The morning session was a continuation of yesterday informal regarding scope and beneficiaries of the proposed treaty. The delegates also discussed the 4 topics of the Japanese non paper which dealt specifically with webcasting. The second part of the morning session was about Article 9 which deals with what rights would the Broadcasting organisations acquire and be protected by the proposed treaty.
According to WIPO Secretariat’s summary, the four topics from the nonpaper from Japan and the general views of the delegates were:
# 1 simultaneous and unchanged transmission of broadcasting programmes simulcasting. The delegates decided these topics are included in the mandate
# 2 transmission of original programming Webcasting. Some delegations say it should be while others say no it should not be included
# 3 on demand transmission of broadcasting programme. There was an agreement that no, this should not be included.
# 4 original programming and deferred and unchanged transmission of broadcasting programme. This category was deferred. There was some commentary that this was a topic that some countries were interested in including. There was not really extensive discussion or Consensus on this.
The Chair then asked for the various regional groups views on the topics. This is a summary of the statements from the floor.
Group B (the rich countries such as Australia, US, Europe): There was a general Consensus in the group on beneficiaries but for the transmission of the Internet there are different views in the group. Some members think that simulcasting (at least) should be protected in a mandatory manner and transmission over the Internet could be further considered. On the other hand, there was a general Consensus that on demand transmission could be excluded from the subject matter to be protected.
Belarus et al.: Signals should be protected however the way they are transmitted. They think it is sufficient to say in the Treaty that this Treaty does not in any way effect the rights of the authors of the work, the rights of the users or the producers of phonograms when we are talking about the signal carrying — the signal. They also stressed that their group supports the idea of the need to protect the rights of broadcasting organizations on the Internet.
India asked once again to get a clarity on the 2007 GA where the very basic boundaries were set out. “If I may please read, to maintain the momentum regarding a draft Treaty on the protection of broadcasting organizations and cablecasting organizations in the traditional sense, the committee agreed to continue discussions on a signal based approach consistent with 2007 GA mandate. There is a question of whether the delegates are within the boundaries of the mandate or whether they are digressing or trying to interpret the boundaries once again.
GRULAC: There are different views within GRULAC and the delegates need more time to consult on this particular issue. Not despite that fact even though they are different views. But they are very close to a common position and within the next few days a common position will be decided.
POLAND presented the views were shared between the members of Central European and Baltic States. “we support the view that protection should be up to date, effective and technology neutral.” They reached the overall agreement that the beneficiaries of the protection should be traditional broadcasters and cablecasters. And as far as the scope of application. They support that the protection should be granted to traditional ways and as far as Internet, to simulcasting and defer and unchanged transmission of broadcast programme. As far as the Web casting, they are willing to include Webcasting also but understand that there are some members that are not supporting of this. The group supports the Japanese proposal which leaves it to national laws. He also stated that “As far as on demand transmissions we heard yesterday the views on different understandings of what is on demand transmission. And we support that those on demand transmissions that are based on multiple transmissions at the same time, like, for example, including the sports events should be included.”
EUROPEAN UNION: The delegate from EU wanted to add a few comments on the transmission on the Internet. For the European Union and its Member States simulcasting is the minimum of obligatory protection. They also would like to extend protection to such transmissions.
“Specifically on demand transmissions what is specifically important for us here is to make sure that services and transmissions such as what is called red button services where there is a choice of transmission that is made by the recipients you can watch different, for example, sports
events at the same time but that would be protected.”
Following the regional groups statements, various individual delegations took the floor. Then India, throwing a spanner in the works, took the floor again and ask for clarification regarding the mandate:
“I am sorry to take the floor again on behalf of India because my Delegation had earlier asked clarification on the mandate of 2007 General Assembly and now we are hearing the views from the distinguished Delegations here that was 2007, it was seven years back. That is a long time already in the field of broadcasting and, of course, Internet and these area is very much evolving. Every day we have the new developments in this field. So now we are asking about the computer network, and now the mobile network has developed. So there is something new that will come maybe after two years and we are here talking about 2007 mandate.”
She continued by asking who was responsible to re- interpret the mandate if the delegates were not comfortable with the mandate. For India, this should be done by the General Assembly.
She reminded the assembly that:
“Even though there is a clear digital divide existing today in the world that the Developing Countries, LDCs and what is the extent of the penetration of computer or the Internet network. So still who will be getting more benefit or not. So this is subject to discussion. I think further discussion is needed. So either we have to limit the signal based approach in traditional sense. But now if if he want to negotiate on another parameter it should be brought to the General Assembly or go to General Assembly for interpretation. That is what we wanted to state here. Thank you.”
The United States took the floor to take the opposite view on the issue of the mandate:
“A number of Delegations have addressed the issue of the General Assembly’s 2007 mandate and we thought it was worth addressing this and giving our perspective on it. There is, of course, one issue as to whether we can ask the General Assembly to revisit their mandate if that’s the view of this Committee but we do understand there are a number of Delegation that don’t want to do that and want to continue to work within the scope of the mandate even if it is from 2007 which is some time ago. In our view the work that we are doing here and what was done yesterday in both the formal and informal session is completely consistent with the existing mandate. The mandate talks about protection for broadcasting organizations and cablecasting organizations in a traditional sense. Our understanding of that term of those terms was that it was intended to rule out anyone who might be engaged in actives over the Internet that would be considered Webcasting and we don’t know who they are and that would was an area of concern within the trend of the Committee in 2007. Our understanding of the decision in the mandate was to have a definition of what was a broadcasting organization and a cablecasting organization so that there was a common understanding that it was a certain kind of entity engaged in these activities in a regular way. But that doesn’t mean the mandate rules out providing any protection to those organizations in a traditional sense when they use different types of delivery mechanisms than the ones that they have used in the past.
And second the mandate talked about a signal based approach and we see that as focusing on signal rather than the content that is carried by the signal and we do think that is what we all engaged in trying to define and when we get to describe in greater detail the compromise that the U.S. has suggested pursuing, that focuses very much on the signal based aspect of the mandate. Thank you.”
The delegates went back to discussing the proposed text, Article 9.
Article 9 relates to the protection of broadcasting organizations. It provides for two alternatives, alternative A and alternative B which is submitted to the Committee’s consideration.
Alternative A provides for a short list of exclusive rights, right to authorize a limited number of exportation Acts which includes retransmission of signal to any public by any means. Paragraph 2 provides flexibility to the contracting parties to determine the conditions under which the Act under paragraph 1.2 and 1.3 can be exercised provided that sufficient protection is adequate and effective.
Alternative B paragraph 1 for Article 9 provides for a broader list of exclusive rights, including post fixation rights and includes the following exclusive rights, right of fixation and right of retransmission by any means, communication to the public making available transmission by any means and making available to the public.
Alternative B paragraph 2 similar to the paragraph 2 in alternative A and it provides flexibility for the contracting parties to determine the conditions under which the rights can be exercised provided that the protection is adequate and effective. The wording is similar. Then we have paragraph 2 — paragraph 3 which provides that with respect to the rights of the exclusive rights which are provided in paragraph 1. So mainly the rights of reproduction, the right of communication to the public, the right of making available, the right of transmission and the right of making available to the public Member States have the possibility to provide instead of the exclusive rights of authorization — of authorizing they have the possibility to provide a right to prohibit provided that notification is deposited with the Director-General of WIPO.
And paragraph 4 relates to the protection of the prebroadcast signal, similar in what we have in alternative A third indent the use of rebroadcast signal but we have a different wording in relation to the protection of prebroadcast signals, signals prior to broadcasting which are signals not directly intended for reception by the public and there the wording is different in relation to the protection to be granted.
The United States took the floor to describe in more details the “compromise approach” that was mention at the April meeting of the Committee:
“What we would envision as a possible landing point for compromise is a single right, rather than a catalog of rights, rather than a list of rights modeled more on the WPPT. And we would suggest focusing on the core problem facing broadcasters today. Certainly as we have heard it and that is the piracy of their signals as they are being sent out to the public or being prepared to be sent out to the public.
So the idea would be to give control to them of retransmissions of their signals to the public. This approach would avoid any protection for the conit would not provide any post fixation rights. So the elements would be as follows: The right would be one to authorize retransmission and it would involve retransmission over any medium. So it would be technologically neutral. And we have said before that in the 21st century in the second decade of the 21st century, well in to the second decade of the 21st century we don’t think there is much point in preparing a new Treaty that does not protect against pirate si over all technological means including the Internet.
So simultaneous is essentially live broadcasts. Near simultaneous would have to be defined and it could be defined as a transmission that is delayed only to the extent necessary either to accommodate time differences in different locations or to facilitate technical transmission of
the signal. In other words, to meet technological requirements for the particular delivery means. The element of to the public is important. You are talking about a retransmission to the public. So it would not affect private uses and it would explicitly be a protection for the
retransmission of the signal and not the content that it carries.And it would include as do a number of the other proposals prebroadcast signals and that is the signals that are transmitted to the broadcasting organization in preparation for transmission to the public but not themselves intended for direct reception by the public.
So we see a number of advantages to this approach which is why we are putting it on the table as a potential area for compromise.
First it is potentially short and simple. Second it doesn’t create more rights than absolutely necessary. Third it would not overlap with the rights in the content and would not create extra layers of protection and the need for extra authorizations. And fourth it confirms and clarifies the protection that broadcasters most need at the international level. It would enable to prevent signal piracy over the Internet and including the prebroadcast signal.
And, of course, we are aware that some countries in their domestic law and proposals here have proposed a greater range of rights but this approach would allow flexibility and each country could in fact, in its domestic law provide a greater range of rights.
Other advantages is that it may resolve some other knotty issues that we are discussing here. It could avoid the need for any defined term at all. If we are talking about simultaneous.
European Union took the floor to present their position on Article 9. What is closer to their position is alternative B although, of course, there is still much discussion needed here.
“What we find most important is to grant such rights which go to the core of the problem that we are dealing with and that would be the right of retransmission of broadcasts and in our view such right of retransmission should be as broad as possible and should refer to retransmissions on all platforms. However therefore by wire or wireless means however it is Internet, cable, satellite or any other platform. And also that it should be based — that it should include retransmissions However therefore by wire or wireless means however it is Internet, cable, satellite or any other platform. And also that it should be based — that it should include retransmissions whether they are simultaneous or based on fixations. In that regard we also always maintain the position that we would like to see the right of making available of fixed broadcasts in this Treaty as well. That is the right of retransmission where the recipient of the transmission chooses the place and the time of such transmission.”
The EU Delegate continued with more potential rights:
“We also would go further and would also be interested in, of course, providing the other rights such as rights of fixation, reproduction of fixation and distribution of fixation, though we understand that a number of Delegations are not interested in going as far as we would be preferred to go. And as And as regards — as regards in alternative A, I would — the second right which is performance of broadcast signals in places accessible to the public for commercial advantage or using very large screens I would like to stress that the position of the European Union and its Member States is that if we would be taking in to account such a right of public performance in places accessible to the public that should be limited only to places accessible to the public against payment of an entrance fee like it is provided in the Rome Convention. We would not be prepared to go further than that. Just in addition I would like to say, of course, we also look for protection of prebroadcast signals and how these prebroadcast signals should be protected on the basis of which right is for further discussion.[…]
And we are also very interested in looking at the proposal of the Indian Delegation, especially on the part that we need to analyze the protection of retransmissions over computer Networks because we think it is absolutely necessary to have a right of broadcasting organizations to protect itself from retransmissions over computer Networks. Thank you very much.”
Kenya, Mexico, Ecuador asked for the floor but the meeting was interrupted for lunch. A working lunch with a side event on what consitutes an “authorized Entity” for the Marrakesh Treaty.