4pm Day 2 Paragraph 3 of Object of protection
Discussion on:
(3) Broadcasting organizations shall also enjoy protection for simultaneous or near simultaneous retransmission by any means as if such transmission were a broadcast.
Japan wants to make sure the internet is clearly included and the EU really wants to include as an object of protection “transmissions by broadcasting organizations in such way that members of the public may access them from a place and at the time individually chosen by them” or “on demand”. There is very little push back at this time except some proposals from the US. Here are a few interventions:
Chair: The first thing that I should say at this point is that I was warned by several delegations, not only in this room but in the exchanges we have during these two days, and some interventions in this room as well and yesterday, that we should be very careful in the use of the term, retransmission, here, because as we clarified, the term “retransmission” is defined as related to activity made by any other entity than the original broadcasting.
So in this case, we are probably referring to simultaneous or near simultaneous transmissions made by the original broadcasting. So that was an understanding that came up from the previous exchange. We have now arrived to this paragraph. But before entering into discussion on it, I would like to clarify that it was said that probably, instead of using the term retransmission here, we should just use the term, transmission, in order to, not to clash with the definition of retransmission that is only reserved for activities made by other entities than the original broadcasting. Well, that’s the first clarification. But of course, we could hear more views or different views on that. The floor is open for comments for paragraph 3.Japan has the floor.
>> JAPAN: Thank you, Mr. Chair. We think that transmission by any means stated in paragraph 3 includes transmission over computer networks, so it seems that protection for the transmission by computer network is mandatory in that paragraph 3. However, we think that there are different views among Member States, in whether or not to protect transmission signals over computer networks.
In this regard, Japan already proposed a provision in document SCCR/27/2/Rev as article 6 BIS. Article 6 BIS provides Contracting Parties with flexibility in determining how to protect transmission signals over computer networks. Therefore, Japan suggests that the Japanese proposal should be reflected in the subject text. Thank you, Mr. Chair
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>> EUROPEAN UNION: Thank you, Chair. We agree with your suggestion that the term, retransmission, here should be changed to transmission, as this is a transmission that is done by the broadcasting organization.
And we would also like to see this list of transmissions extended in such a way that the paragraph would read: Shall also enjoy protection for simultaneous, comma, near simultaneous or delayed transmission of their broadcasts by any means as if such transmission were a broadcast.
So just to explain, we think that in addition to simultaneous and near simultaneous transmissions, also delayed transmissions of broadcasting organizations should be protected. And the addition of, of their broadcast, indicates that we are talking here about situation where the broadcasting organization is transmitting simultaneously or in a near simultaneous manner or with delay its own broadcasts.
So, to clarify it, what we are talking here, of their broadcasts. We would ask for these additions. And as this is related to Chair’s note, as we have stated in previous meetings, we are also supporting the inclusion as an object of protection transmissions by broadcasting organizations in such way that members of the public may access them from a place and at the time individually chosen by them. So we would see this as a fourth category that would be included here as object of protection. I would like to already mention this at this stage. Thank you.CHAIR: Thank you. Going back to the Japanese comment, I will ask the Secretariat to read as the Japanese proposal contained in article 6 BIS of the annex, page 3 of document SCCR/27/2 in order to keep track of what we are receiving as suggestions. So please, Carole, would you help me with that?
>> CAROLE CROELLA: Article 6 BIS protection of signals transmitted over computer networks, proposal from the government of Japan. One, broadcasting organizations and cablecasting organizations shall enjoy protection for, brackets, transmission signals excluding on demand transmission signals, slash simultaneous and exchanged transmission signals of their broadcast, brackets, over computer networks.
Two, the protection provided for in paragraph 1, be claimed in Contracting Party only if legislation in the Contracting Party to which the broadcasting organizations and cablecasting organizations belongs, so permits. And to the extent permitted by the Contracting Party, where the protection is claimed.
3, it says 4 actually, the extent and specific measures of the protection granted in paragraph 1 shall be governed by the legislation of the Contracting Party where protection is claimed. End of the provision…
>> UNITED STATES OF AMERICA: Thank you, Mr. Chairman.
The U.S. delegation is sympathetic to the proposals raised both by the delegation of Japan and the EU. We have been considering ways that we might in this session reflect those proposals as part of a going forward text.
One of the ideas that we have been discussing and submitted to you and other delegations for consideration is essentially to recast paragraph 3 as a set of two options. As we recall over the last several sessions of this Committee, the protection of over the air broadcasts and the exclusion of webcasts was widely accepted by almost all delegations.And that could comprise an option one under this, in this place. The suggestions that we have heard today from the delegation of Japan with respect to protection for on-demand transmissions, and we have heard also from the delegation of EU for deferred transmissions and even the making available right, could be established as a separate option, optional level of protection that members could adopt.
That is the suggestion. We are happy to work with other delegations on specific drafting to make these two options workable. Thank you, Mr. Chair.>> CHAIR: Thank you very much for that offer, which I take. […] As you said, there are what you call options, two options, and but as far as I understand you, they are, the first option reflects an agreement of inclusion, and the second option does not reflect an agreement, but could be optional, no? For that.
And so it would be interesting to follow the approach of trying to bring us an effort of drafting that with, in coordination with other delegations here, in order to reflect that properly in a possible revised version. Thank you for that.…
>> EU: Thank you, Chair. This is just to clarify the options that were outlined by the delegation of the United States, as to understand better. We understand that one option could be paragraph 3 as it stands now, so with reference to simultaneous and near simultaneous transmission, as it should be.
The second option could be like we proposed to have a broader protection that would include also delayed transmission, and transmission on demand. The third option would be what is proposed by the delegation of Japan, to have protection for simulcasting, protection for webcasting on an optional basis.
The difference would be that the first two options would be mandatory protection, but one narrower and one broader. So one narrower only for simultaneous or near simultaneous. The second option would be still mandatory protection but on a broader basis. And what we, our understanding at least of the Japanese proposal is that it is a protection but on the optional basis. So we would have three such options. At least we see three such options here.
But of course, if there is some more clarification, we will be very interested to hear. Thank you>> CHAIR: Thank you for your opinion. U.S. has the floor.
>> UNITED STATES OF AMERICA: Thank you, Mr. Chairman.
We are still consulting internally on the three options, but on a preliminary basis, we think that while simulcasting certainly should be reflected, we want an option that would allow flexibility for certain delegations who are not at this point able to sign on to a simulcasting right to have that flexibility.
We will come back to you with further thoughts on this.>> CHAIR: Thank you very much. Sorry, go on.
>> UNITED STATES OF AMERICA: As long as I have the microphone, I would also like to return to a comment that I began, but stopped short of. Like the delegation of Colombia, we did see a certain tension between paragraph 2 and 3. I think you suggested one drafting approach to solve, the resolve that tension.
Here is another one. We could begin paragraph 3 with the phrase, notwithstanding paragraph 2 above, and that would allow both paragraphs to coexist. Thank you so much, Mr. Chairman.
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