This is the text under discussion (sccr/32/3)
II. OBJECT OF PROTECTION
(1) The protection granted under this Treaty extends only to programme-carrying signals
[including pre-broadcast signals] transmitted by, or on behalf of, a broadcasting [or a
cablecasting] organization[, but not to programmes contained therein].
(2) The provisions of this Treaty shall not provide any protection in respect of mere
retransmissions.
(3) Alternative A
Notwithstanding paragraph (2) above, broadcasting [/cablecasting] organizations shall
also enjoy protection for simultaneous and near simultaneous transmissions by any
means [/over any medium].
(3) Alternative B
(i) Notwithstanding paragraph (2) above, broadcasting [/cablecasting] organizations shall
also enjoy protection for a simultaneous, near simultaneous [or deferred] transmission
by any means [/over any medium] [including for a transmission made in such a way that
members of the public may access it from a place and at the time individually chosen by
them].
[(ii) Contracting Parties may limit protection of deferred transmissions including for a
transmission made in such a way that members of the public may access it from a place
and at the time individually chosen by them.
(iii) Contracting Parties may limit protection accorded to broadcasting [/cablecasting]
organizations from another Contracting Party that chooses to apply subparagraph (ii), to
those rights that its own broadcasting [/cablecasting] organizations enjoy in that other
Contracting Party].
Here is the afternoon discussion on object of protection:
CHAIR: Good afternoon, welcome back. After this rich exchange of comments, preferences and suggestions, we can continue on this track in order to try to see where we can find common ground, and, of course, I take note of suggestions. I am in condition to offer for some of them, especially those that have been supported or insisted by other delegations expressing a common view for specific discussions, I will try to include them in an updated version of this document.
And since we are in a special moment of discussion, I wouldn’t make you wait for after some weeks or months and we try to do so in a more rapid way, but only in those elements which are clear enough to do so at this time. At this point I could say this includes the issue of cablecasting, and some small amendments, but important ones regarding the definition of programme caring signal and definition of programme as well probably the amendment regarding or an addition regarding the definition of broadcasting.
The same for the definition of broadcasting organisation and a small amendment in the definition of retransmission in both alternatives. I have taken note of those which I have received comments and suggestions that have been welcomed by some others. And with this part the Secretariat will try to give you a tool, an updated tool into that purpose.
Okay. We were receiving comments for the section of definitions at this point before going to the second section of object of protection, you are invited if there is still any delegation trying to make an additional suggestion for this set of definitions, and I would include NGOs if they have specific suggestions regarding the set of definitions, not general remarks, but specific as we have heard some of them already participating.
So we open the floor. Okay. Then leaving the chance to go back if necessary to any comment that might come up for this section, we go to the section object of protection, which is on page 4 of document SCCR/32/3, and we will receive comments on that section. Since I made a summary at the beginning of the session presenting the welcoming, I will not repeat that, so the floor is open. Swiss has the floor.
>> SWITZERLAND: Thank you very much, sir. Allow me to congratulate you and thank you for your work so far. I would like to make a comment on the definition in particular the definition of the signal prior to broadcast, the pre-broadcast signals. And here I would like to say that Switzerland would like to have some flexibility on this definition to allow national implementation. So one possibility will be simply to define broadcasting without a separate definition of the pre-broadcast signal.
In fact, we could just simply consider that broadcasting covers the whole process including the pre broadcast signal if it gnal if it is indeed separate. Our concern at having a separate definition for the pre-broadcast signal would be to create in this way rights on behalf of another entity who would be emitting that signal that would be different from the broadcasting organisations. In fact, the objective of this treaty is to provide protection to the broadcasting organisations, and our concern then would be that if we define pre-broadcast signals separately, one might establish in that way rights to those who are the owners of those signals.
For example, organizers of a sports event. This would be an example that one could use to illustrate our concern. So it’s not so much the fact of protecting or not that aspect of the signal, but simply not creating new rights that would favor others than the broadcasting organisations that are dealt with under this treaty. I hope I have been clear. Thank you.
>> CHAIR: Yes, you have been, Distinguished Delegate from Switzerland, and we have a specific suggestion regarding the definition of pre-broadcast signal, and the reason regarding behind that suggestion is it will be interesting to see the other views related to this specific suggestion. Any other comment? Since we don’t have the request for the floor, it’s time to listen to European Broadcasting Union.
>> EUROPEAN BROADCASTING UNION: Thank you, Chairman, just a small reaction to the proposal from the Swiss delegation. Of course, this issue is known, but I think maybe there is a solution to that if in the section on the rights when the alternatives talking about protection of the pre-broadcast signal, it is clarified that it’s the pre-broadcast signal transmitted to them. That may be a way out to clarify that only that signal which is transmitted to a broadcast organisation is protected on behalf of that receiving broadcast organisation. Thank you.
>> CHAIR: Well, thank you very much for that. I don’t know if it has been possible to listen specifically to that suggestion. In order to, in order to — since it’s an intent to tackle the concern expressed by the Distinguished Delegate from Switzerland, I would invite E.B.U. if they can precise their suggestion, please.
>> EUROPEAN BROADCASTING UNION: So the suggestion or idea was to say under section 3, the rights to be granted, where it goes into alternative A or alternative B for section 2 of that part, to clarify that the rights, that it is the right to prohibit authorized retransmission of the pre-broadcast signal transmitted to them, because it refers to broadcasting organisations. And the other alternative B, it could also be clarified that broadcasting organisations shall enjoy adequate and effective protection for the pre-broadcast signal transmitted to them.
>> CHAIR: Thank you very much forfor clarifying the suggestion. And, of course, it’s not only for the Swiss, the Distinguished Delegate from Switzerland but for consideration of other delegates here. Okay, so changes for that comment related to the section of definitions. And I think that we can enter into discussion of section of object of protection. And so I open the floor for comments related to the object of protection.
Well, as I said before, this section, object of protection that probably we can try to show it in the screen, please. It’s the core section of this treaty because in the first Paragraph it is stated that the protection extends to programme carrying signals, but it is important to remark that it is clarified that those programme carrying signals are protected if they are transmitted by a broadcasting organisation.
So I think that that’s very important to know just to be aware that when we discuss definitions, we are not talking about the object of protection yet. We use the definitions, but then some additional clarifications can be posted here. And that is the case in the Paragraph number 1 of the object of protection when it is said that that protection granted under this treaty extends only to programme carrying signals transmitted by or on behalf of broadcasting organisations.
And it’s, even if it’s in bracket, there is a suggestion to include but not to programs contained therein. This is important because, this is an important clarification related to we are talking about protection of signals not to the protection of content or copyrighted content. And another clarification which is contained in this first Paragraph is that the protection is only possible if the activities made by broadcasting organisation.
As you see those elements are trying to tackle some of the concerns and have been expressed when we receive comments in the section of definitions. So that’s the first Paragraph. Then we have the clarification that the object of protection does not confer the transmissions. Then we have the alternatives for additional protection and the alternative A is related for protection for simultaneous and near simultaneous transmissions by any means, and the alternative B as I explained before includes the chance to enhance the protection to not only near simultaneous, but deferred transmissions including the making available way to transmit.
And with some additional paragraphs limiting that protection for decision taken by a contracted party with an effect in the national treatment clause. So I’m sure that this is, this is the interesting moment to define this object of protection. Several explanations have been made before, so it’s a matter to see if we are in conditions to consider that putting beside the issue of cablecasting which we have expressed that it will be tackled and discussed with recent suggestion.
If this draft for protection reflects the consensus in this room or not, and to what extent. We open the floor
Japan has the floor.
>> JAPAN: Thank you, Mr. Chair. Regarding Paragraph 3, Japan thinks that the protection of simultaneous and near simultaneous transmission should be optional, not mandatory. In alternative B of Paragraph 3, deferred transmission on demand transmission becomes optional protection, however, simultaneous and near simultaneous transmission becomes mandatory protection even in alternative B. We think that there are different view among members on whether or not so protect simultaneous or near simultaneous transmission. In this regard, we think that more flexibility should be given to each member state on the protection of simultaneous and near simultaneous transmission. As we already stated at the previous session, Japanese proposal in the document SCCR/27/2 rev Article 6B gives enough flexibility on this issue because the protection of simultaneous and near simultaneous transmission becomes optional and as a proposal. Therefore, as Japan proposes the Japanese proposal shall be reflected in the text. Thank you, Mr. Chair.
>> CHAIR: Thank you very much, the Distinguished Delegate from Japan, for their proposal. As you have heard, the Distinguished Delegate from Japan has stated that we could find another alternative which is to turn the protection of simulcasting and near simultaneous transmissions voluntary. And he has referred to a specific proposal submitted in previously and contained in a previous document of this committee.
I’ll request just for reasons of clarity, I will request the Secretariat to show us that proposal made by the distinguished Delegation of Japan in previous sessions of this committee, and to show it on the screen and to read it. Okay. While we wait for the suggestions to be screened in order to have clarity what specifically, what they are suggesting as an alternative, additional 589 ternitive to this matter, I think that we can then after seeing it start listening your views regarding the options we are facing on this core section of object of protection.
While we screen it, I think that at least we can read it. I have it here, so I will request Secretariat to read it while we find it on the screen digitally.. Thank you. Now that we have it, can we read it out loud, please?
>> SECRETARIAT: Thank you, Mr. Chair. Article 6B, protection of signals transmitted over computer networks. Proposal from the Government of Japan. One, broadcasting organisations and cablecasting organisations shall enjoy protection for their transmission signals excluding on demand transmission signals that are simultaneous and change transmission signals of the broadcast, [, end of bracket, over computer networks. Two, the protection provided for in Paragraph 1 may be claimed in a contracting party only if legislation in the contracting party to which the broadcasting organisations and cablecasting organisations belong so permits, and to the extent permitted by the contracting party where the protection is claimed. 4, the extent and specific measures of the protection granted in Paragraph 1 shall be governed by the legislation of the contracting party where protection is claimed.
>> CHAIR: Thank you very much. This is the Article that was mentioned in the last intervention from the Japanese delegation. It will be screened for while, and since the suggestion is that it come up as an alternative of what we have in the document, I would like to see some comments regarding this to see if there is support for this for its inclusion as I expressed before, what I’m trying to do is not to collect individual suggestions in order to make a compilation, but to ethose alternatives chai are decisive because there is support expressed for that view.
>> UNITED STATES: Just to say we think the Japanese proposal deserves serious consideration. We have been aware of it for some time, and we appreciate the Delegation of Japan bringing it to our attention again. Thank you, Mr. Chairman.
>> CHAIR: Well, thank you for that reaction, which gives us a clue that it’s not only an individual position, but supported to be analyzed as one of the alternatives we face on the issue of the object of protection. Any other comment? We see CRIC button pressed. Is CRIC requesting the floor? Okay. Thank you. Well, this is a situation now — I’m sorry. Yes, CRIC has the floor.
>> CRIC: I’m sorry, up to this point concerning the Japanese proposal under Article 6 in SCCR/27/2/REV. I think this is a very good tool for the bridge between some people wish to protect the transmission over the Internet, and other people wish to limit protection excluding over, transmission over the Internet. So this point is very long discussion from the start maybe of the 2000, 2001 and some of the member states wish to protect the transmission over the Internet not only some broadcasting but also webcasting and so on.
But in the years 2006 and 2007, we are the ones decided protection of Webcasting and simultaneous casting shall be a separate issue in General Assembly. However, in these other years, technical advance so many countries wish to make the protection of transmission over the Internet, but some countries even now don’t want to include the protection of transmission over the Internet.
So in this circumstances, the optional style is a good tool for compromise, I think. So I think as United States stated before, this other proposal is deserving, I think. Thank you very much.
>> CHAIR: Thank you very much
Nigeria […]
So in that regard, I am not aware that we, based on the last session and the session before that, that we were still having such strong contentions about simultaneous or near simultaneous retransmission. So my intervention is just to encourage us to work towards closing, narrowing the gaps on the area of divergence so we could advance significantly in the work of the committee. Thank you.
>> CHAIR: Thank you very much for that approach. Russian Federation has the floor.
>> RUSSIAN FEDERATION: Thank you, Chairman. Chairman, I think that the Japanese proposal is a real step forward. It’s real progress for our discussion. It is something that can take us forward as we work on this basic document. I wanted to say that. I also wanted to point out that we have been discussing this document for more than 15 years, the idea of a treaty to protect broadcasting organisations, and in that time, technology has taken giant strides forward.
And I really think that no country in the world now can imagine life without the Internet and we have to recognize that. I also think we have to remember what happened at the Diplomatic Conference in the year 2000. Remember that there was just one issue on which we could not reach agreement at that time when we were working on audio visual performances.
And at that time, Russia proposed the idea of optional protection. We put that forward as a serious option. We said that if parties could not reach a particular agreement on a particular issue, then in fact it might be possible for there to be an option for protection. And that would allow everyone’s interest to be protected. If we couldn’t get that enshrined in a treaty. We put that forward at the time and I think it’s a valid approach to this kind of issue.
It’s so clear what is needed today. It’s clear that this is the kind of thing that can help us to move forward. And let me just emphasize this is something that does not in any way negatively affect the interest of any country, of any party. If we go for the kind of formulation that is now being proposed, each and every country would then decide whether or not there is a need for protection for the Internet or not.
And I think that would be a very good approach, a very good way of moving forward and we are certainly ready to support it. Thank you.
>> CHAIR: Thank you very much for your view regarding the suggestion made by the Distinguished Delegate from Japan. EFF has the floor.
EFF>> We don’t support the Japanese proposal. We think that just because there is dissent over this issue, making it voluntary isn’t the right solution. It doesn’t solve the problem and actually largely defeats the purpose of having a treaty that’s meant to lead to some degree of harmonization. So we don’t think that this is a productive suggestion. Out of the options given in the Secretariat’s original text, the one that we think is the better of them is the narrower one which is alternative A, but in general, we don’t think that the transmission of signals over computer networks is within the scope of the treaty insofar as there is general support for it, and if we were to include the Japanese proposal in the discussions then it would just lengthen the negotiations further and I’m sure none of the delegations really want to spend another 20 years negotiating over the inclusion of protection for signals over computer networks. Thank you, Mr. Chairman.
>> CHAIR: Well, thanks for your view. Okay. So it’s — it was interesting to listen to your opinions regarding the Japanese proposal. I think that it is more than just screening it. We will help you, we will help your analysis if you have the chance to see it in paper. At this point, you know where, what is placed and I will ask the secretarial to remind us where it’s placed in the documents that we have in order for you to find it and I’m sure that has it has been said on the basis in which it contains some negotiations could be and at this point as I said I could take from the discussions during this day try to give you an updated tool, it’s still my intention.
So I will try to foster discussion doing so it doesn’t mean for sure that we are going in that direction. It is just to reflect how the discussion has been made during this session, during this afternoon and to help the analysis that you will make on those proposals. European broadcasting Union has the floor.
>> EUROPEAN BROADCASTING UNION : Thank you, Mr. Chairman. I think it has already been expressed by some delegations this morning especially you’re teen uniyop and the sebsz R CEBS region that in order to make this meaningful treaty we need to include the activities of broadcasters not only of today but also of tomorrow and we can already see in our region that the trend within broadcasting activities is also to the benefit of the public towards more and more on-demand transmissions, and this, of course, will raise the question whether it is not more advantageous and more forward-looking for a treating to include on-demand transmissions in the scope of application.
Now, I can certainly see that there is aI need for flexibility on this point, especially because we are looking probably at the most difficult element of the treaty because it is a moving target. The longer we discuss this treaty, the more the technology will have developed and the more we are actually looking at something which may not have existed sometime ago. This issue, for example, was not on the table in 1998. It was not on the table in 2006, but it is, of course, today very lively among the activities of broadcasters.
So I think that’s probably we should not let’s say try to find a final solution here, but may need to see whether we can build in certain flexibilities in order to move it forward. Thank you.
>> CHAIR: Thank you very much for that view. I think that that’s a true. We can try to think about flexibilities regarding each stage of or element that is part of this subject of protection. And theoretically one could measure flexibility when there is a minor consensus or less flexibility where there is major consensus, but I think that that’s a mixture that we have to prepare probably in another format of work now that we are trying to get deeper and analyze and exchange views regarding what has been said before.
And probably that could be the basis for work for tomorrow. Germany has the floor.
>> GERMANY: I can understand those delegations who want to have more flexibility in this case, but I really want to just illustrate that I think in the future our treaty will not have much cases where it will be applicable if we don’t introduce this, these transmissions over the Internet. I just want to make the case. We have in Germany some general broadcasters who transmit the signals by satellite and antenna.
They also have their Internet live stream on their own side. It’s maybe 30F.DE. You can view it live on the Internet. And if I question what is the easiest way to pilot the signal of the broadcaster, I say, well, it’s that live stream signal. That’s the easiest way to gather it all over the world, and if I want to use it and want to break the rights of the broadcaster, then I use the live stream signal.
I won’t use the satellite signal or the antenna signal. I would use the live stream signal, and many countries will have the opportunity or will take the opportunity to leave this out, then I don’t see much cases where the protection will be given for the broadcaster. Thank you.
>> CHAIR: Thank you for warning us what we are looking for. However, we have heard some alternatives regarding the different treatment that we could think about including the right to prohibit, for example, I recall that in previous sessions their resistance to include right to authorize is reduced when the right to prohibit has been mentioned to cover any platforms. Well, probably analyzing that way we could find some common ground to tackle the concern that you clearly express avoiding such unauthorized use of material, and on the other hand, having clarity on which is a set of, what we are protecting.
Well, as you see, it’s very interesting moment. It’s not my intention to in one session go farther in the next session, go back, in the next session go farther. I think that we have to build upon what we have seen before, and I find very interesting the tool of flexibility that we should take seriously, that’s very important. Additionally, we, if we recall the work we made on charts, it was, I have to recall that there was a sort of majority expressing positive view regarding the protection of simultaneous transmissions and near simultaneous transmissions and it was not the case of the other types of transmission like deferred transmissions and including making available.
If we are going to prepare flexibility, we should be reminded that that part or that difference of the protection we were discussing regarding the activities of simultaneous and near simultaneous transmissions, and the different treatment that could be made in other types of transmissions as the deferred transmissions.
This is even if it’s complex and difficult, I think that we now are in condition to try to, and to test a way to approach our positions and try to set a common ground on this. We will give a try this session because I think it’s very important to use this session and not future sessions in order to have an understanding of these long-time intent of having a treaty on this topic.
E.U.has the floor.
>> EUROPEAN UNION: Thank you, Chair. On the object of protection, we, a couple of points. First of all, in Paragraph 1, we, of course, think that pre-broadcast signals should be included here, so this text, the protection should extend only to programme carrying signals including pre-broadcast signals that this reference should be included in Paragraph 1.
As regarding Paragraph 2, this is an issue we have raised previously but we would like to emphasize here. We think that there is a case for protection of retransmissions of signal by broadcasting organisations, not to give protection to those that retransmit the signal, because the beneficiaries are always broadcasting organisations, so the ones that broadcast this signal initially, but we would like to make sure that there is protection also in situations where, for example, a broadcasting organisation is transmitting a signal, let’s say by satellite, and afterward, this signal is retransmitted by a cable operator, and is transmitted by cable.
And then it is intercepted when it’s transmitted by cable. We think that it is important that broadcasting organisation can act also in such situations. So not only when the signal is being intercepted when there is the initial transmission by the broadcasting organisation, but also where there is interception of the signal at any subsequent level or stage of retransmission.
And that’s why we think that Paragraph 2 should probably, although we have to still think what is the best way to approach this issue, should say that provisions of this treaty shall not provide any protection to an entity that merely retransmits a broadcast. So that it is clear that there is no protection for retransmitters, but there is a protection for retransmission for broadcasting organisations.
And this relates to the remark we made on the definition of programme carrying signal, because in the definition of programme carrying signal, there is this reference to the signal being as originally transmitted in any subsequent format. And, of course, when the signal is retransmitted by different tech technological means there may be reformatting of this signal.
So we have to make sure that whatever reformatting is being done of the signal, when these retransmissions are being made, the protection is maintained. As I said, we are also looking for, we are still looking for the best possible drafting tool to address this issue. As to, as to alternative A and B on the object of protection, we, of course, we, of course, want to have as broad an object of protection as possible here because we think that it is absolutely critical for this treaty to be meaningful and for this and already as mentioned by the Delegation of Germany, we need to have protection of transmissions over computer networks.
It is an absolute norm in Europe that there is a simulcast, live street broadcasting that organisations are offering in addition to their traditional broadcast. So the sigh mull casting is basically happening as we speak and has been happening for a long time, and we think that this must be protected by this treaty. The same with whether is it is near simultaneous or deferred transmission by any means or probably any medium is possibly a better phrase.
But so we are certainly supporting alternative B where this simultaneous and different transmissions are protected although we think that it should be protected this should be in the mandatory scope of protection. We don’t see a reason to have deferred transmissions as optional protection, but it should be part of the mandatory protection. There is also a reference here to transmissions that are made in such way that members of the public may access them at a place and time chosen by them which we see that in this document is treated probably as a subsection of deferred transmission.
That is why we were also mentioning that probably it would be useful to have a definition of deferred transmission, because the way we understood zephyred deferred transmission was that it was a linear transmission deferred in time, so it would be something different from a transmission made that members of the public would access it at a time chosen by them, but in any case we think that such transmissions, let’s say the last category of these transmissions, these on-demand transmissions should be at least to the extent that these are the so-called TV catch up transmissions should be also, should be also covered by this treaty. One final remark is that we think that probably in alternative A and B, we don’t need this wording notwithstanding Paragraph 2 above.
Because Paragraph 2 refers to retransmissions which are by definition carried out by third parties. While what we are looking at here is transmissions that are carried out by broadcasting organisations. So this is not clear to us this reference notwithstanding Paragraph 2 because it seems to, these seem to be two very different issues. I think that these are the most important remarks. Thanks.
>> CHAIR: Okay. Thank you very much for your comments regarding the three Paragraphs of object of protection. Any other comment related to this section? Okay. If not, we invite you to exchange — Latvia has the floor.
>> LATVIA: Thank you, Mr. Chairman, for giving me the Chair. The CEBS group would like to second the arguments and the views expressed by European Union on the object of protection. Thank you.