Object of Protection: how to protect the signal only?
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EU: Thank you, Chairman. Not like to repeat ourselves, we as mentioned before, we have a preference for the formulation, works or other subject matter, or otherwise a formulation that would state that protection granted under this treaty will not affect the protection of copyright or related rights in materials or program incorporated in broadcast. We would like to use in any case such formulations that are clear and known, rather than for example talk about underlying content which may raise some questions as to what this exactly means. We would like to avoid having other definitions explaining, for example, the meaning of underlying content. We would rather rely on clear terms here. Thank you.
>> CHAIR: Thank you very much for that view. I want to say that it was a contribution, but with the same goal. So it was good to recognize that this phrase was used in previous international agreements as well. And we can keep on receiving views of that. We take note of the suggestions. We will try to reflect them in the revised version. Any other views regarding this first paragraph? If not — U.S. has the floor.
>> UNITED STATES OF AMERICA: Thank you, Mr. Chairman. We have been listening carefully, and we have heard the interest in certainty. To our delegation, the phrase, other protected subject matter, even though we have now been duly informed what it relates to, still raises a little uncertainty. But I would at least like to share with the delegations a possible reformulation, and we are still consulting internally in it, on it. But for the interest of stimulating the discussion and the interest of possible greater precision, let me try this.Instead of the phrase, but not to works or other protected subject matter, it would be, we could even say without prejudice to the protection of copyright in literary and artistic works, including any copyright in a protected program or part thereof, and any interests protected under related rights or neighboring rights carried by the broadcast signal, brackets, prebroadcast signal.Let me try that again, reading the whole sentence, to make sure that the context is right. So, as it’s currently formulated, your proposal is the protection granted under this treaty extends only to, and we are suggesting the broadcast signal, brackets, prebroadcast signal, transmitted by, comma, or on behalf of the broadcasting organization, and then we could say, without prejudice to the protection of copyright in literary and artistic works including any copyright in a protected program, comma, or part thereof, comma, and any interests protected under related rights.At least, that’s the formulation. Or you could even say, instead of without prejudice, not, if you wanted to stay closer to your formulation. Thank you, Mr. Chairman
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>> NIGERIA: Thank you, Mr. Chairman. We would like to thank the U.S. delegation for the proposal they have just put forward. But we think that at this point, perhaps a simplification would be better than the proposal that the U.S. has put, has provided. And it still speaks to the same concern about keeping it for signal and consider what other protected subject matter could be. We have recognized it’s copyright, it could be related rights, even trademarks.
So is simplification would be preferable for this delegation. Thank you. I will think of language, my delegation will think of language that we could propose as well. Thank you.
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>> INDIA: Thank you, Chair. It is keeping with the simplification in mind, earlier I mentioned the underlying content which will include any type of Intellectual Property inside that, as well as materials in public domain, which may be out of copyright, and that also to be kept out.
So it was in that context when I said underlying content, and it is in tune with the earlier discussion we had on container and the content, and the signal being the, you know, container, and content is what is being carried on. So there is one attempt of doing that, other earlier alternate proposals program and content. Obviously signal is the technical process, whereas what it conveys is definitely some form of content. That content could be copyrighted. That content could be free outside copyright in public domain, because the crucial question is about, if you are protecting signal by a broadcaster, and if they use some public domain material, still are we keeping away from the signal or if anybody transmits that, will that be again a problem in terms of signal protection.
So we are quite open to discuss further on this.
>> CHAIR: Thank you very much for your opinion. You were referring to a topic that we are going to deal with later, which is in the last part, which is exceptions and limitations, where every, any time we undertake an effort to set or recognize a set of rights, immediately with the balanced approach of the copyright system which is always there, we have to find the ways to enact exceptions and limitations in order to serve some public goals or public interests as you have mentioned.
But that will come later, because we have other charge regarding that extreme. Going back to the definition to the object of protection which we are discussing, we are trying to find a way if, the best way to clarify that this is not, this is not a treaty which will deal with the content. We have the copyright treaties for that. And that has to be absolutely clear in order to avoid any confusion, that that will cause an interrelationship with other copyright treaties or related right treaties. And in that sense, we have to be remind that in order to clarify it as much as possible, and one way is through this last part of the paragraph 1, when we say that extends only to broadcasts or is bracketed to prebroadcasts as well we have decided, but not to, and we will decide to if not to the underlying content, nor to the works of other protected subject matter carried on them, or as the Distinguished Delegate from U.S. suggested, with a clarification of the copyright, the program or the protection without prejudice of the protection of copyright and so on.
I think that it deserves, after this first exchange, we will deserve to think about it more carefully. But at this point, I think that the way it is there is a very simple way. We have an alternative and we will think about that to try to find the best solution. But the good thing is that at least we are clear in that the object of protection is not the content, is not the program, is not the copyrighted work. So then we will have just the task to find the best way to express that. Going back to the text that you have on screen, we were thinking to go to the second paragraph. But first I offered the floor to NGOs to give us some clues or some additional arguments regarding this point.
> KEI: I think the comment by India about the public domain is quite important. In many respects, a lot of the issues people have about the object of protection will depend upon some other parts of the treaty. If what you are creating is some kind of temporary right that doesn’t include post-fixation rights, and it’s not like a 20 year or 50 year right like published in some drafts or perpetual in other ways presented, but some kind of temporary thing to protect privacy of live broadcast and things like that, then these issues on public domain and other exceptions and things like that become less important. But to the extent that there are these sort of durable rights created, then what we don’t want to see is creating a layer of rights that make private things that are in the public domain, and we don’t also want to take a situation where people freely license their works under creative commons type licenses, and then the broadcaster then gets to sort of turn it into their private property. And then of course, you have these cases that people have talked about before, like in the United States where you have the performance not even being paid for some of the works that are broadcast, and then that would allow the broadcaster to commercialize it. So to the extent that the object of protection, I think you do have to address this issue or you try to protect works that are in the public domain, or are licensed on these sort of creative comments type licenses.
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and I guess the issue of limitations and exceptions, I take from your comments those will be discussed later but not now, is that correct?
>> CHAIR: Yes, it is correct. Thank you for understanding. I think that we can get deep into that discussion in the moment of exceptions and limitations, which is a very important part of any proposed international instrument here. I’m sure we will receive very good suggestions from your side.