At the end of the session, very little progress seems to have been made towards a WIPO Broadcast treaty that anyone can agree upon. This might see to be a cause for celebration, since it puts the brakes on the creation of an international instrument that is likely to erode the rights of both users and copyright owners.
However, there may be reason for caution, since it's not clear how this lack of progress will play out as the deadline for a workable draft treaty approaches. This is because the General Assembly of WIPO has given the SCCR only one more meeting to get a treaty right before the potential Diplomatic Conference in November/December this year.
I hope to post a summary and commentary on the events of the past week a little bit later; for now, here's the summary of events of day 3.
The third and final day of this session began in “informal” session, meaning that NGOs like us weren't allowed in. Apparently, very little progress was made in this session, just as little had been made in closed session the night before. When we were allowed back in after noon, a document was circulated by the chair: a draft of conclusions reached by the SCCR in this first session of the year.
In short, the first draft of these conclusions mentioned the mandate from the GA, saying that the sessions this year
…should aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal…
The draft conclusions also said that the Committee “made considerable progress in its work and decided” that the revised version of the draft basic proposal. The draft committee also said that the Chair would prepare a revised version of 15/2 (the current, unweildily long draft treaty), between now and the second special session in June, taking into account the following:
- language/provisions on objectives added
- further refinement of provisions in relation to other treaties
- clarification of signal protection in definitions
- further clarification that the beneficiaries are limited to traditional broadcasters and cablecasters
- provisions on rights and protections
- provisions on limitations and exceptions
- provision on term of protection
- provisions on technological protection measures and rights management information
After this section, the draft conclusions scheduled the next meeting of the SCCR for June 18-22, 2007. The aim of that second meeting, the conclusions said, would be to finalize the work and agree on the amendments of the relevant parts of SCCR 15/2. Finally, the draft conclusions said that this second special session would recommend to the Director General of WIPO the convening of a diplomatic conference.
These proposed conclusions met with several objections from a variety of delegations.
Colombia first noted that contradictory language in 15/2 would complicate the Chair's creation of a revised version of the treaty. For instance, among the list of issues to be discussed in the new version are TPMs. But since there hasn't been any consensus on the issue–and, in fact, since the different alternatives included in 15/2 simultaneously require and prohibit TPMs–how would this be addressed?
Liedes responded that 15/2 was a document of inclusiveness, and that his condensation of it would also try to include alternatives, but just fewer of them, reflecting major views, and that his document would also address only some of the issues in the treaty, not all of the various articles.
South Africa also noted that there wasn't enough consensus for a lot of things, including the definition of signal protection. They indicated that they still had a different understanding of what a broadcast was than many other delegations.
Brazil stated that they wanted to have a blanket reservation on all of the positions taken in the various non-papers, so that the non-papers wouldn't purport to show consensus or the agreement of all the delegates.
Brazil also offered several amendments to the Chair's draft conclusions. They recommended not talking about “revising 15/2,” since there was a lot of 15/2 that had never been discussed in this session. The only parts that could be revised were that parts that had been discussed in the Chair's non-papers, so the conclusions should instead talk about revising those. The list of issues to be discussed, Brazil said, should also be dropped, since providing it suggests that there was some consensus on these issues, when, in reality, on some issues the sides grew further apart from each other. Brazil also had very real problems with references to convening a diplomatic conference, since the General Assembly had indicated that there would only be one if parties came to agreements on the treaty. To have the second session of the SCCR recommend a diplomatic conference without consensus would be “rewriting” the GA's mandate. Finally, Brazil noted that member states should be involved in the process of drafting the revised version of the non-papers.
The European Community wanted to change the paper so that it referred not to “broadcasters” and “cablecasters,” but “broadcasting organizations” and “cablecasting organizations.” This change would avoid confusion due to terms being used inconsistently between documents. The EC, like Brazil, noted the discrepancy between the General Assembly's mandate and the draft conclusion's decision that the second session recommend a diplomatic conference. The EC also placed a reservation on the non-papers.
India also asked about the list of items, saying that it seemed obvious that these issues would have to be addressed–they were the same issues discussed at every SCCR meeting on a broadcast treaty. So why was it necessary to list them here, and risk suggesting that there was agreement on issues where there was not any? India also commented that too many of the discussions were informal, off-the-record; that the discussions were centered on non-papers, and so that there was little record of the session from which to build additional work. (The US also noted this point later in the day.) The mandate from the General Assembly, India said, was to reach agreement on three items: the objectives of the treaty; the scope of the treaty; and the objects of protection. Reiterating eight items that do need to be discussed as part of that doesn't get us anywhere.
The session then broke for lunch, during which the various delegations met in their larger groups to discuss the draft conclusions.
After the lunch break, the Chair reported that he would tentatively remove from the end of the draft conclusions references to convening a diplomatic conference, and that he would be taking more comments from delegations on the draft.
Bangladesh, speaking on behalf of the Asian group, wanted to delete the reference to the eight items to be reflected in the new version; they also supported removing the references to a diplomatic conference. They also objected to saying that the SCCR had made “considerable” progress, and agreed with Brazil that there should be member state participation in the revision process that was to occur between now and June.
Italy, speaking for Group B, had three main amendments. First, they wanted to expand the quote that cited the General Assembly mandate, so that it included the reference to the fact that a diplomatic conference would be convened only if there were agreement. Second, Italy supported deleting “considerable” in describing how much progress had been made over the past three days. Third, they supported changing all references to “drafting a revised version of 15/2” to “drafting a new version of the document”
Algeria, speaking for the African Group, also recommended changing the statement on how much progress had been made, suggesting the removal of the word “considerable.” Algeria also supported member stated being involved in the revision process. They recommended changing the statement from “the Committee requested the Chair to prepare a revised version…” to “the Committee requested the Chair, in coordination with Member States, to prepare a revised version…” Algeria elaborated on this idea, saying that member states could contribute to the drafting process from their home capitals by providing input via written statements or email.
El Salvador objected to the use of “considerable progress,” and said that it was neither considerable, nor perhaps even progress. While the Salvadoran delegation was pleased with the discussions that had taken place, they would have preferred more discussion in formal session based on the text of the existing 15/2 draft, so that the delegations could better work with the research and expertise their experts had provided based on that existing material.
Colombia repeated the EC's point that the conclusions should refer to “broadcasting organizations,” and that “cablecasting organizations” should also be included.
Brazil supported expanding the reference to the General Assembly mandate, and also that member states should participate in the revision process. It suggested an open-ended working group, with member states meeting between the sessions. Regarding which document to work from, Brazil wanted to leave 15/2 on the table, to form the basis for further looks at it, but didn't want the chair to be revising 15/2 between sessions. So it recommended that the chair work from the non-papers to create a tool for later revising 15/2, while not generating a revised 15/2 himself.
Liedes took pretty much all of the recommendations, deleting references to a diplomatic conference; expanding the quote from the General Assembly mandate; deleting the list of eight points; and deleting the word “considerable” in describing the progress made.
He then listed the various options that member states had made regarding the revised documents to be created in the intersessional period.
First, there was the idea that the Chair could prepare a revised version of 15/2.
Then there was the suggestion of creating a drafting committee of certain member states that would work with the Chair to create a revised version.
Then there was the option that the chair would prepare a draft document, then solicit comment from member states.
Liedes also noted that it need not be stated that 15/2 was still on the table, since the mandate from the General Assembly assured that this would happen.
Following this, discussion centered on the pros and cons of each proposal. The drafting committee idea was eventually rejected, with some member states, including the US, claiming that such a meeting was not within the mandate the General Assembly had given, since only 2 special sessions were called for. Proponents of a committee said that this would allow for more face-to-face discussion than submitting comments from around the world, which could lead to a multiplication of differing issues and statements. Proponents of a comment-submission type of involvement said that this would facilitate experts in national capitals adding to the discussion. In the end, the Deputy Director-General noted that WIPO would not have the resources to host a drafting committee, and the groups that originally presented the idea then withdrew the proposal.
There was also discussion on whether the draft document should be a 15/2-based paper or based on the non-papers. Algeria, though generally in favor of working from 15/2 (they commented earlier that the SCCR would not be in its current situation if it had followed the African group's proposal to begin the session by looking at 15/2), they agreed that using a smaller document increased the chances of reaching consensus.
The various delegations also had to decide whether the document produced in this intervening period would be called non-papers or working papers. While the Chair described the choice of wording as a “matter of taste,” others felt that it was significant. Bangladesh originally said that it should be called a working paper, since that was what it was–a document that the SCCR would try to craft a compromise out of. India, for instance, said that calling it a “working paper” suggested that it was the result of consensus reached by the SCCR, which it was not. It recommended calling the result a non-paper,” since, like earlier non-papers, it was simply to be a discussion tool, and not representative of common opinion.
In the end, the SCCR reached agreement on a proposal for a draft document that looked something like this:
The Committee requested that the Chair prepare a new non-paper. To facilitate the process, the Chair will, through the email address [*@wipo.int] invite the coordinators of the regional groups and the member states, as well as the coordinator of the EC to submit their comments for developing the non-paper. The focus of the non-paper will be the provisions that will be relevant in light of the objectives, specific scope and the objects of protection of the treaty in preparation.
Liedes noted that there needed to be a timeline for the original draft, and that hopefully that would be produced by May 1, so that delegations could comment on it before the June 18 meeting.
That's the end of my summarized notes on the meeting. Over the course of this week, and likely others, I'm going to be providing more of a primer on the broadcast treaty and give my opinions and analysis of what has just happened. Hopefully, that will provide some context and explanation of my more recent posts.