Notes from September 28, 2004

These are my notes from the session on the broadcast treaty at the WIPO General Assembly.

Thiru Balasubramaniam
Geneva Representative
CPTech

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Protection of Broadcasting Organizations

Deputy Director-General Rita Hayes: Mrs. Hayes noted that the
WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms
Treaty (WPPT) of 1996 did not cover the protection of
broadcasting organizations. Consequently, the Standing Committee
on Copyright and Related Rights (SCCR) began a program of work
on a treaty for the Protection of Broadcast Organizations. She
remarked that document WO/GA/31/7 stated that:

“the WIPO General Assembly is recommended to consider, beginning
at its September/October session in 2004, the possibility of
convening, at an appropriate time, a diplomatic conference on
the protection of broadcasting organizations” (WO/GA/31/7).

She noted that the final operative paragraph of document
WO/GA/31/7 (para 4):

The WIPO General Assembly is invited to note the information
contained in the present document and to consider approving the
convening of a Diplomatic Conference on the protection of
broadcasting organizations to be organized at an appropriate
time.

Mrs. Hayes noted that the 11th session of the SCCR took place
from June 7 to 9, 2004. The next session of SCCR will take place
between November 17-19, 2004 (Point 4) of WO/GA/31/7. The Chair
of the 11th Session of the SCCR is working on a consolidated
draft text for a proposed treaty for the protection of broadcast
organizations.

India: The representative from India cited Article 14 of the
TRIPS Agreement which calls for protection to broadcasters,
performers and sound recorders. He noted that India has already
implemented the obligations of Article 14. The representative of
India asserted that the ambit of the broadcast treaty served a
TRIPS plus agenda. He noted that developing countries were
having difficulties implementing Article 14 of the TRIPS
Agreement and had difficulty ascertaining the implications of
TRIPS obligations. The representative of India emphasized that
the TRIPS Agreement should contribute to the transfer of
technology as detailed in purpose and objectives of the TRIPS
Agreement. He maintained that there was no broad consensus on
this treaty in the SCCR. He noted that the treaty also serve the
interest of content creators and society at large. The
representative from India was at a loss for words to the final
operative recommendation of document WO/GA/31/7. The General
Assembly had not read the consolidated draft text. India wanted
to adop the language from final operative paragraph of
WO/GA/31/4 for the General Assembly “take note” for
consideration but modified appropriately with respect to
document WO/GA/31/7. India indicated the need to read the
consolidated text before approving the text at the General
Assembly. India requested that this decision be suitably
amended.

Egypt (African Group): The African Group is in favor of
protection for broadcasters but wants balanced protection that
takes into account all stakeholders. The priority is to promote
access to knowledge. There are still considerable differences in
the scope of protection. African wisdom promotes care and
caution. It would be desirable to abide by the actual text of
the Chair’s recommendation.

Japan: Japan noted that extensive discussions on the protection
of broadcasting organizations at the SCCR since 1998. It is
extremely important to establish broadcasting treaty. Japan
wanted a decision on Diplomatic Conference.

Mexico: Mexico was in favor of convening Diplomatic Conference
once a consensus was reached.

Netherlands (European Community and its Member States): The
Netherlands indicated that there was a need a treaty for the
protection for broadcasting organizations. The EU was in favor
of a decision to convene a Diplomatic Conference at an
appropriate time. This decision should be taken by the General
Assembly based on the SCCR’s recommendation.

China: The representative from China indicated that making a
decision on an appropriate time is difficult. There must be a
balance of interests in this treaty. This treaty should not
neglect the protection of AV performers.

South Africa: South Africa supported the African Group and India.
The information to be debated in November 2004 is relevant for
the decision making process. This should be an agenda item in
September 2005.

Brazil: Brazil noted that several of provisions in the treaty
proposal are controversial: webcasting, provisions on
technological provision measures, cablecasting rights, and
extension of casting rights.. These treaties must take into
account consumer interests., limitations and exceptions. The
broadcast treaty must not hinder free and open access to the
public domain. The limitations on access to knowledge run
contrary to the MDGs and the objectives of the World Summit on
the Information Society. The proposed treaty deals with complex
subject matter. Brazil agrees with calls for signal protection
based approach. In the spirit of SCCR recommendation, Brazil
called for keeping this item as an agenda item in the next GA in
2005.

Canada: Canada recognized the merits of a Diplomatic Conference
at an appropriate time but it noted that it would be impossible
to assess this decision till a consolidated text is presented
Nov 2004. Canada noted its support that the protection of
broadcasters remain an agenda item for the General Assemblies in
2005.

USA: The US noted that the June SCCR passed a resolution that
the General Assembly would make a decision to convene Diplomatic
Conference based on the decision of the SCCR. The US urged the
General Assembly to authorize the scheduling of a Diplomatic
Conference.

Chair: The Chair noted that there was unanimity in this idea:
Nobody challenged the idea of convening a Diplomatic Conference.
Nobody considered it possible to decide on a date today. He
recommended that the General Assembly could say yes to a
Diplomatic Conference but was not in a position to determine a
date.

The Chair indicated that there were two options.

The first options was that the Assembly agree to put this topic
as an agenda item for the Assembly in September/October 2005. He
noted that from that date, it could take at least 6 months to
convene a Diplomatic Conference.

The second option was that after the SCCR completed its work,
WIPO could convene an extraordinary General Assembly. This
decision would needed unanimity from all Members and a formal
agreement from all Members. It was not for a SCCR to determine
the convening of a Diplomatic Conference.

India: India noted that the chair wanted to quickly advance an
agenda. India stressed that there was one article in the
proposed treaty which kept the General Assembly from convening a
Diplomatic Conference. There existed very substantial
differences among Member States. India noted that it was not
standard practice to convene extraordinary session of GA. India
emphasized that it was very expensive for WIPO convene an
extraordinary session of the General Assembly. India noted that
the Organization is facing very severe financial difficulties.

Chair’s decision:

“The General Assembly requests the Standing Committee on
Copyright and Related Rights to accelerate its work. The
"Protection of Broadcasting Organization" will remain an agenda
item at the next General Assembly in 2005. The General Assembly
in 2005 will decide, at an appropriate time, on the possibility
of convening of a Diplomatic Conference."

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