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.