Brazil XCasting Treaty Language Proposal

-------- Original Message --------
Subject: [A2k] PROPOSAL BY BRAZIL ON THE PROTECTION OF
BROADCASTING ORGANIZATIONS
Date: Thu, 17 Nov 2005 11:56:37 +0100
From: Thiru Balasubramaniam <[email protected]>
To: [email protected], [email protected]


On 17 November 2005, Brazil submited the following proposal to
the WIPO Standing Committee on Copyright and Related Rights to be
considered at the 13th Session of the SCCR (November 21-23,
2005).

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WIPO Standing Committee on Copyright and Related Rights (SCCR)

PROPOSAL BY BRAZIL ON THE PROTECTION OF BROADCASTING
ORGANIZATIONS

As a Member of the Rome Convention and the home country of
important broadcasting organizations, Brazil fully shares the
objective of preventing the serious problem of theft of signals
which are used to carry broadcast programs. Because signal theft
has entailed considerable economic losses for broadcasting
organizations, Brazil agrees that it would be appropriate to
update the rights conferred by the Rome Convention to take into
account the implications for signal theft of recent technological
developments.

Under any circumstances, a new international instrument in this
field must strike an appropriate balance between the protection
of the rights of broadcasting organizations and the public
interest, as well as the rights of other right-holders under the
copyright system. Signal theft should not be addressed at the
expense of the rights of other right-holders. Furthermore, it is
important to recall that broadcasting activities in many
countries are intended to have a clear “social dimension”, by
servicing the public interest in areas of direct relevance to
social, economic and cultural development, such as education, the
promotion of cultural diversity and others. In many countries, in
fact, broadcasting organizations are required to undertake this
“public-service” role in order to receive or renew their license
to operate. Any new instrument in this area should therefore seek
to preserve this social role of broadcasting organizations, for
the benefit of society at large in all countries.

In this regard, recent initiatives in different international
fora have enshrined commitments by the international community to
certain fundamental objectives, which are directly relevant to
the proposed new treaty and, in particular, to the preservation
of the social role of broadcasting organizations. The Declaration
of Principles and Plan of Action of the 1st Phase of the World
Summit on the Information Society (WSIS), for example, affirmed
the promotion of access to knowledge and information as key
objectives of the international community, with a view to
bridging the digital divide that continues to deprive most
developing and less-developed countries from taking full
advantage of the potential contribution of modern information and
communication technologies (ICTs) to development. Brazil is
concerned that certain provisions that have been proposed for the
new WIPO treaty on broadcasting, in addition to being of
questionable relevance to the protection of broadcast signals,
would seem to actually run counter to our internationally agreed
goals on the promotion of access to knowledge and information.

We also note that developments at the United Nations Educational,
Scientific and Cultural Organization (UNESCO) recently delivered
a groundbreaking “Convention on the Protection and Promotion of
the Diversity of Cultural Expressions”, which enshrined the
protection and promotion of cultural diversity as a widely shared
commitment of the international community. We note, in
particular, that Article 21 of this new Convention, the
negotiation of which was wholeheartedly supported by Brazil,
affirms that “Parties undertake to promote the objectives and
principles of this Convention in other international forums.”
Given the significant role that broadcasting organizations can
play in the dissemination of cultural content and expressions, it
is crucially important to ensure a relationship of mutual
supportiveness between the proposed new WIPO treaty on the
protection of broadcasting organizations and the new UNESCO
Convention on Cultural Diversity. One should also note that the
recent 33rd UNESCO General Conference adopted a Resolution,
whereby the membership of that Organization expressed its concern
with regard to the possible impact that the discussions on
broadcasting organizations at WIPO may have on UNESCO activities
and objectives, including in respect of access to knowledge and
information.

Finally, ensuring that an appropriate balance is struck in the
proposed new WIPO treaty between the public interest and any new
rights conferred to the beneficiaries of the new instrument, so
that the social role of broadcasting organizations is preserved,
would be fully in line with the recent calls to establish a
“Development Agenda” for WIPO, and to ensure that a “development
dimension” is mainstreamed into the international intellectual
property system in general.

Bearing in mind all of these considerations, and desiring
positively to contribute to advancing discussions on the
important issue of the protection of the rights of broadcasting
organizations in WIPO, Brazil would like to propose, for the
consideration of the Members of the SCCR, that any new instrument
on the protection of the rights of broadcasting organizations
include the provisions which follow. In some cases, only changes
to provisions already included in the Consolidated Text of the
Chairman (Second Revised Text, Document SCCR/12/2 Rev.2) are
proposed.

Brazil also reserves its right to propose additional changes to
other provisions that have been suggested by SCCR Members for the
possible new WIPO broadcasting Treaty.


I) GENERAL PUBLIC INTEREST CLAUSES: To underscore the importance
that we attach to the above-mentioned international commitments
to the promotion of access to knowledge, cultural diversity and
development, Brazil proposes that two new clauses on access to
knowledge and the protection of cultural diversity should be
included in any new treaty on the protection of the rights of
broadcasting organizations, which would read as follows:


Article [x]
General Principles
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.


Article [y]

The Protection and Promotion of Cultural Diversity

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.


II) LIMITATIONS AND EXCEPTIONS: In order to ensure that the
“social dimension” of broadcasting activities is fully preserved,
Brazil also proposes that Article 14 of the current Consolidated
Text of the Chairman should be redrafted so as to specify certain
“public good” exceptions which would be applicable to broadcasts
under the proposed new WIPO Treaty. In this regard, Brazil
proposes to draw on the content of Article 15 of the Rome
Convention itself, with appropriate adaptations to ensure that
contemporary issues are properly addressed:

Article 14
Limitations and Exceptions –

1. Contracting Parties may, in their national legislation,
provide for the same kinds of limitations and exceptions with
regard to the protection of broadcasting organizations as they
provide for, in their national legislation, in connection with
the protection of copyright in literary and artistic works, and
the protection of related rights.

2. Contracting Parties may, in their domestic laws and
regulations, provide, inter alia, the exceptions listed below to
the protection guaranteed by this Convention. It is presumed that
these uses constitute special cases that do not conflict with the
normal exploitation of the work and do not unreasonably prejudice
the legitimate interests of the right holder:

(a) Private use;
(b) The use of excerpts in connection with the reporting of
current events;
(c) Ephemeral fixation by a broadcasting organization by means of
its own facilities and for its own broadcasts;
(d) Use solely for the purposes of teaching or scientific
research;
(e) The use of works specifically to promote access by persons
with impaired sight or hearing, learning disabilities, or other
special needs;
(f) The use by libraries, archivists or educational institutions,
to make publicly accessible copies of works that are protected by
any exclusive rights of the broadcasting organization, for
purposes of preservation, education and/or research;
(g) Any use of any kind in any manner or form of any part of a
broadcast where the program, or any part of it, which is the
subject of the transmission is not protected by copyright or any
related right thereto.

3. Irrespective of Paragraph 2 above, Contracting Parties may
provide additional exceptions to the exclusive rights conferred
by this Treaty, provided that such exceptions do not unreasonably
conflict with a normal exploitation of the broadcast and do not
unreasonably prejudice the legitimate interests of the right
holder, taking account of the legitimate interests of third
parties.


III) TECHNOLOGICAL PROTECTION MEASURES: Brazil reiterates its
proposal to delete Article 16 (Obligations concerning
Technological Measures) of the current Consolidated Text of the
Chairman. There is increasing controversy over the role of
technological protection measures in both developed and
developing countries and their potential impact on access to
information and knowledge. Not only is it feared that
technological protection measures may undermine countries’ rights
to exercise the exceptions and limitations foreseen in their
national copyright laws, it is also believed that the use of
technological protection measures may unduly restrict access to
materials and content that already are in the public domain.
Furthermore, we note that the relevance of technological
protection measures to signal protection is questionable.

IV) ELIGIBILITY: Finally, Brazil would like to ensure that the
proposed new WIPO broadcasting treaty is fully compatible with
and is not used to supersede the Rome Convention. We therefore
propose to redraft Article 24 of the current Consolidated Text of
the Chairman in the following manner:

Article 24 – Eligibility for Becoming Party to the Treaty
Any Member State of WIPO may become party to this Treaty,
provided that such State is a party to the Rome Convention on the
Protection of Performers, Producers of Phonograms and
Broadcasting Organizations.


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