to get the live transcript:
http://www.streamtext.net/player?event=WIPO
code: sccr31
webcast: http://www.wipo.int/webcasting/en/includes/newplayer/Player_EXT_roomN.html
The SCCR was supposed to start today with the Rights to be granted to broadcasters.
III. RIGHTS TO BE GRANTED/PROTECTION
ALTERNATIVE A
Broadcasting organizations shall have the right to authorize or prohibit the retransmission of
their broadcast to the public by any means.
ALTERNATIVE B
Broadcasting organizations shall have the right to prohibit the unauthorized retransmission of
their broadcast to the public by any means.
However, the Chair asked to go back to yesterday’s discussion on paragraph 4:
(4) The provisions of this Treaty shall apply mutatis mutandis to the protection of
cablecasting organizations in respect of their cablecasts.
Chair´s note: Further discussion is needed on the inclusion as an object of protection of
transmissions by broadcasting (cablecasting) organizations in such a way that members of the
public may access them from a place and a time individually chosen by them.
The debate was quite lively and less formal than usual as the Chair asked NGOs to participate in the discussion in an interactive manner.
[> CHAIR: […]Before entering into discussion of Section III, I want to be sure that you don’t have more comments at this point regarding paragraph 4 in the Object of Protection, which is — please, can we go to the paragraph 4 in the second section. There. There paragraph 4 and the Chair’s note.[…]NGOs have the floor. First of all, Brazil has the floor.
>> BRAZIL: Thank you, Chair, for giving me the floor and good morning to all the delegates. Specifically, I would like to refer to the Chair’s note, just to support the comments that are made regarding the need for further discussion on the possible inclusion of — as an object of protection of transmissions by broadcast organizations in such a way that members of the as a place and time individually chosen by them, it’s still unclear how this new possible object of protection would relate should a mandate given regarding the signoff based approach, and how this would relate to content that is transmitted. So we would support the Chair’s note. We understand that we need further discussion of this topic. Thank you, Chair.
[…]
>> APP: Yes, APP. Mr. Chairman, good day. APP is an association of broadcasters that includes various different broadcasters around the Americas, the US, Mexico, Latin America and also Spain and Portugal, and we share the idea that we should explore and continue to analyze the possibility, including cablecasting, particularly because in the countries that we represent, most of our programs come to the viewers through cable systems. We are very concerned with regard to the issues of piracy in our countries. We see that signals are stolen directly from cable companies and therefore, we would like to see the possibility of cablecasting being included with regard to the protections that are foreseen under this issue. Thank you.
KEI has the floor.
>> KEI: Thank you Mr. Chairman. KEI would be as concerned as anyone of piracy, of content that’s provided over cable systems. I think, however, it will be interesting for the association of broadcasters, the APP, if they could explain if in any of the countries where they have problems with people stealing cable signals if it’s actually not already against the law to do that. So I mean, part of the problem here is people will mention some problem involving piracy which is already subject to criminal sanctions and fines, and in some cases jailtime in countries where they occur, and then use that as a rationale to create a new layer of rights for distributors at the expense of content owners. And for them to actually make the argument more persuasive in the context of cable systems, I think they should explain are there any gaps in the local protection that they already have that affect cable systems. In other words in any other Member States countries is it actually legal to retransmit, broadcast their distributor over cable systems without the permission of the right owners or the cable operators?
[…]>> ARIPI: Being really concrete to the question raised by KEI, the problem is that foreign cablecasters don’t have a standing to sue according to domestic legislation. So that’s why we are here pushing for having an international treaty.
Thank you.
>> CHAIR: Okay. I think that this exchange was good and we could continue to listen to other NGOs if they have some comments regarding the topic of cablecasting. We still open the floor. I see none. So in consequence, I invite the delegations to make some comments regarding the question posted by the Distinguished Delegate from Brazil, regarding the Chair’s note related to the making available situation, and its effects.
And if you have any comment on it, they will be welcome. I see no comments from the delegates here, so in consequence, I open the floor to NGOs to answer the questions posted by the Distinguished Delegate from Brazil. Probably you can help us in order to take into account your opinions. Just to remind you that the questions were regarding the Chair’s note and the inclusion of the making available situation.
KEI has the floor.
>> KEI: The making available right is something that we would associate with content and if the treaty is supposed to be not about the rights and the content, then it is inappropriate to have a making available right in this treaty.
>> CHAIR: Okay. Thanks for that money, KEI. And do we have any other comment coming from the NGOs or the broadcasters represented here?
EBU has the floor.
>> EBU: Yes, thank you, Mr. Chairman. Maybe come back shortly on the point of the cablecast organizations. Maybe we have to recall how this all — this debate started. Of course, we started off with broadcasting organizations and then it was recognized that also on cable networks the entities responsible for distribution also produced and distribute their own programming and that is why it was agreed or let’s say there was consensus to include that particular activity as well. — so the start of this discussion was to say broadcasting organizations and cable operators who act and behave as broadcast organizations in the same manner. That may be a way out for possible options on the drafting. On the question of the inclusion of the making available and content, I don’t think that’s — the making available right is necessarily linked with content because in the EU broadcast organizations already have, for 15 years, the making available right. Thank you.
>> CHAIR: Thank you very much for tackling the two topics. It is interesting to highlight that in the last intervention, it was mentioned the different roles that cable entities could take or undertake, and I heard that the cable entities — I heard that cable entities could add in the same manner some broadcasters in some of their activities, meaning that in others not, because there’s just a matter of distribution. So I want to point out this because I think it’s a very interesting point to take into account what we are saying here coming from — starting from the definition section is that the protection that is proposed, still bracketed in this treaty is not only including broadcasts — broadcasting but cablecasting. And the activity that we are emphasizing is the activity undertaken by this cable entities when they act as broadcasters, with the only difference that they do it by wire. It is becoming at least more clear that the intention coming from the definition is not to include those activities or entities which, while they undertake the cable-related activities, they don’t do — they don’t cablecast. Meaning by cablecasting to undertake this activities we mentioned yesterday like assembling and programming and having the legal entity to our responsibility. So I just want to highlight that part, because probably it might help for the discussion, the difference of some delegations have expressed their fear regarding the inclusion of cable entities and probably having the fear that such an inclusion could be in the activities in which the cable entities do not act as broadcasters, which is not part of this suggested provisions here.
However, if we concentrate on those activities made by cablecasters, by cable entities, which are closely related to the — or similar to the activities made by broadcasters, that’s why they — it is mentioned such activity as cablecasting, probably that might help, but even though we could still face some — either constitutional or regulatory situations, but in saying so, I’m not trying to imply that the concerns will disappear. Probably they are still there and they are very legitimate, but at least we will try to avoid the confusion that some — that could happen at some point of the discussion in regard of the intention behind the provisions related to cablecasting. That’s what I wanted to say after listening to some of you. Then we will listen to European Union
>> EUROPEAN UNION: Thank you, Chair. Just to comment on what you have been now referring to on protection for cablecasters we completely agree with you. The way we view the protection here is, of course, not for cable retransmissions not for cable operators that merely retransmit, but those that are cablecasters that would make new — new transmissions. But mostly we would like to go back to the question raised by — to the discussion on ondemand transmissions in the object of protection and making available rights, because, again, we just would like no point out that there are two issues. What is — the way we understand the Chair’s note under object of protection, is whoever transmissions of broadcasting or cablecasting organizations, but are made in such ways that members of the public may access them from a place and time individually chosen by them, we treat these transmissions as transmissions that should be protected under this treaty. That’s why it’s here. We understand it’s under the object of protection. We presented our point on this issue yesterday.
The making available right is, of course, a separate issue from this. It is a question whether when we — when we create the catalogue of rights where we look at what acts we want to protect broadcastings — broadcasting — broadcasting organizations from, we have to see whether we only want to protect broadcasting organizations where those would intercept the signal, retransmitted, show it simultaneously or — or very soon after the interception, so in a near simultaneous manner. Do we also want to protect broadcasting organizations from such situations where — where a pirate entity intercepts the signal, makes a fixation of the signal and then makes a transmission, and we think that there are these two ways of using — of using the signals of broadcasting organizations, and wherever such transmission by a pirate entity is done in a simultaneous manner, or where it is being used to then make on demand transmissions, but in both cases broadcasting organizations should have a possibility to stop such activity. And that is why we have always requested the making available right be included in this — in this treaty.
>> CHAIR: Thank you for that comment. I think we — I would like to develop this topic, which was raised by — initially by the Distinguished Delegate of Brazil, asking for a discussion on this matter, and we’re starting to get deep on it, and I would like to highlight that the — we should separate our discussion regarding making available as we have been invited to do, depending if we are talking about it as an object of protection or as a right.
In order to have clarity, I would invite you to concentrate in the discussion at this point on the object of protection and stating the difference with the use of — the possible use of making available in the rights section. The Distinguished Delegate from the EU has started to do so and probably I will — I will ask not only her, but other delegates to give your comments or questions regarding this, because I think that this very important clarification that might help our discussion. In my view, the object of protection is what kind of transmissions we are going to protect, while in the right section, our — the actions, no, that a broadcaster could take in order to prevent some specific acts. In that sense, one initial difference I would like to highlight is that when we talk about making available in the object of protections section, we are talking about the making available made by the original broadcasting organization, while we go to the right section, the act could be related to activities made by the pirates in order to — and give the chance to a broadcasting organization to take actions on it. I don’t want to get deep, because I think I need to listen you to more deeply on these important issue, even though it might be considered repetitive or I think that it was because it is crucial topic to discuss and this is the moment.
Further discussion is the term I use in the note and in my view, this further discussion — is — might happen today. So my invitation is to have — to exchange more views and don’t hesitate to express your questions regarding this or, your concerns because that’s why we are here at this point and we have the good luck to have the different NGOs and broadcasters here. So I invite you to reiterate or to give your opinions regarding this. In the meanwhile, and possibly with the same intention, which I invite them to follow, NABA has the floor.
>> NABA: I will take the opportunity to reiterate. NABA has made the intention that there should be no difference in terms of broadcasters and cablecasters. The problems of piracy and unauthorized exploitation across borders are largely the same for botanies hence the case for new updated protections are the same. In this respect, we agree with the views expressed by ARIPI.
>> CHAIR: Thank you very much for that statement. It is very clear.
Any other comment regarding my invitation. Please? Well, I know this is a very interesting and complex point, but probably, I will invite you to comment if these understanding is held complete. I’m not saying that it is, but at least to say that when we discuss making available in this section of object of protection, we discuss that such an activity made by the original broadcaster is going to be protected or not, while in the right section probably will be the chance for broadcasters to stop an authorized making available, which would be an activity made by the pirate. If this approach is helpful, please let me know, however, it might not be complete, but let’s exchange some ideas regarding this. Okay. I also invite NGOs to given me your thoughts but we have received one at this point — two comments at this point. Even if you are invited to ask for the floor, I recognize that this is a complex issue. I recognize that the invitation to have further discussion is still there and you have the legitimate reasons to make an evaluation and analysis of the implications of such an inclusion and the difference — the different views that we are discussing here regarding the making available situation.
It would be interesting to invite you to keep on discussing it. Now it’s time to go to the third section which is after the Chair’s note, regarding rights to be granted/protection. As you can see, there are two alternatives there, one of them, the chance to give broadcasting organizations the right to authorize or prohibit the retransmission of the broadcast to the public by any means and the alternative B is the same one, except by the type of right which is the right to prohibit the unauthorized transmission of their broadcast to the public by any means. Here you will know that there are still missing references to cablecasting organizations. When we refer to broadcasting organizations, depending on the — how we will define such a broadcasting. That’s still the first comment I would like to say in advance, because I’m sure that it will come.
But the difference that I expect the discussion will be focused is in use the terms “right to authorize or prohibit the retransmission of the broadcast or the right to prohibit the unauthorized transmission of the broadcast. The difference is we have recognized such a difference coming from previous international agreements. One is the — the — it uses the approach taken by are wrong convention and the other one is the TRIPS agreement. I remember one mentioning the TRIPS agreement in one intervention last session of the SCCR. If I’m not wrong, probably that was the Distinguished Delegate from Italy, and — and are some of the previous texts submitted by the different delegations expressed the right to authorize or prohibit.
So I consider that these two approaches could be discussed this time, and it will be interesting to listen to your views. So I open the floor for it.
Philippines has the floor.
>> PHILIPPINES: First of all, we extend our highest regard to the chair nor effectively shepherding the work of the SCCR. We also express the deepest appreciation to the Secretariat for its very efficient work. The two options, alternative A is more in line with the objective of addressing signal piracy. While the exclusive right to authorize and prohibit granted therein mirrors that of copyright, it is clear that the object of the protection extends only to the retransmission of broadcast signal and not to the work or the subject matter carried by such signal. The concern that the grant of this exclusive right would effectively allow them to control even out of copyright or public domain works is understandable, however, as long as the proposed treaty provisions reflect the signal-based approach, such exclusive right clearly cannot extend to unprotected subject matter. Thank you.
[…]>> UNITED STATES OF AMERICA: Thank you, Mr. Chairman and good morning, colleagues, and thanks for the — these alternatives. The US delegation has just a few points. As many know, in the US suggestion for a single right to to authorize the simultaneous or near simultaneous retransmission of broadcast signals over any medium, a number of concepts were very critical to that right. So we would respectfully like to see them reflected in your drafting alternatives, both A and B. So to be clear, we are suggesting to include the words “simultaneous or near simultaneous” before “retransmission” in both alternative A and B. The second change that we would like reflected in both alternatives is that this right attaches to broadcast signals, have the right to authorize or prohibit the simultaneous or near simultaneous retransmission of their broadcast signals instead of just broadcasts to the public.
And the third change are that we are recommending is to replace the phrase “by any means” with the phrase “over any medium.” So to explain as we were discussing yesterday, there is a narrow interpretation that is out there that by any means in WIPO-related rights treaties and I think even copyright treaties typically refers only to wire or wireless. So as I have recall, from the distant past, it would specify wire in the treaty or wireless and then revert to the phrase by any means to encompass both. We think that’s perhaps too stingy for the purposes of this current treaty. So therefore, we would propose the phrase over any medium, which would capture essentially over any platform. So I hope that was clear. I will be happy to send those textual changes forward, but that’s the concepts. Thank you so much.
>> CHAIR: Thank you very much for your specific suggestions. Of course those suggestions will trigger some additional comments. As you remember the definition proposed for retransmission was broad and in this case, the qualification of which retransmissions will be prohibited or authorized, we are receiving the suggests to limit them with a simultaneous or near simultaneous retransmission. So it will be interesting to listen to your views regarding that.
Regarding the suggestion of broadcast signals, I think we have discussed very much that from the very — from the beginning of this session, and I have taken note of that, trying to just use the term that will accommodate more the — the — that definition. And finally, you have pointed out before the consequences of using “by any means” and a chance to use “over any medium.” So I take note of that. EU has the floor.
>> EUROPEAN UNION: Thank you, Chair. We also have a strong preference for alternative A, these two alternatives and as you just mentioned, of course, it is posh to align the language of this — of this provision with the definition of retransmission. In the definition of retransmission stayed as proposed in your paper, a broad definition of retransmission, included delayed retransmissions then the wording would be sufficient.
Also we agree with the distinguished delegation of the United States that “by any means” can be changed to “over any medium.” However, if the definition of retransmission is limited to only simultaneous transmissions, then we would have to have an alternative wording here under this alternative A, that would also include the right to authorize and prohibit delayed transmission, and therefore, we would like to add here a language which would be corresponding to the alternative definition of retransmission that would read broadcasting organizations shall have the right to authorize or prohibit the retransmission and the delayed transmission of their broadcasts over any medium to the public. That would be our proposal to have here this alternative wording as I say, only in the case the definition of retransmission is limited to simultaneous — to simultaneous transmissions. That would be one point.
Our second point is that as mentioned previously and as mentioned on many occasions here, we would like to see in addition — in addition to all the options, so whether it’s option A or option B and the US proposal, we, of course — we of course respect there is the proposal of the language from the US delegation and, we agree that it should be added here as one of the options. In addition to all of these options, we would like to see a language that would — that would reflect the making available right, and this language would read like this. Broadcasting organizations shall enjoy the right to authorize or prohibit the making available to the public of their broadcasts/cablecasts in such a way that members of the public may access them from a place and at a time individually chosen by them. And we, of course, will provide you the wording in writing of this — of this proposal.
And our final point on this — on this section is that we need to include here also protection for pre broadcasts as currently we have — we have no reference to rights that would be [no audio].
>> INDIA: Thank you, Chair. On these two definitions, alternate B fits in with the original mandate. There is a right to prohibit the unauthorized retransmission of the broadcast to public by any means. As we discussed earlier about the word “by any means coming to alternate A in our opinion, it created additional rights. It creates, you know, further confusion about what it means by any means. Even if you substitute by the word” medium “are we talking about Internet as a medium or Internet as a means. This has been earlier raised in India consistently about going I don’t know the mandate in one sentence and also as raised by Brazil, the question on demand or catchup TV cervicas and how does it fit in terms of signal protection is not clear. So, again, the suggestion of ex U, further expanding alternate A needs more thorough discussion. Even simultaneous or near simultaneous, in order to accommodate time differences, which was one of the — I would call it kind of a minor way of looking at post fixation rights was acceptable at a point of time. But to make it as a — you know as expanded right under alternate A raises, you know, what you call is deep concerns. Thank you.
>> CHAIR: Thank you for your opinion. As you see the impact on the alternatives we have some different. The use of the terms depending on which alternative this might have some — might cause some different views, and that’s — that’s why they are here in order to try to find a conceptual based solution at this point. Thanks for that. Japan has the floor.
>> JAPAN: Thank you, Mr. Chair. Japan supports the statement made by the Distinguished Delegates from EU. We think that not only the right-of-way transmission but also fixation right and postfixation right, especially making available right is important in order to tackle signal piracy because in the case where only simultaneous or near simultaneous retransmission is protected under this treaty, it is difficult to grab the moment of September.
Consequently, the broadcasting organizations do not have enough effective counter measures to the signal piracy. Therefore, Japan proposes to continue discussion on right of fixation, right of post-fixation and making available right. Thank you, Mr. Chair.
>> CHAIR: Thank you very much for that opinion, which is very clear and adds to the debate.
The US has the floor.
>> UNITED STATES OF AMERICA: Thank you, Mr. Chairman, and regrets for taking the floor again, but I — I did want to support the EU’s intervention on the need to reflect some options for the protection of prebroadcast signals in the Chair’s Text. Just to elaborate a bit, over the years as many delegations recall, a number of options and Textual provisions have been discussed. They fall based on my notes largely into two categories. At times, the prebroadcast signal has been drafted in a way as an exclusive right, and in other organizations, it is simply the right to enjoy adequate and effective legal protection for prebroadcast signals. So there are two options right there, and we submit that probably a third option would be no such protection at all. Some of the course texts go way back into this committee’s deliberations and can be found in, I guess the old document 15/2, but I will leave the more detailed construction of those drafting successions to a later time, only to say that a range of options in the view of the United States, including an exclusive right, a right for adequate and effective legal protection and no such protection at all would probably be a good idea for this draft. Thank you,, Mr. Chairman.
>> CHAIR: Okay. Thank you for that — for that suggestion regarding the still ongoing discussion of protection of prebroadcasts, which — since it’s not — it has not reached consensus, but you are requested to reflect somehow that we could use the brackets to reflect that still under discussion.
With the options that you mention including that one option could be as you pointed out, no protection at all. Thanks for that suggestion. […]
CHAIR: No problem with my distinguished friend and delegate from Poland and EU has the floor. When I read Luxembourg, I understand it will be EU at this point. It looks like the Distinguished Delegate of Luxembourg is saying yes.EU has the floor.
>> EUROPEAN UNION: I think Luxembourg is concerned that all the our statements will be recorded as Luxembourg but I think there’s a way to distinguish. What we wanted to do is only to quickly support the options outlined by the delegation of the US, for the prebroadcast signal. Indeed 50 these seem to be the three options outlined and the three existing options of dealing with that. And if we had this kind of wording, I think we would cover all possibilities. Thank you.
>> CHAIR: Thank you very much. Now is the turn of Italy.
>> ITALY: Thank you, Mr. Chairman. We support what was said by the European Union. We would also like to make some subsequent remarks on the signals. The protection is for the signal and against signal theft, but this means that the protection also continues with the consequences of signal theft. We can’t merely imagine or envision that the activity takes place at the moment when the pirates steal the signal and afterwards if time has passed, then this theft no longer has any importance or consequence. If I steal money and then I buy something, for example, what does it mean, that it is only at the moment when I stole the money that I was responsible and then afterwards I can do as a like? Well, that would be a very — it’s a very naive approach. So if I steal a signal and then afterwards I use it in a different form subsequently, that does not exclude. Possibility of me having responsibility for this.
So the owners of the signal need to have the right to subsequently intervene and also in respect of the subsequent activities. We prefer alternative A from the point of view of the wording of the text, because it is clear that I have the right to prohibit a certain activity but only if I have the right to authorize this activity too. So these are rights which logically connected to one another.
Alternative B also implicitly recognizes this, because if I have the right to prohibit something, which is unauthorized, well, that means that I previously have the right to authorize it. And the consequence is if it’s unauthorized, then I can prohibit it. So we believe there’s a need to choose alternative A with all of the subsequent suggestions of the European Union.
>> CHAIR: Thank you for your comment. This is an invitation to think about the situation when we want to prevent an unauthorized act, and we could do so until some point, and then what would happen? That is the question posted by the Distinguished Delegate from Italy. And I think that we could try to answer that question as well. And I think that the point was also commented or raised by, for example, the Distinguished Delegate from India, when he recognized and I remember probably KEI comments before, that there was a simplity regarding the possibility to prevent such authorized acts over any platform, own the problem is the concerns were related to in trying to do so they were feeling comfortable with the right to prohibit, but when we were talking about exclusive rights or right to authorize the situation could change and have a different impact which is still under evaluation, and some concerns have been expressed. So that’s an interesting point because if we follow the approach of even in the right to prevent, not consider all the possibilities of retransmission over any medium, that — the situation that has been clearly described by the Distinguished Delegate from Italy could happen because at some point it’s possible to stop the illegal act and at some point, there will be no chance to stop such a pirate act. So that’s the good — the advantage of the — the differentiation among this right to prevent such an illegal activity, while it is still under discussion, because it’s a different situation when we talk about the right to authorize. This where we are until now and I think that we need some more opinions on that extreme.
>> NIGERIA: Thank you, Mr. Chairman, and good morning to everyone. My delegation is still consulting without specifically to alternative A or B, I just wanted to get some more clarity, based on the interventions that have been made, particularly by the EU. And I wonder to what extent, if we had a definition of broadcasting in the context we have it in alternative B., and the definition of retransmission to include simultaneous and near simultaneous retransmission, and even delayed transmission. I don’t know to what extent the broadcasting organizations in the EU could be restricted or hindered from making available as they would normally do without having the expanding or layering of rights to be granted or protected in this — in this draft treaty.
I say this because the broadcast is a signal piracy and we believe we will be expanding that scope by going into making available and all the other proposals that have been made. So I would just like some clarity from the EU on this question, please. Thank you.
>> CHAIR: Thank you very much. That’s an invitation to the EU that I make mine as well to try to give us some comments on that point, if possible. And in meanwhile, I have received a request from KEI
>> KEI: Once you get into things like authorizing uses of works, at that point, it really becomes appropriate for the person doing the authorizing to have some agreement with the owners of the content to be doing things like that. So copyright is there, and so when people are trying to work out the commercial relationships to exploit works, they should be done through contracts with the content owners. And most of these things, really — most of the things that are proposed here are substitutes for contracts and I think you want to be reluctant to interfere with the freedom to contract in this area, or the rights of the copyright owners to shape the contracts in a way that they desire. So I think that for a signal-based treaty, it’s important to do the minimum in terms of interfering with these commercial relationships and just try and focus on the things that are essential.
>> EUROPEAN UNION: So EU has the floor. Yes, thank you very much and thank you to the delegation of Nigeria for engaging in the discussion on the topic. Wherever the definition of retransmission as — as currently in the Chair’s text, where it also referred to simultaneous or delayed transmission by other entities would not be surprise to deal with our concerns and we agree, of course that this is the core question that the broader definition of retransmission, the more comfortable we feel with regard to our concerns, as this is still under discussions, as to the definition of retransmission and we don’t know what we did the outcome of these discussions. This is why we wanted to put on the table very clearly and in a very transparent manner this — this — this additional option of adding the making available right, because if the definition of retransmission is — is narrower or if it does not include such type of transmissions that are made to — in such way that members of the public can access them, the time chosen by them, then that would not be sufficient from our point of view. I hope I describe, but I’m also very happy to discuss this in more detail and looking at how — how we can find a common ground on this. Thank you
>> CHAIR: Thank you for that explanation. As far as I understand the relationship with the definition of retransmission, if it’s broad enough to cover all the types of activities, there were — in the view of the position, expressed by EU, they will — it will not be required in their view to add any additional term, but if the definition of retransmission is decided to be limited to the simultaneous or near simultaneous, they will find the need to interview us to this section of the rights, precision to include not only such limited retransmission but the third reretransmission and the additional making available. So that’s the way they structured their position. However, I think the question was not only in terms of — asking for clarification of their position, but probably the reasoning behind it, which was part of the discussion that we were undertaking until this point. We should take this time to analyze this deeply. This is the time. I think — please don’t hesitate if you don’t have clarity and what you want to do is to pose a question, because this is the time to make the question and to receive a comment if possible by one or two or more delegates or if — if that’s not possible to receive the comments by the — the NGOs here that we enjoy their presence here. EU is requesting for the floor.
>> EUROPEAN UNION: Just additional information to our position. We would be — it would be sufficient for us to have a very broad definition of retransmission, but I would like to emphasize only if it is broad enough to include what we have put on table as the — as the — as the right of making available. So it would have to be clear, that this kind of definition also includes such kind of transmissions. I’m not in a position now to say, however, what is proposed would do that or not, but it’s very clear that only such definition would be — would be sufficient, then, of course, we wouldn’t have to — we wouldn’t have to have additional wording in the section on the rights. As to — as to the reasons for this, I think we have already discussed them but I’m happy to repeat them, is the question that — and I think it was also what already — the Distinguished Delegate of Italy was also presenting, is that we don’t see a difference in the harm being done to — to broadcasting organizations and to the investment that has been put into — into the programming and into the broadcasting. We don’t see a difference but the signal is intercepted and it’s being retransmitted simultaneously, within 24 hours, wherever such signal is fixed and transmitted after 72 hours or after a longer time. We see the same — the same harm. It is the signal that has been intercepted. It is an illegal use of the signal of the broadcasting of organizations, and, therefore, we see merit for protection also in this — in this regard. Thank you.
CHAIR: Thank you very much. We have arrived to the time to have a break, but let me invite you to think about some ideas that have been important in this exchange. The first one is to be reminded the difference between the scope — the object of protection and the rights to be granted, specifically into the topic of the making available rights. I invite you to think the difference of protecting transmission made in a way that members of the public may access to it in a time and place elected by each one of its members, which, of course, is an activity made — that making available made by the original broadcaster to differentiate such an activity from the activity undertaken by the pirate in order to interfere — no, such a — to make, to undertake such an activity and the possibility to give the broadcaster and action to stop such an activity. That’s a difference that I invite you to be remind. One is when the broadcaster uses that specific way to transmit, if that is going to be the object of protection, and the second is that even though the broadcaster did not use that chance, the pirate did it because it caught, at some point, the signal and then it will exploit it afterwards through making available. And if we give the chance to the broadcaster to stop that activity. That’s first idea, please to think about it. If I’m wrong, please let me know. I don’t have any problems to be wrong. It’s just a way to think. Second idea to think about it is the problems that may cause giving the right to authorize, you know, in the right section, for — for, for example, the making available, because it has been said clearly about some delegates that there will be a difference if we give the right to authorize, than if we just give the right to prevent the illegal activities. That could be a key point, interesting to think about. So please give some thoughts on it, because eventually we can find a compromise solution on it. I don’t know if at this point but at least to think about it. And then we have all of the legitimate question that might come on why we need such — why we could need such an authorize — the right to authorize in such an event for the activities that have been mentioned before, not only for the simultaneous or near simultaneous retransmission, but for the deferred transmissions, for example.
>> CHILE: Thank you, Chairman. I’m sorey to take the floor at the point at which we are wrapping up, but I would like to clarify one point yesterday with regard to the definition of retransmission. We said that with regard to the phrase “by any means” we were still considering the protection of broadcasting through cable, and as was indicated last session, we were not prepared to support the protection of retransmission of broadcast through Internet. Despite the Chair’s summary of the last session, that there was no consensus on this point and now we find ourselves in this situation again.
>> CHAIR: You are analyzing your position, and you made that clear last time and thank you for making it clear now which is not in opposition. He understand it’s just the way you are analyzing still the consequences. You are not prepared yet or that we were looking forward to see a development of your analysis on it.
EU has the floor.
>> EUROPEAN UNION: Thank you, Chair. We think that your summary was was quite correct in reflecting the discussions, of course, it’s impossible to go through every single point because. So different options and proposals have been — have been given today on particular wording of — of your document. I think we just would like to outline, let’s say, five more simpleton points from our point of view, is that there was a discussion of definitions but — to be used in this treaty, are supposed to be aligned with definitions in other treaties and especially this concerns the definition of broadcasting and cablecasting, at least a number of delegations supported in position.
Then the other thing is the protection for the prebroadcast signal — on which we still need to have discussions and it’s very important for a number of the definitions — for delegations, sorry.
Then, of course the clear distinction and I think this is where everybody agreed it is only finding the right wording, clear distinction between the object of protection this this treaty, which is the broadcast or the cable cost and underlying rights and as you mentioned we, of course, agree that we have to find the correct wording but we think that there is an agreement on this.
And then, of course, where we are still having, in our view, a number of options is on the object of protection where in our view, there are two levels two, main levels of reflection still, whether object of protection should include — should include those transmissions over computer networks whether they are linear, such as simultaneous, or near simultaneous, and delayed retransmission, or whether it should be extended to also nonlinear transmission and whether — and the second level is whether it should be mandatory or it should be optional. That is where the Japanese proposal to make the object of protection as regards computer networks transmissions optional and not mandatory.
And the last point is, of course, the extent of rights where we have made, in our view, quite some progress. Of course, 9 important point is thence exclusion. Making available right and I would like to use the last second to say, in response to the Distinguished Delegate of India, that alternative B in rights would not cover the — the examples that we have provided because it only talks about retransmission. So it would not be sufficient to cover the examples that we have provided, where content and certain signals are there.
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But we are open to further discussions on this topic.
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>> CHAIR: Thank you. Brazil has the floor.
>> BRAZIL: Thank you for giving me the floor. And thank you for your summary of the discussions. We would like to single out one element on your summary that could perhaps be — would benefit from more detail, when you mentioned the delegations that had specific concerns regarding national legislation, you mentioned a possible solution actually was not discussed between the meeting. What I recall was that there was a proposal from the United States of specific language that — well, it you will after request from the chair, we confirm that the proposal from the United States would be suitable. So we would like this to be reflected.
And also regarding the next steps, regarding the text, we would like just to request more clarification on the process after this discussion on how we will take this forward, taking into account all the contributions that were made and the concerns that were raised. Thank you, Chair.
>> CHAIR: Thank you very much, and that was exactly what I was about to say, but as usual, Brazil it inviting me in the right moment to do so.
It’s my intention to pull into the Tex your contributions as I’m preparing our revised version. This revised version will be distributed but not some weeks before the next meeting we can have, it will be distributed in a very early moment because I have to tell you that my team, the excellent team led by Michelle Woods and we have started to work in order not to forget your very important contributions. We started yesterday. We did that yesterday as well, not only lunchtime but in the evening.
And so we are ready to distribute that probably after this meeting ends some — some weeks after that.