Wednesday, May 17, 2006

US delegation opposes consumer groups' inclusion on WIPO ACE panels

17 May 2006
Thiru Balasubramaniam

As mentioned in my earlier blog entry, WIPO hosts enforcement beauty contest (aka Advisory Committtee on Enforcement), the WIPO Advisory Committee on Enforcement (ACE) is taking place from 15-17 May 2006. The first two days saw 15 presentations, 13 made by WIPO Member States Antigua & Barbuda, Australia, Brazil China, Lebanon, Malaysia, Nigeria, Romania, Serbia & Montenegro, South Africa, Spain, Sri Lanka and Switzerland and 2 presentations from industry group NGOs, the International Trademark Association (INTA) and the International Federation of Phonogram and Videogram Producers (IFPI). The delegate from INTA was Ms. Toe Su Aung the General Counsel for the BATMark (British American Tobacco's IP management company).

Yesterday, the delegate from Third World Network made a pointed intervention to the Committee which noted the absence of any consumer voices on the WIPO ACE panels. Today in its intervention, Brazil called for the consumer voice to be taken into consideration at these deliberations and requested that consumer organizations be represented in the WIPO ACE panels. The delegate (Paul Salmon) from the United States, however, opposed the inclusion of consumer groups on panels on the Advisory Committee on Enforcement as he noted that consumer groups did NOT fall into the mandate of the ACE which only mentions consultations with the private industry. Argentina took the floor to call for greater public interest NGO participation in this body; Brazil also reiterated its point that all stakeholder views be taken into consideration in the WIPO ACE.

Monday, May 15, 2006

WIPO hosts enforcement beauty contest (aka Advisory Committtee on Enforcement)

15 May 2006 (Monday)
Thiru Balasubramaniam
Morning Session

The World Intellectual Property Organization (WIPO) is holding a beauty contest on enforcement, the third session of the Advisory Committee on Enforcement (ACE) which takes place at the WIPO headquarters in Geneva from 15-17 May 2006. For the first two days, presenters from Antigua & Barbuda, Australia, Brazil China, Lebanon, Malaysia, Nigeria, Romania, Serbia & Montenegro, South Africa, Spain, Sri Lanka and Switzerland will make interventions on "awareness raising, training and education in the field of IP enforcement". In addition, two industry group NGOs, the International Trademark Association (INTA) and the International Federation of Phonogram and Videogram Producers (IFPI) are also on the agenda. Although it may be too sweeping to label all the presentations thus far as panegyrics to the enforcement of "intellectual property", it would appear that the main purpose of the ACE is for WIPO Member States to engage in an exercise of self-congratulation under the guise of an information exchange on their respective enforcement, training, and awareness raising activities

The morning panel included the following speakers (see links for written presentations): (1) H.E. Mr. Ion Codescu, Secretary of State, Ministy of Justice, Romania, (2) Professor Dora N. Akunyili, National Agency for Food and Drug Administration and Control (NAFDAC), Director-General, Nigeria, and (3) Dr. Karunaratna, Director of Intellectual Property, IP Office, Sri Lanka.

Among the nuggets of information gleaned from the morning session was the fact that Romania ratified the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty in 2001 as part of its efforts to harmonize its legislation above and beyond what is required by the TRIPS Agreement even before it was ratified by 15 original Member States of the European Union (Romania is the on the EU accession track). Professor Akunyili from Nigeria noted that parallel importation of pharmaceuticals was not permitted in Nigeria because it caused confusion in efforts to stem counterfeiting. One would hope that further discussions of this Advisory Committee on Enforcement do not further conflate the parallel importation of legitimate patented products with the practice of counterfeiting.

Friday, May 12, 2006

Libertarian think tank (IPN) throws drinks/canapes bash on eve of World Health Assembly

12 May 2006
Thiru Balasubramaniam

The libertarian think tank, International Policy Network (IPN) an active defender of GMO foods, water privatization and the tobacco industry, and a constant foe of of efforts to control global warming is hosting a drinks and canapés reception at the five-star Hotel Intercontinental in Geneva on the eve of the World Health Assembly (Sunday, 21 May 2006) from 6:30 PM to 8:30 PM.

The swanky reception will be preceded by a panel moderated by Julian Morris, Executive Director of the International Policy Network. Panellists include: Bibek Debroy from PHD Chamber of Commerce and Industry (India), Barun Mitra from the Liberty Institute (India), Jasson Urbach, Africa Fighting Malaria (South Africa) and Philip Stevens, International Policy Network (UK). The IPN seminar will focus on "intellectual property, innovation and health" and the panellists wil "provide alternative perspectives on the intellectual property debate that members of the World Health Assembly will consider during its 59th annual meeting (22-27 May)". These "alternative perspectives" will no doubt parrot the findings of the Civil Society Report on Intellectual Property, Innovation and Health, a coalition of 16 libertarian NGOs. Although the title of this report mimics the WHO Commission on Intellectual Property, Innovation and Public Health (CIPIH) the Civil Society report focuses on health systems, taxes and tariffs on medicines, price controls and drug registration.

Barun Mitra's Liberty Institute is a member of IPN. According to, Barun Mitra "lobbied hard for commercial approval for Monsanto's GM cotton, claiming there should be 'free access' to new technologies without any government interference". The Liberty Institute is a supporter of the tobacco industry as well. Mitra contended that the "anti-tobacco crusade from the West, like the environmental one as manifested at the WTO meeting Seattle last December, is the newest manifestation of the neo-imperialistic desires". Bibek Debroy has been a fellow of the Liberty Institute; he is a critic of compulsory licensing in developing countries. Jasson Urbach's outfit, Africa Fighting Malaria, is an NGO dedicated to promoting the use of DDT to combat malaria. It's director is Richard Tren who delivered a rather inelegant critique on the proposal to create an Essential Patent Pool for HIV/AIDS at last year's World Health Assembly.

Governments and health campaigners truly dedicated to the protection of public health and the promotion of access to medicines for all may want to consider giving this reception a miss, no matter the quality of IPN's drinks or canapés.

Monday, May 08, 2006

WIPO copyright committee comments on Brazilian and Chilean proposals

9 May 2006
Thiru Balasubramaniam

[This blog entry is indebted to the meticulous notes takend by: Jason Pielemeier-Yale Information Society Project, Gwen Hinze -Electronic Frontier Foundation, and Rufus Pollock- Open Knowledge Foundation]

The WIPO Standing Committee on Copyright and Related Rights (SCCR) which met last week (1-5 May 2006) to deliberate on a proposed broadcasting/webcasting treaty played host to robust discussions on limitations and exceptions. At stake in this treaty are practices we now take for granted but are now under threat including podcasting and C-Span's broadcasts of public events including Congressional and other political events. Witness the recent C-Span takedown order of YouTube's broadcast of Stephen Colbert's speech at the White House Correspondents Dinner asserted through copyright. One can only imagine how such disputes would play out with an additional layer of exclusive broadcasting rights.

At the heart of the debates on limitations and exceptions (L&E) were proposals submitted by Brazil and Chile at the previous SCCR in November 2005 and the Peruvian proposal submitted during last week's meeting which included creative proposals on access to knowledge, defense of competition and protection and promotion of cultural diversity to safeguard the public interest. Much of the deliberations focused on whether the proposed limitations and exceptions were "consistent" with the principles of the 3-step test.

The first part of the Brazilian proposal (Article X) included a "General "Principles" clause stating that,

Nothing in this Treaty shall limit the freedom of a Contracting Party to promote access to knowledge and information and national educational and scientific objectives, to curb anti-competitive practices or to take any action it deems necessary to promote the public interest in sectors of vital importance to its socio-economic, scientific and technological development.

The second part of the Brazilian proposal (Article Y) included a "The Protection and Promotion of Cultural Diversity" clause stating that,

Nothing in this Treaty shall limit or constrain the freedom of a Contracting Party to protect and promote cultural diversity. To this effect:

(a) In modifying their domestic laws and regulations, Contracting Parties will ensure that any measures adopted pursuant to this Treaty are fully consistent with the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

(b) Contracting Parties also undertake to cooperate so as to ensure that any new exclusive rights conferred by this Treaty are applied in a manner supportive of and that does not run counter to the promotion and protection of cultural diversity.

One early source of contention was the placement of the Brazilian and Chilean proposals in the working draft not in the draft basic proposal (DBP). The draft basic proposal was perceived to contain mature proposals ready for an early harvest while the working draft was deemed to have secondary status as a document containing "alternative language". After repeated interventions by Brazil, Chile and support by other countries insisting that these aforementioned proposals be treated on an equal footing in one text, the Chair (Mr. Jukka Liedes of Finland) agreed to consider the proposals in the draft basic proposal and the working paper on equal footing.

Japan stressed that in its view the Brazilian language was inconsistent with the WIPO "Internet" treaties (WIPO Copyright Treaty and WIPO Performers and Phonograms Treaty). The Japanese delegate characterized the Brazilian provisions as misleading and suggested that the 3-step test could adequately address concerns on limitations and exceptions.

Mr. Tilman Lueder (European Commission) who spoke on behalf of the European Communities and its 25 Member States and the acceding countries of Bulgaria and Romania noted his delegation's view that Brazil's "General Principle" Article X was preambular in nature and thus not appropriate as operative text. Ms. Julie Samnadda (European Commission) stressed that cultural diversity was something that the European Communities regarded very seriously. She stated that,
[w]e are a party to the UNESCO convention. Nevertheless, as regards to copyright norm-making, we have traditionally taken the view, I draw your attention to Recital 17 of UNESCO Convention on Cultural Diversity which states that parties recognize importance of IP
The view of the Community has always been (in that and previous treaties - WPPT/WCT, which we have adopted but not yet fully ratified) of the view that healthy copyright protection goes hand in hand with cultural diversity.

In his response, the Brazilian delegate noted that the objectives of access to knowledge (a2k), education and science were common to the majority of WIPO Member States. Brazil stressed that it wanted to safeguard a2k, education and science from encroachment from an untested new layer of rights that would arise from this Treaty especially considering unknown consequences and future technological developments and the uncertainty that still existed as to whether the Treaty covered signal or content.

With respect to the Japanese intervention, Brazil reminded Member States that Brazil was not a party to the WIPO "Internet" treaties and "did not accept these treaties as a basis for negotiation' or as precedent". The delegate noted that

[w]e think in many ways these depart from IP tradition and do not benefit developing countries...Regarding the EU comment as to the public interest clauses as being more preamble in nature. We think not because there are many such types of general principle articles found in other agreements. Article 7 of the TRIPS Agreement on objectives is just as general in nature as our proposal. We think they are texts of a similar nature and in TRIPS this general wording found its way in under a substantive article. It loses weight if it is relocated to the preamble part. It needs to have the same legal weight and the same treatment as the objectives of protecting private rights. We do not favour treating private rights on a better footing than public interest objectives.

The delegations of Egypt and South Africa gave unequivocal support of the Brazilian proposal. The Egyptian delegate noted that the importance of including Article X on General Principles and Article Y on the Protection and Protection of Cultural Diversity in the operative part of the Treaty.

The Chilean "Defense of Competition" proposal tracks some of the language of Article 40.2 of the TRIPS Agreement. With respect to Chile's submission, the Australian delegate noted his concern that the language seemed to impose a positive obligation to incorporate "competition principles with respect to intellectual property" in general, not just the rights proposed under this treaty". The Australian delegate echoed Senegal's concern that the nature of the Chilean article on competition "seemed somewhat wider than the subject matter of the broadcaster's treaty".

Japan objected to Chile's proposal on defense of competition by noting its absence in the WIPO "Internet" Treaties.

Chile responded to Australia's concerns by noting that the Defense of Competition language had no obligation with respect to other types of "intellectual property" not covered by the broadcasting Treaty. With respect to Japan's concerns, Chile wryly responded by stating that,
[t]here is the question of Japan that this obligation allowed by art x [Defense of Competition provision] will interfere with WIPO treaties, the intention of this article is not to affect any other agreement. We believe that the better option for this treaty is not to have an effect on other agreements. Therefore that shouldn't be a problem. Also, with regard to the question of Senegal on the uncertainty that could result from paragraph 2, this provision is mirrored from 40.2 from TRIPS, which is already a standard principle in international law. Therefore we are not creating any additional uncertainty.

At the close of discussions on "General Principles" and "Defense of Competition", Brazil underscored the point that Members could not use the WIPO "Internet Treaties" as a basis for negotiations and the fact that since Members were entering into unchartered waters, they needed safeguards on board before embarking on any new broadcasting Treaty negotiations.

Thursday, May 04, 2006

WIPO copyright committee discusses simulcasting/webcasting and mulls way forward

5 May 2006
Thiru Balasubramaniam
16:59 (Geneva time)

This is the last hour of the 14th Session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) meeting yet again to discuss a proposed treaty for the protection of broadcasters, cablecasters and webcasters. Simulcasting has been discussed over the last two days. An example of simulcasting would be the British Broadcasting Corporation (BBC) showing a speech or a movie in the public domain on its website.

As currently defined by WIPO's draft basic proposal, simulcasting is covered by Article 6
Broadcasting organizations shall enjoy the exclusive right of authorizing the retransmission of their broadcasts by any means, including rebroadcasting, retransmission by wire, and retransmission over computer networks.

This wording would give broadcasters the right of simultaneous retransmission over a computer network. Article 6 has been viewed with concern by some as a Trojan horse mechanism of giving "webcasting" privileges to traditional broadcasters. The Chair (Jukka Liedes of Finland) noted that there was considerable opposition to the inclusion of webcasting but some broader support for simulcasting. However, delegations such as India, Brazil and South Africa expressed reservations to including simulcasting in the treaty. India suggested deleting the phrase "by any means" and "over computer networks".

At the wrap-up of last night's session, Mr. Liedes underscored the importance he attached to retransmission rights which would include simulcasting. Mr. Liedes stressed that deleting references to simulcasting would empty the whole treaty of its purpose. He also noted that the deletion of simulcasting would deprive traditional broadcasters of protection of their broadcasts retransmitted over the internet.

There is a danger if simulcasting is covered under this treaty, webcasting will creep back into a later formulation of the Treaty text or a subsequent protocol as evidenced by the intervention of the United States of America today which articulated its concern that excluding webcasting while including simulcasting would confer upon broadcasters and cablecasters an unfair advantage over such corporations as Yahoo.

The delegate from India noted that while his delegation could "sympathize with concerns of broadcasting organization about signal piracy or unauthorized retransmission over computer networks" this would be a difficult obligation to administer because of limited knowledge of internet enforcement.

He stressed that it is
difficult to know where source of digital transmission is, so to be effective enforcement would amount to effective regulation of entire Internet. we therefore find it very difficult. While it seems attractive conceptually, it is fraught with many practical, legal uncertainties. Article 6 needs to be cleansed of the words "by any means" and "over computer networks"...Simulcasting or transition by computer networks should not be contained in the draft basic proposal on traditional broadcasting...I would remind many that we often have technology neutral goals but in actuality many member states have much more specific laws relating to the Internet and other forms of digital transmission and case law on the subject is extremely limited. Therefore it is better and more appropriate for all of us to hasten slowly and not plunge, until we know the consequences of what is involved.

Mr. Tilman Lueder from the European Commission speaking on behalf the European Communities and its 25 Member States gave a lengthy intervention on the nature of simulcasting. Mr. Lueder highlighted that in large countries such as the United States, Brazil, India and Canada, "retransmission is the lynchpin to make a signal more perceptible over long distances" where signals could not travel coast to coast but needed to be relayed. Mr. Lueder noted that the protection of digital signals was of utmost importance and underscored that fact that television is mostly about entertainment and not just limited to educational and scientific purposes. He remarked that if broadcasters and those who scheduled and assembled content were not protected, there would nothing left to steal.

India responded by thanking the European Communities for being educated on the distinction between analog and digital signals. He stated that content is now being digitalized, but the difference is that the content may be digitalized but it may still be transmitted over analog waves.
We are talking about retransmission on the terrestrial network where signal does get abated and needs to get 'boosted' and retransmitted, whereas digital signal does not abate. Satellite carriers carry digital signals in a more efficient manner. Therefore 'retransmission' has a very different meaning today. Notwithstanding this issue as to what retransmission exactly means. What we are talking about is the IPR over those transmissions. We need to define the broadcast clearly so that we know who has IPR over that broadcast. When we talk about the internet we are talking about something outside of traditional broadcasting. My understanding of Berne and TRIPS is that even the content owners don't have full rights over their work on the internet to then assign a new right (which does not yet exist) to broadcasters in relation to the internet is unsupportable. What we are really talking about is the IPR over those transmissions and as I mentioned, the broadcast itself has to be defined to understand who has the IPRs over the content. Copyright owners do not have full and adequate protection themselves on the Internet, therefore to give broadcasters rights over the Internet becomes even more untenable. Therefore that is why we have been talking about the IPRs over content. A broadcast needs to be defined with respect to its relationship with intellectual property.

As there was considerable opposition to webcasting and simulcasting in the draft treaty text for the protection of broadcasting organizations and cablecasting organizations, Mr. Liedes suggested the modalities for the following SCCR:

A. Protection of traditional broadcasting and cablecasting organizations.
1. One more meeting of the SCCR before the General Assembly (September/October 2006)

2. The agenda of that meeting will be confined to protection of broadcasters and cablecasters in the traditional sense (broadcast and cable)

3. A revised basic draft basic proposal will be prepared for the meeting and all efforts will be made to make it available to the Member States by August 1 2006. It will be made on the basis of SCCR/14/2 and SCCR/14/3 and now-existing proposals and taking account the discussions of this committee.

4. There will be a recommendation to the GA to convene a DC at a suitable time in 2007.

B. A proposal on protection of webcasting and simulcasting.
1. The deadline for the proposals foreseen at 14th session of SCCR concerning these webcasting and simulcasting, will be Aug. 1 2006.

2. The revised document on protection of webcasting and simulcasting will be prepared on basis of SCCR/14/2, and the proposals, and taking into account discussions of the committee

3. A consultation will be taken on the matter of a meeting of an SCCR to be convened after the General Assembly.

In response to this proposed work program, the United States noted their concern about the "missed opportunity" undertaken to create now under the proposal to separate consideration of webcasting from the broadcasting/cablecasting instrument.

The United States suggested that if the General Assembly did not make a recommendation on convening a Diplomatic Conference, the webcasting could be considered along with traditional broadcasting in following sessions of the Standing Committee on Copyright and Related Rights.

Although it appears that simulcasting and webcasting will not be included in the proposed instrument on broadcasting and cablecasting, we should not rule out their re-appearance in subsequent meetings of the WIPO Standing Committee on Copyright and Related Rights.

[Inputs from: Jason Pielemeier-Yale Information Society Project, Gwen Hinze -Electronic Frontier Foundation, and Rufus Pollock- Open Knowledge Foundation]