EXCESS COPYRIGHT: WIPO Broadcasting Treaty

The Canadian government has made its report on the recent WIPO meeting concerning the proposed WIPO Broadcasting Treaty available. It follows below. The responsible officials are to complimented for providing this useful information in good detail and in a timely way.

As far as I know, this is not online.

HK
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Report on June 2007 Meeting of the WIPO Standing Committee on Copyright and Related Rights

For several years the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) has been discussing a proposed treaty on the rights of broadcasting organizations. The WIPO Assembly in 2006 mandated the SCCR to have two special sessions devoted exclusively to the discussion of the proposed treaty. The first session was held in January 2007.

This is a report on the second special session of the SCCR which was held June 19 - 23, 2007 at WIPO headquarters in Geneva.

The primary purpose of the meeting was to finalize a Basic Proposal (draft treaty) on the rights of broadcasting (and cablecasting) organizations for purposes of a diplomatic conference tentatively set for Nov. - Dec. 2007. The meeting failed to agree on such a text. Therefore, there will be no diplomatic conference in 2007.

The Canadian delegation supported the recommendation that it would be premature to have a diplomatic conference in 2007.

The key elements of the formal Conclusions of the second special session are that the SCCR will resume regular sessions and the proposed treaty will remain on the agenda. Other items will also be on the agenda.

It is worth noting that a draft version of the Conclusions recommended aiming for a diplomatic conference in 2008 but a number of delegations opposed having any recommended date in the Conclusions and therefore the draft was not accepted by the meeting.

The next SCCR meeting is expected to be in late November (presumably in the time period set aside for the diplomatic conference). Regular SCCR meetings usually last for three days.

The Conclusions must be approved by the WIPO Assembly which meets Sept. 24 to Oct. 3 2007. At this point we assume the Conclusions will be accepted without amendment but that is impossible to say for certain. (A link to the Conclusion is below).

The June Meeting

Most of the meeting was in an informal session meaning that only national delegations (not observer delegations) were in the room. The informal session will not be included in the WIPO report of the meeting.

The basic document discussed was the Chair's non-paper of April 20, 2007 (see link below).

There were two formal submissions to the meeting made by Canada and Mexico (see link below). The US made a formal statement on its overall position (see link below).

The Chair worked on an expanded version of the April 20 non-paper which included many of the suggestions made by delegations during the informal meeting. This non-paper has no official status.

Comments Made on the April 20 Non-Paper

There were comments by delegations on many articles in the draft. The notes below summarize only some of the comments on the most important or controversial articles.

General

During the informal session one industrialized country suggested that the treaty should include a provision that the broadcaster could not assert rights against the content owner or a person licensed by the content owner.

Several developing country delegations objected to the fact that the public interest and access to knowledge provisions had been moved into the Preamble as opposed to being in substantive articles as in document SCCR 15/2.

Art. 7 Protection of Broadcasts

There was some discussion about whether the rights should be "exclusive rights" or whether other forms of protection should be allowed, e.g. a prohibition, administrative remedies. One industrialized country expressed the view that there should be no exclusive rights but that broadcasters should nevertheless have the ability to directly enforce remedies.

There was some discussion of the meaning of "deferred" in "deferred transmission". One developing country suggested that it might be 24 hours. One industrialized country also expressed the view that there should be a clear limit on the duration of this protection.

As in previous meetings certain delegations, especially India, objected to the fact that this wording would prohibit retransmission "by any means". Several delegations see this wording as giving broadcasters a positive right to authorize retransmission over the Internet. This may be reinforced by the fact that the right is "an exclusive right of authorizing" as opposed to a right to prohibit.

One developing country delegation said that the rights should be limited to "traditional" broadcasts and cablecasts, i.e. that the word "traditional" should be added to the text of the treaty. It said that this would be consistent with the mandate set by the 2006 WIPO Assembly.

One developing country delegation said that individual countries should be allowed to opt out of any aspect of Art. 7. (The Canadian submission would allow a limited opt-out with respect to free over-the-air signals.)

The Canadian delegation outlined its position on retransmission as stated in its written submission.

Art. 9 Protection of Encryption and Rights Management Information

As noted in its formal statement (see link above) the USA favoured mimicing the wording in the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Some developing country delegations are opposed to any article of this type.

The Canadian delegation said that the electronic rights management information protected under the proposed article should be factual or identifying information.

Art. 10 Limitations and Exceptions

A number of developing country delegations have made written submissions on this issue.

At the meeting, some delegations suggested that the first paragraph (which allows for limitations and exceptions comparable to those for copyright works and other related rights) should be made mandatory. One industrialized country suggested that the exceptions in the first paragraph should be made mandatory on a mutatis mutandis basis.

Other Issues

There remain wide divergences of views including on what is meant by "signal-based approach" to protection.

Conclusion / Future Work

At this point it is impossible to predict how the discussions may evolve in the SCCR meetings in 2008.

Contacts for Further Information

For any further information on the meeting or future work please feel free to contact:

Bruce Couchman

Intellectual Property Policy Directorate

Department of Industry

(613) 952-2621

couchman.bruce@ic.gc.ca

Danielle Bouvet

Department of Canadian Heritage

(613) 990-6235

Danielle_Bouvet@pch.gc.ca

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Documents for the June SCCR meeting (including links to Canadian and Mexican written submissions) may be found at:

http://www.wipo.int/meetings/en/details.jsp?meeting_id=12744

http://www.wipo.int/meetings/fr/details.jsp?meeting_id=12744

The Conclusions of the meeting may be found at:

http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=79838

http://www.wipo.int/meetings/fr/doc_details.jsp?doc_id=79838

The WIPO Press release after the meeting may be found at:

English

http://www.wipo.int/pressroom/en/articles/2007/article_0039.html

French

http://www.wipo.int/pressroom/fr/articles/2007/article_0039.html

An unofficial version of the statement by the U.S. delegation may be found at