granted must be limited to signal to address signal theft only; and that any other sort of protection would create a legal fiction that would lead to uncertainty, the creation of multiple rights holders, a Para-copyright regime and increased costs for legitimate use of copyrighted material.<a href="#_ftn18" name="_ftnref18">[18]</a></p>
<p style="text-align: justify; "><b>On 'Legal Issues to be Considered'</b></p>
<p style="text-align: justify; ">15. CIS reiterates the impetus to fully establish the need and the justification for the Broadcast Treaty, before considering other substantive legal issues. CIS strongly believes that the need for the treaty has not been fully established.<a href="#_ftn19" name="_ftnref19">[19]</a></p>
<p style="text-align: justify; ">16. It is also suggested that a recommendation be made for the Technical Background Paper to include a section on limitations and exceptions as 'legal issues to be considered', critical from the perspective of the protection of freedom of speech and expression and access to knowledge.</p>
<p style="text-align: justify; "><span>Broadcasting and Piracy</span></p>
<p style="text-align: justify; ">17. This part of the document discusses the signal piracy and its effect on markets in developing and developed countries. <a href="#_ftn20" name="_ftnref20">[20]</a></p>
<p style="text-align: justify; ">18. CIS submits that since the justification for this treaty is based on signal piracy, this section of the Technical Background Paper ought to be more detailed. Illustratively, this section must be updated to include studies on the losses that occur due to signal piracy in various countries, and the exact lacunae in the current legal system that render it inadequate to address this issue.</p>
<p style="text-align: justify; "><span>Program-Carrying Signals</span></p>
<p style="text-align: justify; ">19. In this part the Technical Background Paper discusses program carrying signals that are sent from point to point before the broadcast that could possibly be pirated.<a href="#_ftn21" name="_ftnref21">[21]</a></p>
<p style="text-align: justify; ">20. CIS believes that the claim that pre-broadcast signals have been stolen before<a href="#_ftn22" name="_ftnref22">[22]</a> must be backed up by adequate data and studies. As of this document they remain assertions. CIS further believes that any steps taken in this regard must adopt the 'signals based approach' mandated by the 2007 WIPO General Assembly<a href="#_ftn23" name="_ftnref23">[23]</a> and ensure that the underlying content is not subject to an additional layer of protection.<a href="#_ftn24" name="_ftnref24">[24]</a></p>
<p style="text-align: justify; "><span>The Object of Protection</span></p>
<p style="text-align: justify; ">21. This part of the paper provides a cursory overview of the different definitions adopted to define the object of protection, i.e., the broadcast under the Rome Convention, the Brussels Convention, and the WPPT.<a href="#_ftn25" name="_ftnref25">[25]</a></p>
<p style="text-align: justify; ">22. CIS believes that a more in-depth study of definitions of broadcast under all international instruments <a href="#_ftn26" name="_ftnref26">[26]</a>is called for. CIS further believes that in keeping with the 2007 WIPO General Assembly mandate as mentioned above, 'signals based approach' is to be adopted which would preclude technologically neutral terminology from being adopted in the object of the protection.</p>
<p style="text-align: justify; "><span>The Subject of Protection</span></p>
<p style="text-align: justify; ">23. This part of the paper provides a cursory overview of the different definitions adopted to define the subject of protection, i.e., the broadcast under the Rome Convention, the Brussels Convention, the WPPT and the ITU Radio Regulations.<a href="#_ftn27" name="_ftnref27">[27]</a></p>
<p style="text-align: justify; ">24. CIS believes that the mandate of 'signals based approach' as mentioned in the 2007 WIPO General Assembly mandate must be adhered to (as stated earlier) and only those entities that broadcast signals and are therefore vulnerable to signal theft must be considered beneficiaries under the Broadcast Treaty. As stated above, technologically neutral terminology would fall outside of this mandate. CIS believes that this should be made clear in the Technical Background Paper.</p>
<p style="text-align: justify; "><b>IV. </b> <b>Concluding Observations</b></p>
<p style="text-align: justify; ">25. In conclusion, CIS submits the following recommendations on the Technical Background Paper.</p>
<p style="text-align: justify; ">a) Updating the Technical Background Paper to include legal and technological developments to better inform the discussion on the Broadcast Treaty.</p>
<p style="text-align: justify; ">b) Updating the Technical Background Paper with an expanded scope that explores all issues relevant to discussion including the scope for protection and the justification for protection.</p>
<p style="text-align: justify; ">c) Updating the Technical Background Paper to include provisions made under all relevant international conventions, even those that have come into existence after the Rome Convention.</p>
<p style="text-align: justify; ">d) Updating the Technical Background Paper to include widely prevalent industry practices that could affect the discussion around the Broadcast Treaty.</p>
<p style="text-align: justify; ">e) Conducting a comprehensive study on legislations regarding broadcasters' rights and broadcasting under all national regimes to enable a more informed discussion on the possible effects of the proposed treaty.</p>
<p style="text-align: justify; ">f) Updating the Technical Background Paper to include a discussion on limitations and exceptions under the proposed treaty.</p>
<p style="text-align: justify; ">g) Conducting a separate study on the extent of signal piracy and losses incurred due to signal piracy including a section that traces the causes behind signal piracy and explores whether or not a legal lacunae is to blame.</p>
<p style="text-align: justify; ">h) Updating the Technical Background Paper keeping in mind the WIPO 2007 General Assembly mandate on 'signals based approach' especially in parts relating to object, subject and scope of protection.</p>
<p style="text-align: justify; "><b>V. </b> <b>Other Resources </b></p>
<p style="text-align: justify; "><b>Statements made by CIS to the SCCR on Broadcast Treaty</b></p>
<p style="text-align: justify; ">1. 29<sup>th</sup> Session of the WIPO SCCR :CIS 2<sup>nd</sup> (brief) Intervention on the Broadcast Treaty, <a href="http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty"> http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">2. CIS Intervention on Proposed Treaty of Broadcasting Organizations, SCCR 29: <a href="http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations"> http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">3. CIS Statement at SCCR 28 on the Proposed Treaty for Protection of Broadcasting Organisations, Available at: <a href="http://lists.keionline.org/pipermail/a2k_lists.keionline.org/2014-July/002720.html"> http://lists.keionline.org/pipermail/a2k_lists.keionline.org/2014-July/002720.html </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">4. CIS Statement at 27<sup>th</sup> SCCR on the WIPO Proposed Treaty for the Protection of Broadcasting Organisations, Available at: <a href="http://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations"> http://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">5. CIS' Statement at SCCR 24 on WIPO Broadcast Treaty, Available at: <a href="http://cis-india.org/a2k/blogs/cis-statement-sccr24-broadcast-treaty">http://cis-india.org/a2k/blogs/cis-statement-sccr24-broadcast-treaty</a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">6. Statement of CIS on the WIPO Broadcast Treaty at the 23<sup>rd</sup> SCCR, Available at: <a href="http://cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement">http://cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement</a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">7. Statement of CIS, India on the WIPO Broadcast Treaty at the 22<sup>nd</sup> SCCR, Available at: <a href="http://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement">http://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement</a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">8. CIS Statement on the WIPO Broadcast Treaty at SCCR 19, Available at: <a href="http://cis-india.org/a2k/blogs/sccr19-broadcast-treaty">http://cis-india.org/a2k/blogs/sccr19-broadcast-treaty</a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; "><b>Submissions made by CIS on the Broadcast Treaty</b></p>
<p style="text-align: justify; ">1. CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, 21 December 2014, Available at: <a href="http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty"> http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">2. CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Braodcast Treaty Compared to Other International Conventions, 11 December 2014, Available at: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">3. CIS Comments to the Ministry of Human Resource Development on the Proposed WIPO Treaty for the Protection of Broadcasting Organisations, 7 December 2013, Available at: <a href="http://cis-india.org/a2k/blogs/comments-to-hrd-ministry-on-wipo-treaty-for-protection-of-broadcasting-organizations"> http://cis-india.org/a2k/blogs/comments-to-hrd-ministry-on-wipo-treaty-for-protection-of-broadcasting-organizations </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">4. Comments to MHRD on WIPO Broadcast Treaty, March 2013, Available at: <a href="http://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty">http://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty</a></p>
<p style="text-align: justify; ">5. Comments on the Broadcast Treaty and Exceptions and Limitations for Libraries and Archives, 29 November 2012, Available at: <a href="http://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives"> http://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">6. Comments to the Ministry on WIPO Broadcast Treaty, March 2011, Available at: <a href="http://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011"> http://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011 </a> (last accessed 25 June, 2015)</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; "><b>On behalf of the Centre for Internet and Society,</b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>Nehaa Chaudhari Amulya Purushothama</b></p>
<p style="text-align: justify; "><b>Lawyer/Programme Officer Lawyer/Research Assistant</b></p>
<p style="text-align: justify; "><a href="mailto:nehaa@cis-india.org"><b>nehaa@cis-india.org</b></a> <b> </b> <a href="mailto:amulyaindavar@gmail.com"><b>amulyaindavar@gmail.com</b></a> <b> </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b> </b></p>
<div style="text-align: justify; ">
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> Hereafter "Technical Background Paper"</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> See <a href="http://www.cis-india.org">www.cis-india.org</a> (last accessed 25 June, 2015) for details about CIS' work.</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.3.</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> Id at p.2.</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> See for Instance CIS' Statement at SCCR 24 on the WIPO Broadcast Treaty, Available at: <a href="http://cis-india.org/a2k/blog/cis-statement-sccr24-broadcast-treaty"> http://cis-india.org/a2k/blog/cis-statement-sccr24-broadcast-treaty </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> Id.</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> Hereafter, the Rome Convention.</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.4-5</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> See 'Overview' of this submission.</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> See for instance CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: <a href="http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79"> http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 </a> (last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> See for example, Study on Copyright Limitations and Exceptions for Libraries and Archives, Available at: <a href="http://www.wpio.int/copyright/en/limitations/libraries_and_archives.html"> www.wpio.int/copyright/en/limitations/libraries_and_archives.html </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.5</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at <a href="http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79"> http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 </a> : http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79(last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 </a> (last accessed 25 June, 2015)</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.5</p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> For details see CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: <a href="http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79"> http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 </a> (last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> See comments under Introduction in this submission.</p>
</div>
<div id="ftn20">
<p><a href="#_ftnref20" name="_ftn20">[20]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15</p>
</div>
<div id="ftn21">
<p><a href="#_ftnref21" name="_ftn21">[21]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15-16</p>
</div>
<div id="ftn22">
<p><a href="#_ftnref22" name="_ftn22">[22]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15</p>
</div>
<div id="ftn23">
<p><a href="#_ftnref23" name="_ftn23">[23]</a> WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;</p>
</div>
<div id="ftn24">
<p><a href="#_ftnref24" name="_ftn24">[24]</a> CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: <a href="http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79"> http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn25">
<p><a href="#_ftnref25" name="_ftn25">[25]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.16-17</p>
</div>
<div id="ftn26">
<p><a href="#_ftnref26" name="_ftn26">[26]</a> CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn27">
<p><a href="#_ftnref27" name="_ftn27">[27]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.17-18</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/comments-on-the-protection-of-broadcasting-organizations-technical-background-paper'>https://cis-india.org/a2k/blogs/comments-on-the-protection-of-broadcasting-organizations-technical-background-paper</a>
</p>
No publisherNehaa Chaudhari and Amulya PurushothamaIntellectual Property RightsAccess to KnowledgeWIPO2015-09-03T01:47:59ZBlog EntryNational IPR Policy Series : India's National IPR Policy - What Would WIPO Think?
https://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think
<b>As part of the National IPR Policy Series, CIS is evaluating how India's National IPR Policy framework and process holds up to WIPO's suggestions. In this note, Varun Baliga and Nehaa Chaudhari examine in particular, the functioning of the IPR Think Tank and the first draft of the National Policy in light of the WIPO framework and the principles it encapsulates. </b>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; ">This note is a brief overview of the approach set out by the World Intellectual Property Organization ("WIPO") <a href="http://www.wipo.int/ipstrategies/en/">for the development of National IPR Strategies by various countries</a>. This note also compares WIPO's approach to the approach adopted by the IPR Think Tank ("Think Tank") in the formulation of India's National IPR Policy This note is only an academic exercise and is not to be construed as a recommendation of the procedure set out by WIPO for the development of National IPR Policies/Strategies.</p>
<p style="text-align: justify; "><b> </b></p>
<h3><b>An Overview of WIPO's Approach</b></h3>
<p style="text-align: justify; ">WIPO's suggested model of a National IPR Policy operates at three levels - The Process, Baseline Questionnaire and Benchmarking Indicators. <a href="#_ftn1" name="_ftnref1">[1]</a> On process, WIPO suggests an 8-step procedure in developing a National IP Strategy that lays clear emphasis on both continuous consultation and methodological rigour in data collection. The initial 'Assessment Mission' is aimed at preparing the ground for the formulation of the policy, and includes meetings with stakeholders so as to involve interested entities from the very beginning. <a href="#_ftn2" name="_ftnref2">[2]</a> Given that an IPR policy is necessarily a political exercise, WIPO recommends that the mission be used to secure the political capital and commitment that would be necessary to see the exercise through. Then, a 'project (national) team' is constituted for an IP audit and develop an understanding of the economic, social and political infrastructure as context for the formulation of the policy. It is also stated that, in most instances, the team will include an international consultant. This is further complemented by 'Desk Research' and 'Data Collection' using the 'Baseline Survey Questionnaire', an integrated data collection tool developed by WIPO. The desk research is an assessment of the existing IP policies coupled with the country's broader goals - developmental, economic and social, so as to conceptualize a policy that is in conformity with the goals.</p>
<p style="text-align: justify; ">The data collection through the Baseline Survey Questionnaire is meant to complement the IP audit to understand the "weaknesses, strengths and potential" of "the current IP situation in the country". This audit and data collection drive is then buttressed with 'National Consultations' to validate the data and conclusions reached thus far. WIPO is unambiguous that the aim of these consultations is to enable a wide range of parties to exercise meaningful ownership and agency over the process of conceptualizing a national IPR policy. With the inputs received from the process so far, WIPO recommends that the drafting of the strategy commence on the basis of the "suggestions, opinions and recommendations received during the national consultation process". The drafting should operate at the level of each sector and the country as a whole. This is followed by a 'second round of stakeholder consultations'. These serve a dual purpose: to validate the findings of the first draft and to verify whether the first round of inputs are reflected in the draft itself. Finally, an 'implementation framework' including "implementation structures, a resource mobilization strategy, and monitoring and evaluation mechanisms".</p>
<h3><b>Assessing the First Draft of India's National IPR Policy:</b></h3>
<p style="text-align: justify; ">Now, we look at the National IPR Policy in India in light of the WIPO framework outlined above. First we look at the Assessment Mission or process followed prior to the announcement of any IPR policy. Then, we look at what assessment was undertaken of the existing IP laws in the country. Finally, the stakeholders meetings conducted so far are analysed in comparison to the purpose of such consultations that WIPO envisages.</p>
<p style="text-align: justify; "><b> </b></p>
<ol>
<li style="text-align: justify; "><b>Assessment Mission</b>: There are no reports of an initial meeting having been held to explain the scope and methodology of the process. However, the IPR Think Tank invited comments before the release of the draft national policy in order to seek suggestions on the tentative policy. It should be noted that these comments have not been published.</li>
<li style="text-align: justify; "><b>Assessment of existing IP framework</b>: The overview of the existing IP system in the draft policy covers just the various IP legislations and the relevant government departments. It then proceeds to underscore elements in Indian law that enhance and incentivize stricter standards for IP protection. For example, it illustrated the future challenge in copyright law as being enforcement on digital platforms. It identifies a need for concerted action to increase patent filings by Indians as over "75% of patent filings are by foreign entities". Further, even when it mentions India's ratification of the 2013 Marrakesh Treaty ensuring access to copyrighted works for persons with visual impairment, it is in the context of further reinforcement of copyright.Therefore, it is clear that the perspective of the draft policy towards India's existing framework downplays provisions ensuring access and protecting the public interest and focusses on more expansive IP protection, narrower exceptions and an overall priority for IP rights over the public interest in accessing knowledge. The purpose of the IP audit and desk research, "to obtain a clear picture of the current IP situation…, its weaknesses, strengths and potential.", has not been done justice by this audit weighted in favour of rightsholders. Finally, the Baseline Survey Questionnaire -an integrated tool for extensive data collection - has no mention in the draft policy. There is no indication that it has been utilized for the purpose of data collection, if any.</li>
<li style="text-align: justify; "><b>On stakeholder meetings</b>: The Draft National IP Policy was released on 24 December 2014. A DIPP Press Release called for comments and suggestions to the First Draft to be sent in by January 30<sup>th</sup>, 2015.<a href="#_ftn3" name="_ftnref3">[3]</a> The first set of stakeholder meetings were only held on February 5<sup>th</sup> and 6<sup>th</sup>, 2015.<a href="#_ftn4" name="_ftnref4">[4]</a> This is at odds with what the WIPO recommends. The very first step in the WIPO framework is the 'Assessment Mission' which involves meetings with stakeholders that explains the scope and methodology of the process, presumably to elicit views. There is no publicly available information that suggests that this has taken place. Second, the national consultation <i>precedes </i>the drafting of the strategy with the explicit goal of validating the IP audit findings and eliciting views on the drafting of the strategy. This is not intended to be a merely formalistic exercise but meaningful involvement of stakeholders in the whole process of conceptualizing a national IPR policy. Now, the DIPP has solicited comments prior to the publication of the first draft. However, mere solicitation of comments without meaningful consultation is a mere shadow of the objective of the WIPO recommendation of national consultations - "..to actively participate in the validation of the IP audit findings and the formulation of the National IP Strategy..to enhance a wide a range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy." Therefore, the principled objective of the consultation process as outlined by WIPO - enabling stakeholders to exercise a sense of agency over the policy document and drafting process - was severely undermined. Furthermore, WIPO suggests that the drafting of the policy should be based on the findings and suggestions submitted by the stakeholders. Given that comments have been solicited before the policy was drafted, it is incumbent upon the Think Tank to make comments submitted public. <a href="#_ftn5" name="_ftnref5">[5]</a></li>
</ol>
<p style="text-align: justify; ">The following table summarizes the comparison in the WIPO approach to that of the IPR Think Tank. Apart from the procedure outlined thus far, the table touches upon other points of comparison that are sure to inform the continued functioning of the Think Tank in the road towards a National IPR Policy.</p>
<div style="text-align: justify; ">
<table class="vertical listing">
<tbody>
<tr>
<td>
<p><b>WIPO Suggestion</b></p>
</td>
<td>
<p><b>India's National IP Policy Framework - Comparison</b></p>
</td>
</tr>
<tr>
<td>
<p style="text-align: justify; ">WIPO has also suggested a number of justifications that may be advanced for the development of a national IP strategy. <a href="#_ftn6" name="_ftnref6">[6]</a> These justifications will help in grounding the policy in a clear, lucid set of objectives. These are:</p>
<ol>
<li>Need to consolidate sectoral policies</li>
<li>National long-term development agenda</li>
<li>Benchmarking and best practices</li>
<li>International trade obligations</li>
<li>Strengthening the national IP office</li>
</ol></td>
<td>
<p>India's Draft National IP Policy provides for the following objectives:<a href="#_ftn7" name="_ftnref7">[7]</a></p>
<ol>
<li>Create awareness of the economic, social and cultural benefits of IP (<b>IP Awareness and Promotion</b>)</li>
<li>Stimulate the creation and growth of IP (<b>Creation of IP</b>)</li>
<li style="text-align: justify; ">Strong and effective laws that protect IP rights in a manner consistent with national priorities and intl obligations and that balance the interests of the rights owners and the public (<b>Legal and Legislative Framework</b>)</li>
<li style="text-align: justify; ">Strengthen IP administration and management of IP rights (<b>IP Administration and Management</b>)</li>
<li style="text-align: justify; ">Augment Commercialization of IP rights; valuation, licensing and technology transfer (<b>Commercialization of IP</b>)</li>
<li style="text-align: justify; ">Strengthen enforcement and adjudicatory mechanisms to protect and combat against IP rights violations ( <b>Enforcement and Adjudication</b>)</li>
<li style="text-align: justify; "><b>Human Capital Development in IP</b></li>
</ol></td>
</tr>
<tr>
<td>
<p>The second prong of WIPO's suggestions is devoted entirely to the Baseline Survey Questionnaire. There are seven clusters identified:</p>
<ol>
<li>IP Administration and Management</li>
<li style="text-align: justify; ">Generation of IP by universities, research organizations, business, industry, SMEs and individuals</li>
<li style="text-align: justify; ">Commercialization of IP and technology transfer by universities, research organization, business, industry, SMEs and individuals</li>
<li>Copyright and copyright industries</li>
<li>Plan breeders; rights (plant variety protection)</li>
<li>Enforcement of IP rights</li>
<li>IP and public policy</li>
</ol></td>
<td>
<p style="text-align: justify; ">While there are elements of these clusters in the draft policy, there is no mention of them in the context of the method of a Baseline Survey Questionnaire. This means that the data collection was not undertaken in compliance with WIPO's recommendations and means that there was either no data collected or the results are undermined.</p>
</td>
</tr>
<tr>
<td>
<p style="text-align: justify; ">Finally, the WIPO framework places great emphasis on the implementation of the policy.<a href="#_ftn8" name="_ftnref8">[8]</a> It has elements of this in all three prongs. It requires the policy to have an effective framework for its implementation that includes resource mobilization and monitoring and evaluation mechanisms.<a href="#_ftn9" name="_ftnref9">[9]</a></p>
</td>
<td>
<p>The issue of implementation is covered by the draft policy at two levels:</p>
<p>1. <b>Implementation of IP rights</b> - This includes</p>
<p style="text-align: justify; ">a) Placing the burden on individuals to protect their IP rights as IP is an "essentially private rights [sic]". <a href="#_ftn10" name="_ftnref10">[10]</a> The state merely plays the role of the facilitator for protection.</p>
<p style="text-align: justify; ">b) Enacting rules and setting up institutions. Examples include the Intellectual Property Rights (Imported Goods) Enforcement Rules 2007 framed to implement border control measures as well as the Copyright Enforcement Advisory Council. <a href="#_ftn11" name="_ftnref11">[11]</a> Further, strengthening enforcement mechanisms includes the establishment of a centralized 'Multi-Agency Task Force' for coordination between the raft of agencies that India has. <a href="#_ftn12" name="_ftnref12">[12]</a></p>
<p style="text-align: justify; ">c) Facilitate IP dispute resolution through the designation of a specialized patent bench in select High Courts. It also calls for the creation of regional benches of the IPAB in all five regions where IPOs are located as well as an increase in the powers of the IPAB. <a href="#_ftn13" name="_ftnref13">[13]</a></p>
<p>2. <b>Implementation of the Policy itself</b> -<a href="#_ftn14" name="_ftnref14">[14]</a></p>
<p style="text-align: justify; ">a) It suggests that the integration of the policy with stated government programmes such as 'Make in India' and 'Digital India' would enable its implementation.</p>
<p style="text-align: justify; ">b) The establishment of IP Promotion and Development Council (IPPDC) which will open IP Promotion and Development Units (IPPDU) for promoting IP awareness, protection and utlilization.</p>
<p>c) IP support to MSMEs.</p>
<p>d) Technology Acquisition and Development Fund under the Manufacturing Policy for licensing or procuring patented technologies.</p>
<p>e) Manufacturing units will be encouraged to set up IP cells in their own units and make IP a part of their corporate strategy.</p>
<p>f) Integrate with government initiatives.</p>
</td>
</tr>
</tbody>
</table>
</div>
<h3><b>Conclusion: Testing Times Ahead</b></h3>
<p style="text-align: justify; ">The IPR Think Tank has not been consistent with WIPO's recommendations on drafting a National IPR Policy. In terms of data analysis, the Think Tank has not displayed an iota of the analytical rigour and data collection that WIPO believes is necessary to understand both the state of IP in the country and devise effective means of responding to lacunae. Further, while consultations have been held with civil society, these have been lacking in two respects. They have not followed the timelines prescribed by WIPO insofar as consultations have happened only after the release of the first draft. As a result, the Think Tank has failed in actualizing the <i>raison d'etre</i> behind national consultations - "enhance a wide range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy". Finally, this piece is not an endorsement of WIPO or its recommendations but a mere acknowledgement of the role WIPO has played in this exercise. In the final analysis, India has fallen short of adhering to the principles reflected in the WIPO framework.</p>
<div style="text-align: justify; ">
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> http://www.wipo.int/ipstrategies/en/methodology/</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> The stakeholders that WIPO mentions are "..inter alia, the national IP office(s), relevant government departments, universities and research institutes, SMEs, inventors, creators, legal practitioners, non-governmental organizations (NGOs)".</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> http://spicyip.com/2015/01/examining-the-draft-national-ip-policy-stakeholder-meetings-to-be-held.html</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 11.</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> National IPR Policy (First Draft), p. 6-23.</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 9.</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> <i>Ibid</i> .</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> <i>Ibid</i> , p. 20.</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> <i>Ibid</i> , p. 20.</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> <i>Ibid</i> , p. 21.</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> <i>Ibid</i> , p. 22.</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> <i>Ibid</i> , p. 25-26.</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think'>https://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think</a>
</p>
No publishernehaaIntellectual Property RightsAccess to KnowledgeWIPO2015-07-02T17:47:58ZBlog Entry29th Session of the WIPO SCCR: Statement on the Limitations and Exceptions for Education, Teaching, Research Institutions and Persons with Disabilities
https://cis-india.org/a2k/blogs/cis-statement-on-limitations-and-exceptions-for-education-teaching-research-institutions-and-persons-with-disabilities
<b>At the 29th session of WIPO's SCCR, the Chair, Martin Moscoso, requested NGOs to send in their statements on limitations and exceptions for education, teaching, research institutions and persons with disabilities in writing, to be placed on the record. Nehaa Chaudhari, on behalf of the Centre for Internet and Society (CIS) sent in this written statement.</b>
<p style="text-align: justify; ">Thank you very much, Mr. Chair.</p>
<p style="text-align: justify; ">As we have always maintained in the past sessions of this Committee, the Centre for Internet and Society strongly believes that everyone, regardless of borders and barriers, either physical, or those created by time, distance and costs should have access to knowledge and education.</p>
<p style="text-align: justify; ">To that end, we strongly support the proposal made by India, earlier, on continuing constructive work in this area. We also welcome the suggestion by the Indian delegation on a synthesis of these issues (facilitated by an expert, through the Chair), so that we can have a constructive discussion on these issues.</p>
<p style="text-align: justify; ">Mr. Chair, we are very mindful of the fact that there exists a very real, very demonstrable need for limitations and exceptions for education, teaching and research institutions and also for the benefit of persons with disabilities. There is also an equally crucial need to ensure that these limitations and exceptions are open ended and are appropriate for the digital environment; a conversation we believe that is imperative for Member Nations to take forward, definitely more so than one around granting a 'para-copyright' for organizations that already enjoy a great deal of protection under existing treaties, and are far less vulnerable than beneficiaries of these limitations and exceptions.</p>
<p style="text-align: justify; ">We thank the United States of America for their document- SCCR/27/8 on the Objectives and Principles for Exceptions and Limitations for Educational, Teaching and Research Institutions. We appreciate the recognition of the copyright system in the dissemination of works of authorship as well as the critical role that it plays in the promotion of educational, teaching and research objectives. We also appreciate the acknowledgement of a balance of rights and exceptions and limitations sustaining the role and activities of educational, teaching and research institutions.</p>
<p style="text-align: justify; ">However, we do believe that for a true balance to be achieved between rights and limitations and exceptions, the rights of the users of copyrighted works for the purposes of access to knowledge will have to be treated on par with those of the rights holders themselves. We believe that for this to be possible, measures will have to be taken to ensure international interoperability of limitations and exceptions and international standards suitable to address emerging and present issues of the digital environment will have to be developed. As we have submitted before this Committee earlier, it is our belief that the present international legal framework does not sufficiently address the opportunities presented by these information and communication technologies. Mr. Chair, we reiterate the need for open ended exceptions and limitations in this area, that will facilitate a cross border exchange of books and other learning material.</p>
<p style="text-align: justify; ">As a first step towards this end, we urge Member States to collaborate on and engage in substantive discussions building on existing Working Documents presently before this Committee. We look forward to an engaging discussion and providing all our complete support as we move forward on this very important agenda item.</p>
<p style="text-align: justify; ">Thank you, Mister Chair.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-statement-on-limitations-and-exceptions-for-education-teaching-research-institutions-and-persons-with-disabilities'>https://cis-india.org/a2k/blogs/cis-statement-on-limitations-and-exceptions-for-education-teaching-research-institutions-and-persons-with-disabilities</a>
</p>
No publishernehaaLimitations & ExceptionsAccess to KnowledgeWIPO2014-12-20T13:40:19ZBlog EntryWIPO 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 ItemAt 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 Item29th Session of the WIPO SCCR: CIS Intervention : Questions to Prof. Kenneth Crews on his Updated Study on Limitations and Exceptions for Libraries and Archives
https://cis-india.org/a2k/blogs/cis-intervention-questions-to-prof-kenneth-crews-on-limitations-and-exceptions-for-libraries-and-archives
<b>Nehaa Chaudhari on behalf of the Centre for Internet and Society (CIS) on December 11 during one of the sessions in WIPO asked two questions to Prof. Kenneth Crews. </b>
<p style="text-align: justify; ">In 2008, WIPO commissioned <a class="external-link" href="http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192">a study on Limitations and Exceptions for Libraries and Archives</a>.This was prepared by Prof. Kenneth Crews. On December 10-11, 2014, at SCCR 29, Prof. Crews presented <a class="external-link" href="http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192">an updated (2014) version of this study</a> and addressed comments and questions from Member States and Observers.</p>
<hr />
<p style="text-align: justify; ">CIS Statement:<br /><br />Thank you, Madam Chair.<br /><br />Thank you very much, Professor Crews for your presentation yesterday, and for this comprehensive study on Limitations and Exceptions for Libraries and Archives, very timely, and very important to us, from the perspective of access to knowledge and information.<br /><br />I have two questions:</p>
<p style="text-align: justify; ">My first question: Did you find, in your examination, that, in terms of/ or on the question of limitations and exceptions, did you find, that there was an equal or equitable treatment of digital resources in comparison to resources available in more traditional formats? And if not, where do you think that lever of change lies to ensure that fair dealing provisions are extended equitably to the digital environment as well?<br /><br />My second question, is on the interoperability of Limitations and Exceptions: Given that copyright is a very national thing, and, as your study has also well established, countries have a whole range of very diverse approaches and practices on Limitations and Exceptions; but also given that we live in an increasingly globalized world, we need a system that is interoperable with respect to the trans-boundary movement of works, with as little friction as possible, both- in the physical as well as in the digital environments. So, what did your examination show us of how interoperable- or not- the range of Limitations and Exceptions actually are?<br /><br />Those are my two questions.<br /><br />Thank you very much.</p>
<h3 style="text-align: justify; ">Response by Prof. Kenneth Crews:</h3>
<p style="text-align: justify; ">Thank you very much. On the second question, I'm afraid I might mind myself only repeating some of the concepts that have already said about transborder and really about in the statutes anyway, a lack of recognition of transborder. And the transborder concept, so I will add this piece to the conversation, the transborder concept seldom if ever appears in these library exceptions to the extent that we are going to find it in copyright law or some other part of a national law it may very well be over in the import/export kind -- area of the law. But that also goes to the interoperability which think we have answered a few times just this sort -- the lack of exact harmonization and as others have reminded me I have said before that I may not be a fan of exact precise harmonization and indeed it may not be possible or even desirable. But some degree of harmonization can help with that interoperability. Interesting question, you do -- you did raise a new point about digital. We have talked several times in this conversation about use of digital technologies in the exercise of the rights of use under the exception. However what I think you were asking about is the ability to apply the exception to works that are digital in the first place that are what we call born digital and that's a very interesting question. The statutes do not address that. Sometimes you will see a statute that refers to -- that says it applies to all these different kinds of works but not computer software. That tells you somebody was thinking it shouldn't apply to software but somehow software is different and there are problems with that. We know that software has changed and been incorporated in to many different works. But we generally see a statute almost always see a statute that's about books or archival materials or some other kind of work without specifying the technology. So can it apply to an e-book in addition to the paper book? The statutes don't go there. They don't sort that out. So in my common law tradition I look at that and see that as a question for interpretation. In a civil code system I might look at it and see it a little bit more firmly for lack of a better word about what the scope of that word book, for example, really means.</p>
<p style="text-align: justify; ">Really good question. And it is one that the statutes have not picked up on.</p>
<p style="text-align: justify; ">Thank you very much.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-intervention-questions-to-prof-kenneth-crews-on-limitations-and-exceptions-for-libraries-and-archives'>https://cis-india.org/a2k/blogs/cis-intervention-questions-to-prof-kenneth-crews-on-limitations-and-exceptions-for-libraries-and-archives</a>
</p>
No publishernehaaIntellectual Property RightsAccess to KnowledgeWIPO2014-12-14T02:56:46ZBlog EntrySCCR 29 Libraries, Archives and Public Interest NGOs in Q&A with Dr. Crews
https://cis-india.org/a2k/news/knowledge-ecology-international-sccr-29-december-11-2014-libraries-archives-public-interest-ngos-q-a-with-dr-crews
<b>While the many publishers representatives took the floor to explain that there are truly no problems with limitations and exceptions for libraries and archives (and anyway according to them if there are problems that can be solved with licenses), libraries & archives as well as public interest groups make their case: the committee must continue its work on limitations and exceptions for libraries and archives and find solutions.</b>
<p style="text-align: justify; ">This blog entry was <a class="external-link" href="http://keionline.org/node/2147">published on the website of Knowledge Ecology International</a> on December 11, 2014.</p>
<hr />
<p style="text-align: justify; ">Here are excerpts from some of the interventions:</p>
<p style="text-align: justify; "><b>Hasmik Galstyan, Yerevan, Armenia speaking for the Electronic Information for LIbraries (eIFL.net)</b>:</p>
<blockquote style="text-align: justify; ">>> EIFL: I'm speaking on behalf of the electronic information for libraries and that works with libraries and library con sort Sha in more than 60 developing and transition economy countries. We thank the Secretariat for commissioning the updated study that provided a comprehensive overview in the IP law. We thank professor crews for his clear presentation.
<p>The report contains positives and negatives from our Point of View. The positives include the fact that law makers are to some degree responding to the need for legal change and a small number of countries have over the last six years created new exceptions especially with regard to digital services. These changes are to be commended. On the other hand, it is discouraging that 18% of countries including five EIFL partner countries have new exceptions for libraries and over one-third located almost totally in the developing world still do not have an exception allowing libraries to make copies of their works for the users. The trend regarding digital library services doesn't look good. Even for states that introduce amendment 2008 digital is barred in 50% in some cases for preservation and it states with anti-circumvention protection while some have applied library exceptions as mentioned by professor crews half of the countries have provided no library exceptions. So while a small number of countries are moving ahead and reforming their copyright laws the digital divide is being perpetuated at a time when libraries everywhere are adopting new technologies and Developing Countries are rapidly moving to mobile. My question is how can the situation be addressed. How can WIPO as an UN agency with a commitment to work with Developing Countries to enhance their participation in the global innovation economy most effectively support countries to be at the forefront of digital developments. To ensure that our libraries that are working hard to support education and development are not operating with one hand tied behind our backs.</p>
<p>My second question is considering that between 2008 and 2014 only a handful of countries have been implemented made changes benefitting libraries and their users and imagining that the current rate of support for a change stays the same, how long do you think it will take before all WIPO Member States have exceptions good enough to support library activities in the Digital Age? And the last question, please. Libraries collections contain materials of unique cultural and historical significance to people in other countries to the national border changes shared languages and a host of other reasons. In addition collaboration among researchers today is international. Therefore libraries increasingly need to send and receive information across borders. In our examination of copyright laws how do they accommodate or not these activities? Thank you very much.</p>
</blockquote>
<p style="text-align: justify; ">The libraries representatives were echoed by archives representatives. <b>William Maher, University of Illinois at Urbana-Champaign, representing the Society of America Archivists</b>.</p>
<blockquote style="text-align: justify; ">Thank you for producing a study that brings such clarity to the quite confusing maze of the laws that librarians and archivists must work with. Archives has been mentioned a lot over the past couple of days but I am only the second archivist to be addressing this issue at SCCR. Archivists know that the general populations does not understand what archives are and how and why we do what we do. However, it seems reasonable that those who draft copyright laws should understand that archives are fundamentally about the unpublished legacy of humankind. Yet, when looking at the 70 or so countries in the 2014 study, archives are seriously overlooked–Despite whatever minimal improvement for libraries, archives have been left out of 53% of the exceptions for preservation and 72 % of the exceptions for copying for research. Is this absence of provisions also reflected in the fact that the laws lack definitions of archives? Can this oversight be read as meaning that archives do not matter to the nations copyright system, or does it mean that copyright should not matter to archives?<br /> >> KENNETH CREWS: Well, thank you very much. Yes, I think you have also heard me speak very strongly about the distinct interests of archives and maybe I should say even more important the distinct interests of our citizens in archives and in the works that they are -- the work that they are doing. And their ability to use these copyright provisions for the benefit of the country and of its citizens. I certainly can't emphasize that enough. So I -- I'm not going to read in to the lack of reference to archives. The kind of meaning that you are asking about. But instead I think we can certainly say that it makes you wonder if archives have been recognized by the drafters of many of these statutes and if in the case of following through on the example of the models influencing domestic law it really is have archives come to the attention of the individuals who have been responsible for developing some of the models. So I believe very strongly that the future statutes in individual countries and the drafting of different kinds of instruments or models that may come from WIPO or any other organization need to encompass archives. And the -- because the preservation and research access and other kinds of beneficial uses of archival material goes directly to the preservation of the culture and the history of our countries and our people. And it is vital that we be able to do that and keep archives at the table. And I thank you very much for being here.</blockquote>
<p style="text-align: justify; ">Another stakeholder, <b>Nehaa Chaudhari, Lawyer, Programme Officer at the Centre for Internet and Society</b> questioned Dr. Crews on provisions regarding digital works:</p>
<blockquote style="text-align: justify; ">CIS: Thank you Madame Chair. Thank you very much professor crews for your presentation yesterday and this comprehensive study on libraries and archives. Very timely and very important to us from the [...] access to knowledge and information most critically.
<p>I have two questions. My first question: did you find in your examination that in terms of or on the question of limitations and exceptions did you find that there was an equal or equitable treatment of digital resources in comparison to resources available in more traditional formats? And if not, where do you think that are lever of change lies to ensure that fair use of fair dealing provisions are extended e equitably to the digital environment as well.</p>
<p>My second question is on the interoperability of limitations and exceptions. Given that copyright is a very national thing and as your study has also well established countries have a whole range of veridy veers approaches and practices on limitations and exceptions. But also given the fact that we live in an increasingly globalized world we need a system that is interoperable with respect to the transboundary movement of works with as little fiction as possible. Again both in the physical as well as in the digital environments. So what did your examination show of how interoperable or not the range of limitations and exceptions actually have. Those are my two questions. Thank you very much.</p>
<p>> KENNETH CREWS: Thank you very much. On the second question, I'm afraid I might mind myself only repeating some of the concepts that have already said about transborder and really about in the statutes anyway, a lack of recognition of transborder. And the transborder concept, so I will add this piece to the conversation, the transborder concept seldom if ever appears in these library exceptions to the extent that we are going to find it in copyright law or some other part of a national law it may very well be over in the import/export kind -- area of the law. But that also goes to the interoperability which think we have answered a few times just this sort -- the lack of exact harmonization and as others have reminded me I have said before that I may not be a fan of exact precise harmonization and indeed it may not be possible or even desirable. But some degree of harmonization can help with that interoperability. Interesting question, you do -- you did raise a new point about digital. We have talked several times in this conversation about use of digital technologies in the exercise of the rights of use under the exception. However what I think you were asking about is the ability to apply the exception to works that are digital in the first place that are what we call born digital and that's a very interesting question. The statutes do not address that. Sometimes you will see a statute that refers to -- that says it applies to all these different kinds of works but not computer software. That tells you somebody was thinking it shouldn't apply to software but somehow software is different and there are problems with that. We know that software has changed and been incorporated in to many different works. But we generally see a statute almost always see a statute that's about books or archival materials or some other kind of work without specifying the technology. So can it apply to an e-book in addition to the paper book? The statutes don't go there. They don't sort that out.</p>
<p>So in my common law tradition I look at that and see that as a question for interpretation. In<br /> a civil code system I might look at it and see it a little bit more firmly for lack of a better word<br /> about what the scope of that word book, for example, really means. Really good question. And it is one that the statutes have not picked up on. Thank you very much.</p>
</blockquote>
<p style="text-align: justify; ">Finally, the <b>TransAtlantic Consumer Dialogue (TACD) representative David Hammerstein</b> made the following political and philosophical intervention:</p>
<blockquote style="text-align: justify; ">Thank you very much. Thank you Mr. Crews for your presentation. I would like to say a few general words. Internet and the digital obviously is global. Copyright laws are national. Economic power is global. Politics is national. This is very relevant to our discussion.
<p>And other relevant factor is that copyright law and the idea of exceptions and limitations are very complicated. It is for small circles of specialists usually and when these things come out in to the open to the greater public opinion things change radically. I can only remind peep of this room for the debate on ACTA or the debate for SOPA and PIPA in the United States. When these issues come out of the closet things are seen in a very, very different light. The opinion of copyright specialist especially where I know in the European Union and totally different with the opinions of the general public. And the general public the vast majority are frustrated by copyright law because social reality that applies de facto and I am not talking about piracy, I am talking about de facto flexibilities and exceptions and limitations are very, very far from the legal reality of the copyright. The vast majority of Europeans would like to have a harmonized and mandatory exceptions and limitations that we are speaking about, whether it be more text and data mining, whether it be for libraries whether it be cross-border, whether it be preservation of cultural heritage, they would like that. Now the opinions of the often of political structures are captured by certain experts and very special groups that are interested in what they want. Especially the European Union is at a cross roads and we can see it politically because around a year ago the European Union launched a process called lnss for Europe where some of the ideas presented by some of the industry people were brought up memorandums of understanding and that the solution to exceptions and limitations for these issues could be found in voluntary measures between stakeholders. This was a failure. This was a terrible failure. We had letters many many many Nobel Prize winners who are asking tore a legal exceptions and limitations for text and data mining for other scientific research and we think that many orphan works legislation does not go far enough. Et cetera, et cetera, self generated user content. How can that Democratic debate take place and these cross roads can be made a positively by real decisions. And I think those real decisions have to be deal with the public dough minute yon, what is public knowledge and things about the commons, we are talking about the knowledge commons here need to have a democratic debate and need to have democratic management. Now this could be done by very delayed mediation to end up in the hands of a few copyright experts that are very close to very narrow industry that I think is defending outdated models or we could open a democratic debate where exceptions and limitations for libraries and archives for preservation for scientific limitation would be beyond borders. Even inside the European Union today it is almost hard to imagine there to be harmonization in the internal market. And the people making money prefer a fragmented market even though European site sents want a harmonized market for these things. My question is impossible question. I am sorry to put you on spot of how to open up the door, how to bring this issue out of the closet and how to involve millions of people who really want that change. Thank you very much</p>
</blockquote>
<p>
For more details visit <a href='https://cis-india.org/a2k/news/knowledge-ecology-international-sccr-29-december-11-2014-libraries-archives-public-interest-ngos-q-a-with-dr-crews'>https://cis-india.org/a2k/news/knowledge-ecology-international-sccr-29-december-11-2014-libraries-archives-public-interest-ngos-q-a-with-dr-crews</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to KnowledgeWIPO2014-12-27T16:54:58ZNews 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 Entry29th Session of the WIPO SCCR: CIS- 2nd (brief) Intervention on the Broadcast Treaty
https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty
<b>On Day 3 (December 10, 2014), the SCCR briefly re-convened at the Plenary. The Chair, Martin Moscoso updated the Committee on the discussions and the developments that had taken place over the course of the past two days in the Informals. The Centre for Internet and Society made a brief pointed intervention on one of the documents being discussed in the Informals.</b>
<p style="text-align: justify; ">Note: <i>The documents cannot be made public yet. They were shared with Observers and Member States (even those that did not participate in the Informals) on the condition of maintaining confidentiality</i>.</p>
<hr />
<p>Nehaa Chaudhari on behalf of CIS made the following statement:</p>
<p>Thank you, chair.</p>
<p style="text-align: justify; ">First on the making available these documents, we would like to echo what CCIA and KEI said- we would also like to see the informal papers made public, so that we can have a more informed discussion on these issues.</p>
<p style="text-align: justify; ">Second, very briefly, on some of the rights to be granted- in one of the Informal Discussion Papers laid out, in -- in the third column, which are essentially fixation and post fixation rights, just very briefly, that whatever is done in any case after the signal is fixed is already covered by copyright law and we find it frightening and we see little sense in providing two sets of incompatible, and overlapping rights- copyright, that is already existing, and a sort of a para-copyright (that this treaty seeks to create) for the same underlying content.</p>
<p>Thank you, Mr. Chair</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty'>https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty</a>
</p>
No publishernehaaIntellectual Property RightsAccess to KnowledgeWIPO2014-12-12T11:56:14ZBlog 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 Item29th Session of the WIPO SCCR: CIS Intervention on the Proposed Treaty for the Protection of Broadcasting Organizations
https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations
<b>The Centre for Internet and Society (CIS) made its intervention on the proposed treaty in the ongoing WIPO session on December 9, 2014. </b>
<p style="text-align: justify; ">Nehaa Chaudhari on behalf of CIS made the following statement:</p>
<p style="text-align: justify; "><b>Thank you, Mister Chair.</b></p>
<p style="text-align: justify; ">This intervention will be based on the chart detailing the ‘Concepts’ corresponding to the Definitions. We believe that certain elements of these concepts are inconsistent with a broadcast treaty based on a signals based approach; and over the course of the next few minutes, I will briefly discuss these.</p>
<p style="text-align: justify; "><b><i>First,</i></b><b> </b>Mr. Chair in the first column- on broadcasting or cablecasting organizations (in the traditional sense); where communication of the signal has been listed under scope of responsibility. Mr. Chair, ‘communication’ itself is an element of copyright and is distinct from broadcast rights that are related rights. A signal, Mr. Chair, may be broadcast or transmitted. Accordingly, Mr. Chair under the element of Scope of Responsibility, we are of the opinion that it should read Broadcast or Transmission of the signal and not communication of the signal; and the focus should not be at regulating communication to the public.</p>
<p style="text-align: justify; "><b><i>Second, </i></b>Mr. Chair, in the second column- on broadcasting and cablecasting transmission- we have three observations. First- under the means of transmission, we believe that transmission over computer networks encompasses IP based transmissions, and should be excluded, in order for the treaty to remain consistent with a signals based approach. Second- on the reception of the broadcast or cablecast transmission, we believe that it should be qualified using the phrase ‘general public’. We are of the opinion that there is a danger that a limited public (say family members) could possibly be covered by the term “public”, but would be excluded from “general public”; which in any case is the targeted audience of a broadcast. Third, Mr. Chair, on whether the transmission would be encrypted or not- which also flows into the third column on the Signal- and whether it is encrypted or not; which then also relates to whether broadcasting organizations will have the right to prevent unauthorized decryption. Mr. Chair, we don’t think that there should be a separate right to prevent unauthorized decryption. Given that signal theft is already a crime, having a specific right to prevent unauthorized decryption might result in an absurdity, where it could even cover decrypting an unauthorized retransmission without authorization from the retransmitter.</p>
<p style="text-align: justify; ">This provision might result in an absurdity, where it would cover decrypting an unauthroised retransmission without authorization from the retransmitter, where the retransmission in the first instance was illegal to begin with.</p>
<p style="text-align: justify; "><b><i>Finally</i></b>, Mr. Chair, on the third column and the meaning of signal- we submit that our preferred definition would be where the definition of a signal is confined, and it understood as an electronically generated carrier transmitting a broadcast or cablecast and NOT one which has the capability of such a transmission, as stated in the third column in your Chart on concepts.</p>
<p style="text-align: justify; ">Thank you, Mr. Chair.</p>
<p style="text-align: justify; "> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations'>https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations</a>
</p>
No publishernehaaBroadcast TreatyIntellectual Property RightsAccess to KnowledgeWIPO2014-12-12T11:55:51ZBlog Entry28th Session of the WIPO SCCR: Report on the Proposed Treaty for the Protection of Broadcasting Organizations
https://cis-india.org/a2k/blogs/wipo-sccr-28-proposed-treaty-for-protection-of-broadcasting-organizations
<b>The 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“the Committee” / "SCCR") took place in Geneva from June 30, 2014 to July 04, 2014. In this article, Nehaa Chaudhari, who attended this meeting on behalf of CIS, discusses the developments that took place with reference to the proposed Treaty for the Protection of Broadcasting Organizations (“Broadcast Treaty”).</b>
<p style="text-align: justify; ">At its 28<sup>th</sup> Session, the WIPO SCCR devoted two and a half days to a discussion on the Broadcast Treaty. For the majority of this period informal discussions <b>(“Informals”</b>) were held between member states and there was no plenary. While Non- Government Organizations ( <b>“NGOs”</b>) and those member states who were not participating in the Informals were able to listen to the discussions taking place, we were requested to not report about them in any form whatsoever. Consequently, this article does not mention, cite or discuss the conversations in the Informals in any manner whatsoever, and is confined to deliberations at the plenary sessions.</p>
<h2 style="text-align: justify; ">Preliminary</h2>
<p style="text-align: justify; ">Proceedings on Day 1 (June 30, 2014) began with a speech by the Director General of WIPO, Francis Gurry. Commending the “exceptional progress” made by the Committee over the past few years, Mr. Gurry cited the <a href="http://www.wipo.int/treaties/en/ip/marrakesh/">Marrakesh</a> and <a href="http://www.wipo.int/treaties/en/ip/beijing/">Beijing</a> Treaties as success stories. In talking about the Broadcast Treaty, Mr. Gurry said that the then ongoing FIFA World Cup, 2014 was “the perfect example” for member states on the economic and social importance of broadcasting. He went on to add that the Broadcast Treaty was the last component of the international legal framework which had not been “updated for the digital environment”. Identifying the challenge as developing a shared understanding of what and how to protect, Mr. Gurry was of the opinion that the Committee would make progress on the development of an instrument that was narrow in scope to combat cross border digital piracy.</p>
<p style="text-align: justify; ">In his statement following that of the Director General, the Chairperson, Edgar Martin Moscoso Villacorta (<b>“the Chair”</b>) explained that he had held consultations with the regional coordinators and three other nations from each group on June 27, 2014 to figure out how best to proceed at the upcoming 28<sup>th</sup> Session of the Committee; before opening the floor to Regional Coordinators for their Opening Statements.</p>
<h2 style="text-align: justify; ">Group Opening Statements by Regional Coordinators : Reflections of a North-South Divide</h2>
<p style="text-align: justify; ">Opening statements by Regional Coordinators on behalf of their groups reflected sentiments similar to those witnessed at the 26<sup>th</sup> and 27 <sup>th</sup> Sessions of this Committee<a href="#_ftn1" name="_ftnref1">[1]</a>. While there was broad consensus on having a well-balanced work plan that addressed the different issues of broadcasting, limitations and exceptions for libraries and archives as well as limitations and exceptions for education, teaching, research and persons with disabilities, statements also reflected the disagreements between various groups on the maturity (or the lack thereof) of the various items on the agenda, largely along the fault-lines of the classic <i>Global North</i> v. the <i>Global South.</i> For instance, statements by the European Union (<b>“the EU”</b>) and Group B, the group of developed countries emphasised the convening of a diplomatic conference for the Broadcast Treaty, but on the other hand, statements by the groups of developing countries highlighted the importance of limitations and exceptions.</p>
<p style="text-align: justify; ">The Regional Coordinator (presently, Paraguay) for the Group of Latin American and Caribbean Countries (<b>“GRULAC”</b>) placed emphasis on a “well balanced work plan which envisages the different issues” but also stated that for their group, “the issue of limitations and exceptions for libraries and archives and educational and research institutions (is) of the utmost importance.”</p>
<p style="text-align: justify; ">The representative of Bangladesh, in his capacity as the Regional Coordinator of the Asia-Pacific Group said that their group considered all issues to be equally important, notwithstanding the fact that they might enjoy different levels of discussion at the SCCR; and on the issue of protection of broadcasting organizations said that the group was “willing to work constructively” and hoped to continue “meaningful technical discussions in finalization of the scope of the protection of broadcasting organizations and to advance further to a balanced international instrument of rights and responsibility for the broadcasting organizations.”</p>
<p style="text-align: justify; ">The statement of the Central European and Baltic States (“CEBS”) Group, presently represented by the Czech Republic categorically stated that the CEBS Group was “striving for the successful conclusion of the work regarding the protection of broadcasting organizations with the aim to recommend to the General Assemblies to convene the Diplomatic Conference to take place, as soon as possible, preferably in 2015.” (sic)</p>
<p style="text-align: justify; ">Japan, speaking on behalf of Group B, in their statement recognised the “tradition…to allocate more time to discussion on more mature subject matters”, referring to the Broadcast Treaty and, like the CEBS Group, also touched upon the issue of convening a Diplomatic Conference as soon as possible.</p>
<p style="text-align: justify; ">The European Union (<b>“the EU”</b>) has perhaps been one of the most vocal proponents of the Broadcast Treaty at past sessions of the Committee, and carried forward this tradition into the 28<sup>th</sup> session as well, labelling negotiations on the Broadcast Treaty “a high priority” for Member States. The EU also echoed the statements made by the CEBS Group as well as Group B on the need to call for a diplomatic conference “as soon as possible.” In order to achieve this, said the EU, there was a need to build a “broad consensus” on the problems that needed to be addressed as well as on the extent of protection envisaged.</p>
<h2 style="text-align: justify; ">Technical Assistance from Broadcasters</h2>
<p style="text-align: justify; ">The United States of America placed an emphasis on a treaty that would address challenges posed by new technologies, indicated in their request to the Secretariat to inform the member states about different sizes and types of broadcasters using new technologies by conducting a survey, recognising that a lot had changed over the course of the past 12 years, when a report on this issue was last prepared; a proposal which was supported by the delegation of India as well.</p>
<p style="text-align: justify; ">Following these comments by the United States of America (but in an unrelated move), the Chair suggested technical assistance be sought from broadcasters. Surprisingly, he identified three NGOs (in this case associations of broadcasters), namely Asian Broadcasters Union, International Association of Broadcasters and National Association of Broadcasters, who could provide technical assistance if required.</p>
<p style="text-align: justify; ">This stance was supported strongly by the delegations of Egypt and the Russian Federation. While it also found support from the Japanese delegation, it also pointed out that a mere presentation might bring about some confusion, and instead thought that it might be a better idea to update the studies commissioned by WIPO in 2002.</p>
<p style="text-align: justify; ">Resistance to this proposition was offered by the delegation of Venezuela who questioned the “expertize of these experts to speak to the Member States about such a complicated issue” and “the selection criteria” among others. Exclaiming in surprise at the manner on which this proposal had been accepted, the delegate sough further clarifications on the issue, demanding to know “who these very important people are who are going to come in and help us solve a problem in which we have not been able to solve in 10 years.” (sic.) The concern on the absence of transparency was also echoed by the delegate of Uruguay, who expressed his great “astonishment” at “three technical experts” at the session, saying that it was “most inappropriate” to be informed about the presence of technical experts after regional coordinators had earlier expressed their refusal to have such an exercise. In response, the Chair said that this was a decision that he had taken in response to a request for technical consultations made at the earlier session of the Committee. He went on to add that the Committee could do without the technical assistance if perceived to be unnecessary and the process not transparent.</p>
<h2 style="text-align: justify; ">Scope of Protection: Article 6</h2>
<p style="text-align: justify; ">The Scope of Protection under the Broadcast Treaty is laid out under Article 6 of Working<a href="http://www.wipo.int/edocs/mdocs/copyright/en/sccr_28/sccr_28_ref_sccr_27_2_rev.pdf">Document 27/2/Rev.</a> (<b>“Working Document”</b>). <b> </b>This document lays out the text which forms the basis of the negotiations at the SCCR.</p>
<p style="text-align: justify; ">Confining the Broadcast Treaty to a <i>signal based approach</i> versus broadening the scope of the treaty to a more technologically neutral <i>rights based approach</i> was the chief point of conflict between the developed and the developing nations, reflect in their statements discussed below.</p>
<p style="text-align: justify; ">Opening the proceedings, the United States of America (<b>“the US”/ “USA”</b>) placed complete support on the statement of Group B; but also added that the way forward “to finding consensus” was to “focus on a narrow treaty based on the core need of broadcasters for protection from signal piracy.” The US proceeded to outline its proposal of “a single right to authorise the simultaneous or near simultaneous transmission of signal to the public over any medium.” Highlighting the key advantages to this proposal the US said that its proposal was “modern”, recognizing the importance of “new technologies that are used for engaging in signal piracy and avoids a number of negatives as to which concerns have been expressed in the discussions”. However, the US was also quick to clarify that the “right would be limited to protection for the signal and not to the content contained in fixations of the broadcast” and would also “avoid interference with the rights of the right holders in the content that was broadcast” as well as “avoid any impact on consumers who were engaged in private activities such as home copying”.</p>
<p style="text-align: justify; ">India reiterated its serious concerns regarding webcasting, simulcasting and retransmission over computer networks. Japan, on the other hand, while most other nations chose to reserve their comments for discussions in the Informals alone.</p>
<p style="text-align: justify; ">On the third day of this meeting, the Chair presented the progress that had been made over the course of the discussions taking place in the Informals. He said that webcasting had been removed from the scope of application. The concern, said the Chair, was that webcasting was also carried out by other actors- not just broadcasting organizations, and that having different rules for different actors carrying out the same activity would not be “a good message” (sic.)</p>
<h2 style="text-align: justify; ">Rights of Broadcasters: Article 9</h2>
<p style="text-align: justify; ">The Rights of Broadcasters under the Broadcast Treaty are laid out under Article 9 of the <a href="http://www.wipo.int/edocs/mdocs/copyright/en/sccr_28/sccr_28_ref_sccr_27_2_rev.pdf">Working Document</a>.<b> </b>The US said that it “remained convinced” that a narrow scope of rights would make it possible for the SCCR to recommend convening a diplomatic conference. The Russian Federation on the other spoke of the need to take into account the “appearance of new technologies which provide new possibilities, particularly the use, and the unauthorized use of the signal.”</p>
<p style="text-align: justify; ">As in the case of the Scope of Application, in the case of Rights of Broadcasters as well, the Chair updated the plenary on the discussions in the Informals. The discussions were informed by two informal documents listing out the rights as well as the scope. While discussing the rights, said the Chair, it was decided to merge simultaneous and near simultaneous retransmission since they were closely related. The rights sought to be granted to the broadcasters include those of fixation, reproduction of fixations, distribution of fixations and performance of the broadcast among others.</p>
<p style="text-align: justify; ">In response to the Chair’s invitation for suggestions, the delegate of Sri Lanka suggested that one of the sentences be rephrased as follows: “Transmission or retransmission of the broadcast signal to the public over any medium whether simultaneous, near simultaneous or deferred including on demand transmission on a broadcast signal.” She also added fixation rights should be granted only to that extent of a file being copied for the purpose of transmission, before it has been transmitted. A few other delegations either echoed similar sentiments, or chose to remain silent until the Informals.</p>
<h2 style="text-align: justify; ">Comments by NGOs</h2>
<p style="text-align: justify; ">On the third (and the final for the Broadcast Treaty), day of discussions, the Chair opened the floor to interventions, observations and comments by NGOs.</p>
<p style="text-align: justify; ">AIR, representing broadcasting organizations spoke of the “great need” to update the Rome Convention because of the prevalence of piracy, especially transmissions over the internet. The National Association of Broadcasters cited instances of television piracy as examples of the harm to broadcasters and need for such a treaty. The Japanese Commercial Broadcasters Association expressed its support for post fixation rights and said that they were important to broadcasters, “especially the right of making available a fixed broadcast is crucial in order to fight online piracy which we said a number of times before…” (sic.). Also recognising the need to be flexible, the Japanese Commercial Broadcasters expressed their support to the proposal made by the Japanese delegation in making some rights optional.</p>
<p style="text-align: justify; ">A different set of concerns was articulated by other NGOs, who were not associations of broadcasters. Trans Atlantic Consumer Dialogue ( <b>“TACD”</b>) spoke of the possible “collateral damange to public access and culture” and the addition of “new layers of complications barriers and costs added” to access to information and knowledge by consumers. Further, highlighting the irony of the SCCR with the strong push towards a binding Broadcast Treaty “with a wide scope”, the Trans Atlantic Consumer Dialogue said that this was in “stark contrast on the part of some other Member States to discussing new global norms” to facilitating the role played by libraries and archives. Additionally, TACD also said that there was the danger of “opening up an endless and incomprehensive Pandora box of overlapping rights on content between non creators of broadcasts and the real creators” (sic.), and also expressed grave concern over the negative impact of post fixation rights on the use of news, culture and information by consumers ad users. “In consideration of a new international norm for broadcasters, we must not forget the common food for the free flow of information for citizens,” said TACD. It also said that the focus of the work should not be to satisfy the interests of one special group while ignoring the possible negative unintentional consequences on “normal users”, and asked for a social impact assessment of the Broadcast Treaty.</p>
<p style="text-align: justify; ">Knowledge Ecology International (<b>“KEI”</b>) in their statement stated that the broadcasters had failed to meet their burden of proving the need for “exclusive rights to fight piracy.” In order for the Committee to make progress, KEI suggested that the focus be on a “narrow treaty based on a single right corresponding to the key need of broadcasting organizations for protection from signal piracy.” KEI also questioned and opposed the extension of broadcasters’ rights to cable television and other services which were not only subscription based, but were also protected under theft of service laws. Further confining the scope of the Broadcast Treaty, KEI suggested that the treaty only deal with over the air broadcasts which were free to the public.</p>
<p style="text-align: justify; ">A powerful statement by CCIA referred to fixed signals as “fiction” and said that the existing model in the Brussels Satellite Convention was adequate to protect piracy of signals. Echoing the sentiments of various other organisations as well (including CIS as discussed below), CCIA stated that while broadcasters had stated that the present approach was not adequate to protect their interests, no reasons had been offered fir the same. In agreement with other nations as well as TACD before it, CCIA also sought information from WIPO on the “real world impact of the obligations” it intended to create.</p>
<p style="text-align: justify; ">Also joining the call for impact assessment was the Third World Network (<b>“TWN”</b>). TWN also spoke of restricting the scope of the Broadcast Treaty to the mandate accorded to the SCCR in line with the 2007 General Assembly decision, the need to base discussing on WIPO’s Development Agenda, and the “negative implications on the free flow of information over the Internet and the negative impact on the public domain and access to knowledge.”</p>
<p style="text-align: justify; ">The Centre for Internet and Society (<b>“CIS”</b>), in agreement with CCIA pointed out that the broadcasters had not discharged their burden of justifying the need for the Broadcast Treaty and why “international instruments including, among others, the TRIPS and the Rome Convention” were insufficient to address the concerns of broadcasters. Joining other organizations including CCIA, TACD and TWN in a call for a further study, CIS requested an impact assessment of the Broadcast Treaty on all stakeholders. Further, CIS pointed out that if the rationale for seeking this protection was the protection of the underlying investment, IP based transmissions should be out of the scope of this treaty, since the investments involved in IP based transmissions and those in broadcasting in a traditional sense were very different. CIS also strongly opposed the inclusion of fixation and post fixation rights since they were inconsistent with a <i>signals based approach</i> and pointed out the irony in protecting a signal for twenty years, when the signal itself lasted milliseconds.</p>
<p style="text-align: justify; ">IFTA, the Independent Film and Television Alliance placed emphasis on the separation of the content and well as the broadcast signal as well maintaining a balance by also safeguarding public interest.</p>
<h2 style="text-align: justify; ">Chair’s Conclusions</h2>
<p style="text-align: justify; ">After five days of deliberations, the 28<sup>th</sup> Session of the SCCR, just like the 27<sup>th</sup> Session, ended with no conclusions being adopted by the Committee, as a result of which the <a href="http://www.wipo.int/edocs/mdocs/copyright/en/sccr_28/sccr_28_ref_conclusions.pdf">Chair’s Conclusions</a> were prepared by the Chair, Martin Moscoso.</p>
<p style="text-align: justify; ">Clarifying that this item would be maintained on the agenda for the 29<sup>th</sup> Session of the SCCR and that there had been no agreement on recommendations to the WIPO General Assembly, the Chair’s Conclusions state that the Committee conducted discussions on issues relating to “categories of platforms and activities to be included under the object and scope of protection to be granted to broadcasting organizations in the traditional sense, and initiated discussions on definitions.” The Chair’s Conclusions also clarify that “the Secretariat was requested by some Members to provide an update of the 2010 study on “Current Market and Technology Trends in the Broadcasting Sector” (Document SCCR 19/12), focusing on the use of digital technology by cablecasting and broadcasting organizations in the traditional sense whether public or commercial, including in developing countries, with the aim of presenting the results of the study and providing opportunities for technical discussion at the 29th session of the SCCR.”</p>
<div style="text-align: justify; ">
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> <i>See</i> http://cis-india.org/a2k/blog/wipo-sccr-consolidated-26-session-consolidated-notes-part-1 (last accessed 17 July, 2014), http://cis-india.org/a2k/blog/wipo-sccr-26-session-consolidated-notes-part-2 (last accessed 17 July, 2014) and http://cis-india.org/a2k/blog/wipo-sccr-26-session-consolidated-notes-part-3 (last accessed 17 July, 2014) for CIS’ report on the 26<sup>th</sup> Session of the Committee.</p>
<p><i>See</i> http://cis-india.org/a2k/blog/wipo-sccr-27-discussions-transcripts (last accessed 17 July, 2014) for transcripts of the discussions at the 27 <sup>th</sup> Session of the Committee.</p>
<p><i>See</i> http://cis-india.org/a2k/blog/cis-statement-limitations-and-exceptions-education-training-research-institutions-persons-with-other-disabilities (last accessed 17 July, 2014) and http://cis-india.org/a2k/blog/cis-statement-treaty-for-limitations-and-exceptions-for-libraries-and-archives (last accessed 17 July, 2014) for CIS’ Statements at the 26<sup>th</sup> Session of the Committee.</p>
<p><i>See</i> http://cis-india.org/a2k/blog/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations (last accessed 17 July, 2014), http://cis-india.org/a2k/blog/cis-statement-orphan-works-retracted-withdrawn-works-and-works-out-of-commerce-at-27-sccr-on-limitations-and-exceptions-for-libraries-and-archives (last accessed 17 July, 2014) and http://cis-india.org/a2k/blog/cis-statement-on-technological-measures-of-protection-27-sccr-on-limitations-exceptions-for-libraries-and-archives (last accessed 17 July, 2014) for CIS’ Statements at the 27<sup>th</sup> Session of the Committee.</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-sccr-28-proposed-treaty-for-protection-of-broadcasting-organizations'>https://cis-india.org/a2k/blogs/wipo-sccr-28-proposed-treaty-for-protection-of-broadcasting-organizations</a>
</p>
No publishernehaaAccess to KnowledgeWIPO2014-08-07T10:44:05ZBlog EntryOpening Comments by India on Limitations and Exceptions for Libraries and Archives at WIPO SCCR 28
https://cis-india.org/a2k/blogs/opening-statement-of-india-on-limitations-and-exceptions-for-libraries-and-archives
<b>This was the statement made by the Indian delegation at the 28th session of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights on July 2, 2014.</b>
<p style="text-align: justify;">Hon'ble Chair</p>
<p style="text-align: justify;">In the quest for Knowledge society-for the developing countries- the issue of haves and have -not’s is now sliced with an additional divide of knows and Know -not’s. Libraries and Archives are the engines of creativity and promote intergeneration equity. They indeed are the modern day temples, mosques and churches- The notion of strong copyright boundaries has found its resonance to encircle spaces hitherto providing the socio economic infrastructure for developing nations. It is in this context that we need to look for appropriate international instrument to consolidate the access by way of limitations and exceptions to libraries, archives, educational institutions and other disabled people.</p>
<p style="text-align: justify;">The overemphasis of stricter and stronger copyright as the engine of creativity is now questioned by latest studies. Ekhard Höffner a German historian has in his comprehensive research argues the fact that in the 19th century Germany outpaced UK, as the copyright laws were not strong as it was in UK. This fact goes contrary to the established view that Copyright is directly correlated to the expansion of creative works and publication. In fact Germany could do the catch up with the other powers in Europe.</p>
<p style="text-align: justify;">I am mentioning this to emphasize for the developing world to do the catch up it is necessary to have limitations and exceptions for Libraries/archives/educational institutions. At this junction it is necessary to recognize the importance of such consensus without presuming whether what sort of International Instrument it should be.</p>
<p style="text-align: justify;">India supports the effort of harmonizing the exceptions and limitations from an international dimension for intergenerational equity and as a tool to develope socio-economic- human resource infrastructure.</p>
<p> </p>
<p style="text-align: justify;"><span style="text-align: justify;"> </span></p>
<p style="text-align: justify;"> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/opening-statement-of-india-on-limitations-and-exceptions-for-libraries-and-archives'>https://cis-india.org/a2k/blogs/opening-statement-of-india-on-limitations-and-exceptions-for-libraries-and-archives</a>
</p>
No publishernehaaAccess to KnowledgeWIPO2014-07-21T17:55:28ZBlog Entry