Notes from conclusion of WIPO SCCR

Here below is an unofficial account (joint notes of EFF/CPTech) of the afternoon session of day 3 of the 15th SCCR where Chairman Jukka Liedes ran roughshod over the concerns of many Member States including the India, Iran, the United States of America, Bolivia, and Brazil by formulating the condition for approval of his recommendations through the strange procedure of "silent approval". The SCCR recommended convening a Diplomatic Conference from 11 July to 1 August 2007 with a "special meeting" slated for January 2007 intended to engender consensus on substantive issues. These recommendations are subject to approval by the WIPO General Assembly, the highest decision making body of WIPO.

Thiru Balasubramaniam

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Blogging WIPO: Standing Committee on Copyright and Related Rights, Session 15 on proposed Broadcasting Treaty

Day 3

13 September 2006

Afternoon Session

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Notes taken by:

Gwen Hinze, gwen at eff dot org, Electronic Frontier Foundation [GH]

Thiru Balasubramaniam, thiru at cptech dot org, Consumer Project on Technology [TB]

[NOTE: This is not an official transcript. It's our best effort at providing a faithful set of notes of the proceedings. Any errors and omissions are unintentional and regretted.]

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3:30 pm

Chair: It seems that the consultations over the last few days have led to agreement amongst many delegations that they would be prepared to accept recommending to the General Assembly to convene a Diplomatic Conference. We have also heard that many delegations could accept the current draft on table as the basic proposal.

Then there is the question about whether we can agree drafting instructions precise enough that would allow us to move forward and take the next step.

It sounds like many delegations would consider that these items are inter-linked. That advice has now repeatedly received. It is not useful to have point by point discussion. It is very difficult to explain all links as there are too many such things.

I suggest we continue the series of interventions that started this morning.

Is inclusiveness the prevailing principle or should we have further drafting and under what sort of conditions. Now as you take the floor and make intervention, bear in mind the outstanding matters.

Uruguay:

We would like to make a general comment. We want the Committee to think about the end user of the broadcast and human rights.

We've already made a general statement on this. We would like the minutes to reflect the connection between human rights and IP. and ensure that treaty not violates human rights including the rights of the child and the rights of women.

The over-riding principle is the right of the child and this includes access to education and information

Pakistan:


We need to remove all references to webcsting and internet retransmission issues as they are contentious. Would the preparatory committee that is described in your draft document be used to consider discussions on this?

Chair:

This may be best answered by the experts of the institution. But the committee may be used for specific technical matters, but as delegates come to that meeting, they could attend another meeting on substance at same time.

Pakistan:

Then you should include a sentence that the discussions on the text will take place in these ensuing meetings.

Chair: Thank you for suggesting that when delegations come to Geneva they could continue informal discussions on substance.


Norway:

As stated before, Norway is in favor of moving towards holding a Diplomatic Conference in 2007 and to moving to update broadcast rights in line with other related rights. We have been have in negotiations for 8 years. We believe that current draft SCCR 15/2 can form the basis of discussions for a Diplomatic Conference.

Russian Federation:

I wanted to reiterate opinion of our delegation, endorsed by many colleagues this morning. Document 15/2 is excellent basis for holding a Diplomatic Conference. Of course there are some problems but they can be worked by experts, real experts, who will be there at the Diplomatic Conference. In accordance with instructions we have received, we want to state that this draft is consistent with us moving towards a Diplomatic Conference.

South Africa:

We would like to see a non-exhaustive list of limitations and exceptions On TPMS would like to make clear that this protection should be limited to signal protection.


Mexico:

I wish to express support for the draft you have given us. Certain favorable factors for moving forward with one caveat, that there remain certain issues that are outstanding.


Chair: In addition to previous speakers, there are a number of delegations who have indicated that discussions could proceed on the basis of current draft.

Egypt:

We see a term of protection for 20 years in the current draft The African Group came up with the proposal for a "minimum term of protection" for 20 years.

We feel that the term of protection should not go below 20 years.

Chair: I could add that to my draft here. The English version says "at least" 20 years, but could be stressed further.

India:

On specific question, whether we should proceed on 15/2 or document that you distributed this morning, if the suggestion is that we do not take the time to give specific instructions on drafting and proceed with current text, we want to reiterate our position that the current text is riddled with inherent contradictions and inconsistencies. We do not accept that current document could form the basis of discussions for a decision to convene a Diplomatic Conference.


Iran:

We need some clarification regarding the basic proposal.

At our last meeting, it was agreed that document referred to (SCCR 12) would be excluded from consideration. Also the title is unclear. There was clear consensus to exclude SCCR12/5.

Chair: Thank you, you made some good points. We will complement the list by getting instructions but have received clear instructions that don't go that way because would be like doing DC itself, many linkages.

[TB: What does this mean exactly?]

On second point, we have only one draft document SCCR/15/2.

I did not take notes, what were you other technical question please?

Iran: I do not know what you mean.

Chair: I think you had 4 points, but I think I responded to your two most pertinent points.

Switzerland:

We support Norway's statements. The time is ripe for a Diplomatic Conference, we should not let it become rotten.

We have a concern that the document too broad, but we would support your suggestion to remove "revised draft" and change date.

Benin:

Thank you for all your work, and doing best to reaching consensus on holding a Diplomatic Conference in 2007. As for the draft conclusions, looking at the provisions on limitations and exceptions, we see a reference to the list approach. This is an approach we could support but on the understanding that it is a non-exhaustive list.

Is it possible to resolve all the outstanding issues before embarking on a Diplomatic Conference.

Chair: There are items to add to the understanding.

Turkey:

We support convening of DC. Do instructions mean that delegations are not free to raise other questions not listed here? Would the Prep Conf. be taking up with procedure logistics, what questions go first?


Chair:

Prep con is very specific meeting with very specific tasks, such as procedural rules for the Diplomatic Conference and drawing up list of governments and NGOs, it does not usually deal with matters of substance, which are usually left up to member states, to organize their own proceedings.

On your first question, we are totally in free space, either now or in Diplomatic Conference, any Member State can raise any issue, even with draft basic text in front of you.


Brazil:

We have a lot of flexibility in this meeting.

In sense that 15/2 has lot of alternatives that were supported by many delegations in this room and to the extent that made clear that webcasting and simultacting as such were taken out of this document, and noting Indian's comments about inconsistencies within the document, we could agree that this document could be basis of convening a Diplomatic Conference.

If we depart from this approach such as what you proposed last night (guidelines) we could eventually consider this as well, in this case we would have a procedural difficulty as we could not take a decision till we can consider in a formal session of the SCCR the basic text.

Chair: If we should use that document, we should complete the guidelines text but we rejected that because you yourself mentioned that you were not opposed to Member States giving feedback and further instruction. That procedure would undermine the objective we are trying to work toward here.

Morocco:

We consider the convening of a Diplomatic Conference in 2007 of the highest importance. It is becoming apparent that there a deep differences between us. I believe that many delegations need to review those concerns within a new basic proposal in order that they can feel they can support the convening of a Diplomatic Conference.

I wonder if we could recommend to the General Assembly the convening of a Diplomatic Conference on the condition that consensus be reached on a new basic proposal in an SCCR that could meet perhaps in January 2007. I believe we could achieve consensus in January 2007.

Chair:

Now we have revived this two step process for your consideration and to look at ways to make it better. We have these two ways and no way is easy.


European Communities and its Member States plus Bulgaria and Romania:

We have been involved in deliberations to determine the likely contours of an agreement.

The elements of a basic proposal are contained in document 15/2 and the guidelines you have circulated. All of these are elements in a wider puzzle that we should reconfigure in a careful manner to reach an agreement.

We believe that the basic text (doc 15/2) contains all the elements we have necessary for a Diplomatic Conference. We are open to clarify if necessary on how to configure Draft Basic Proposal into a basic text.

Our main message is that we see the contours of how these elements can be reconfigured to reach an agreement. It requires a lot of expertise and goodwill.


Pakistan:

We support holding the of a Diplomatic Conference, but I cannot find a deadline for holding a Diplomatic Conference in 2007. Is there a deadline for holding a Diplomatic Conference in 2007?

Chair: May, June, or July? July would allow prep com to be held in May. A May date would allow for a December prep con.


Agreement not on substance, but on procedure.

[TB: Chair is NOT answering the question "Is there a deadline holding a Dip Con in 2007."]

United States of America:

We have not intervened except on one occasion.

Much like the EC we have engaged in listening and discussing with other delegations to test the consensus and agreement about the current status of draft basic proposal SCCR15/2. One of the main reasons we reluctantly agreed at last meetings, somewhat contrary to principles of inclusiveness, exclusion of our webcasting protection, was to see what type of consensus
we had with respect to broadcasting and cablecasting protection.

In our assessment, by itself, the Draft Basic Proposal not a sufficient basis to proceed to a Diplomatic Conference, we require more certainly. We presume this is the same for other delegations. The principle of inclusiveness has benefits and costs, and for the US the document has these. Principle among these are the provisions contained in articles 2,3 and 4 which reach beyond the protection of broadcasting, causing us much uncertainty going forward. Similarly we have concerns about the provision on TPMs. As we noted earlier this week, there is no equivalent provision to the WPPT language in the draft text, and this increases uncertainty and risk from our point of view. We note that our proposal not included in drafting instructions.

We remain open to alleviate the uncertainty caused.

We do think that more work needs to be done on SCCR 15/2 and we remain open to ideas on how to proceed forward in a timely manner.

Australia:

Our inclination is to join with sentiments expressed by Norway and Switzerland, insofar as they suggested that SCCR15/2 could be basis for going forward with a Diplomatic Conference. This is not to be taken as acceptance of everything in that document, and not implying that those delegations implied that. One previous delegation implied that the text contained a number of inconsistencies. That is inevitable. We some have trouble accepting some of alternatives in provision that previous delegation has just mentioned. We think we could go forward nevertheless because you can only allow fruit to ripen so far before it goes rotten. We are not opposed to a two track process.

[TB: Indonesian Ambassador and Romanian Ambassador are present in the room]


Chair:

I will say something after Bolivia, I will offer my thoughts.

Bolivia:

During the meetings, my delegation has noted that while 15/2 is a good and inclusive documents it contains a number of divergent views and thus it would be premature to convene a Diplomatic Conference. More particularly in my country's view, we are concerned about the lack of safeguards covering the public interest, a priority for my country, as expressed earlier by Uruguay. We believe these safeguard should considered in the body of treaty not in the preamble.

For this reasons, we consider it premature to convene a Diplomatic Conference. We should continue our work in future SCCR's to bring diverging views together and in following year perhaps able to hold Diplomatic Conference.

Chair:

We have been working on this for 8 years. High level of feeling that we should not conclude the project, make it a success, not a failure. There is flexibility. Of course there is convergence. Politically and technically would be simplest to just say that draft text on table be converted and become the Basic Proposal. There are concerns and opinion that something should be done. How? We have tried the instruction method. It is clear that instructions method works against itself, because in time available, we cannot reflect willingness and flexibility and connections between items. This has added to concerns of some.

There is a reference to have another meeting to revisit substantive but of course under the provision that we already make a recommendation to convene a Diplomatic Conference.

One possibility would be that after this meeting on the basis of all that we know and all that has been recorded and said, revision would be made in the document and this would be presented in the Prep Conf.

Or we have possibility that we go forward on what we have. We would convert the Draft Basic Proposal to the Basic Proposal and agree that would meet before the Prep Con to try to further agreement. To this we could add the condition that this would not be taken to be the Basic Proposal without trying to do something to it.

Now i would say convert to the document to a Basic Proposal and hold another meeting and from that meeting one or more element could emerge - that would form basis for Working Paper. At least two possibilities, make it de facto by creating a working paper that we know very well or develop alternative proposals. I see the former as the only way forward.


I will not be able to produce this in writing as we do not have enough time available.

We cannot open a substantive debate on this. We will break for 5 minutes to consult with the Secretariat.

---5:08


Chair:


I would like to propose the following:

1. A diplomatic conference on the protection of broadcasting organizations be convened from July 11 - August 1, 2007 in Geneva. The objective of this diplomatic conference is to negotiate and conclude a WIPO treaty on the protection of broadcasting organizations, including cablecasting organizations. The scope of the treaty will be confined on the protection of broadcasting and cablecasting organizations in the traditional sense
2. The draft basic proposal SCCR15/2 will be the Basic Proposal and form the basis of the discussions with the understanding that all delegations can submit proposals at the Diplomatic Conference.
3. The meeting of a preparatory committee will be convened for January 2007 to prepare the necessary modalities of the diplomatic conference. The preparatory committee considers the draft rules of procedure to be presented for adoption to the diplomatic conference, the lists of states, as well as intergovernmental and non-governmental organizations to be invited to participate in the conference, as well as other necessary organizational matters.
4. A special meeting of two days to clarify outstanding matters will be convened in conjunction with the preparatory committee aided by a non-paper to be prepared by December 15, 2006 prepared by CHAIR.
   

I submit for approval.

India:

We want to know status of "non-paper", basis of preparation of paper and in the two days, . In the last meeting we had discussed consideration of draft article by article. This meeting proceeded differently than what we had expected. Once I have clarification on this point, and how consideration of paper will be done, we would be provide comments to Secretariat.

Chair: The meeting is called a special meeting which would look at substantive issues and have objective to forge common grounds that consensus or near consensus positions could emerge, This would allow new proposals to emerge if sponsored or agreed by several delegation. This would de facto lead to solutions that would be a basis for solutions for the Diplomatic Conference. It would what we have omitted from this meeting - article by Article consideration. The character of the non-paper would be nothing before the delegates consider it, or that a proposal emerging from it could be put to delegations

India:

I have some more supplementaries. You have used the term "substantive issues" when referring to "non-paper".

All the issues in your drafting paper are substantive issues. How are we to separate and identify what are the substantive papers on which a non paper is to be prepared. We would strongly request that they be identified now. If not, it would just be yet another paper that is likely to lead to confusion. If we have an agreement on substantive non-paper issues and Chair kindly agrees to draft we could have way to move forward. Otherwise, it could just be another draft, two documents, and this would not move things forward.

Chair: Thank you. I have another suggestion. What if list of headings could be the same as the draft list in italics. That would make it possible to identify articles relevant and the fact that you could find in the reports of meetings the expression of different views.

We could not expect that the meeting would be more than a prelude to a Diplomatic Conference, a midway.

India:

My humble submission is that it covers the whole treaty, not specific substantive issues. Therefore I would reiterate our delegation's position, that we either disregard 15/2 and prepare a new paper that removes inconsistencies and they have that paper considered by new meeting. If you have been saying that 15/2 is Draft Basic Proposal then preparing of a new set of substantive issue in a non-paper will further complicated this process. We reiterate our delegation's proposal that we have a Draft Basic Proposal first. If majority of delegations here have said that this is the case, then we don't see need for further papers to iron out substantive issues. As you have said, we can work these issues out at Dip con. superimposing a new doc would undermine the value of a Draft Basic Proposal.

Chair:

If you would allow non-paper to prevail then there would always be a prevailing document, the Draft Basic Proposal for DC. To try to do something with elements here better to do it in non-paper so can discard it if nothing useful emerges, but if something useful emerges, then very useful b/c based on discussions with delegations for DC.

The non-paper would disappear and the basic proposal would stand if its elements would not be eliminated.

India:

Will not clarify b/c may be perceived to be monopolizing floor but reserve right to speak to later.

Brazil:

I had no problem with monopolizing time as some of the discussions were interesting. Your last two suggestions were confusing to our delegation.

Non-papers may be produced but they will have no formal relevance in the process and I will tell my authorities that 15/2 will be the basic proposal. I cannot tell my authorities in my Capital that the basis for the Dip Con will be a non-paper that we really know nothing about.

As you know this is a very legalistic organization. Superimposing an additional paper provides us with less certainty.

If your drafting document reflect your views as to what a non-paper may be acceptable then I have to register my concerns.

Scope: It is still not clear that the protection for signals is about protection about signal theft rather than conferring exclusive rights.

Then there is the whole issue of grouping of rights in an operative provision not a preambular provision. I find 15/2 positive because it includes our proposal but your drafting instructions knock them off the table and are not acceptable to our delegation. We did not submit a proposal for preambular purpose but to be included in the operative text.

With reference to the EC statement about linkages - we need to understand how this will fit with rest of the document.

There is no definition of beneficiaries.

Right and protection - The scope of protection should clearly exclude webcasting and simulcasting rights and coverage of non-copyrighted and public domain works.

Post-fixation rights-there has been a lot of agreement that these provisions should be dropped in our bilaterals discussions here.

TPMs are critical for our delegation - not including is the issue. not needed for for protecting signals. It is necessary to protect content, but copyright is already protected under national law.

National treatment - we do not accept reciprocity as basis, only national treatment.

Eligibility - not accurate descriptions. Would like my comments to be reflected in minutes for your consideration and inclusion in a non paper that you may want to prepare for consideration outside our formal negotiation activities.

Chair:

As you said, there is no need to prepare non-paper if decide on 15/2 as Draft Basic Proposal. And no consensus on need for special meeting, so should delete rest of sentence there.

Iran:

This way of proceeding is confusing and questionable for us. In the 14th session we agreed that the Draft Basic Proposal would be the subject of discussion at this session.

This way of proceeding is confusing for us. At end of SCCR 14 we would use 15/2 as basis for future discussion. You indicated that there would be discussion on whether to hold a Diplomatic Conference this has been rejected by a number of delegations and now you have suggested a non-paper.

Chair: [Interrupting]

The idea of a non-paper has been dropped, because it is not acceptable to one delegation. At least one delegation has said that this document could not become a basis for Diplomatic Conference. Are there any other delegations in this position?

El Salvador:

The technical issues could be resolved at the Diplomatic Conference but we have doubts as to your proposal that we should hold a two day meeting. My authorities have asked me to request a clarification because we would then like to know under what authority would a Diplomatic Conference be convened? Would it be convened at the two day meeting or at some future meeting?

These clarifications were requested by my capital.

Chair:

Point two reads: The Revised Draft Basic Proposal shall constitute the working basis "with the understanding that all delegations may make proposals at the Diplomatic Conference"

India: Thank you. Want to draw your attention to para 4 on page 1.

Chair: That para is gone. I read only 4 paras - all is else is gone.

India: notes in 4th para that there was "broad consensus ". The SCCR stated that there was sufficient common ground on substantive questions etc. The fact that we are planning to meet for two days to resolve substantive issues indicates that there was no substantive agreement on these points so any language that does later get adopted should reflect that.

Chair:

Agreed. We would not include this and we would have this recording. I have asked you not to insist on taking the floor, so that we can proceed to finalize and agree that we will have only those 4 papers. That meeting will agree how to finalize their work and whether that is by non-papers or something else. I know that two delegation s are asking for the floor, but is it a point of order?

Argentina:

We are seeking to work in as flexible way as possible, but would urge you, that in same way that you did in the previous paper, we would urge to have draft decision in front of us. This is important. The language and how we are fulfilling them, are we really fulfilling the mandate of the General Assembly. We were not been asked to fix a date for the Diplomatic Conference, you will recollect it was a negotiated outcome and a careful prepared resolution, We would not want our conclusion to conflict with anything agreed by the General Assembly. We request that you distribute this to us in writing, in order to make a n informed decisions.

Chair: For technical reasons it is not possible to provide you this. Please indicate your support through "silent approval".

India: Please clarify for us what you mean by "silent approval".

[TB: Chair smiles and wags his head in a goofy manner]

Chair: The recommendations have been so decided.