OUTCOME

Please note that this is an unofficial version transcribed by the NGO coalition (Petra Buhr (IP Justice), Sherwin Siy (Public Knowledge), and Gwen Hinze (Electronic Frontier Foundation)), on the basis of Member States' comments in the afternoon session of June 22, 2007 at the SCCR S2 and as adopted 5:02 pm June 22, 2007.

WORLD INTELLECTUAL PROPERTY ORGANIZATION

Second Special Session of the SCCR

Geneva, June 18 to 22, 2007

CONCLUSIONS
of the Second Special Session of the SCCR
on the Protection of Broadcasting Organizations

prepared by the Chair

Following the decision of the WIPO General Assembly in its Thirty-third Session in September/October 2006, the Standing Committee on Copyright and Related Rights (SCCR) convened in the First and Second Special Sessions, from January 17 to 19, and from June 18 to 22, 2007.

The decision of the General Assembly stated that: "...the sessions of the SCCR 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 Diplomatic Conference will be convened if such agreement is achieved. If no such agreement is achieved, all further discussions will be based on Document SCCR/15/2..".

The discussions in the Second Special Session were based on the Revised Draft Basic Proposal (SCCR/15/2 Rev) which is the official comprehensive working document of the Committee and on a non-paper dated April 20, 2007 prepared by the Chair.

During the session the delegations made their general statements and discussed thoroughly the procedure of deliberations. The intergovernmental and non-governmental organizations were given the opportunity to make statements.

In the informal discussions it became evident that during the session it would not be possible to reach a agreement on the objectives, specific scope and object of
protection with a view to submitting a revised basic proposal to the diplomatic conference as mandated by the General Assembly.

While several delegations urged that the efforts to conclude a treaty on protection of broadcasting organizations be continued, it was felt that there was a need for taking time to reflect before proceeding further to explore agreement as mandated by the General Assembly

The committee made the following recommendation:

The General Assembly

* takes note of the current status of the work in the SCCR on the protection of broadcasting organizations and cablecasting organizations.

* acknowledges that progress was made in the process towards better understanding of the positions of the various stakeholders,

* recognizes the good faith efforts of all participants and stakeholder organizations throughout the process,

* expresses the wish that all parties continue to strive to achieve the objectives of protection as mandated by the General Assembly.

The General Assembly

* decides that the subject of protection of broadcasting and cablecasting organizations be retained in the agenda of the SCCR in its regular sessions, and considers the convening of a diplomatic conference after there is agreement on the objectives, specific scope and object of protection as mandated by the General Aseembly in its 2006 session.

--

[NB Asian Group version:
decides that the subject of protection of broadcasting and cablecasting organizations be retained in the agenda of the SCCR in its regular sessions and considers convening of Diplomatic Conference only after agreemnet on objectives, specific scope and object of protection as mandated by the General Assembly has been achieved]

========

Second Special Session of the Standing Committee on Copyright and Related Rights

Day Five - June 22, 2007

Notes taken by:

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

[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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-=-=-=-=-

12 noon [Scheduled start was 10 am]

Chair:

This is the first small part of a formal session after a while.

[GH: The meeting has proceeded as "informal" (non-recorded) discussions in which NGOs and IGOs have not been permitted to attend since Tuesday morning]

We have had informal sessions for a while. Today we should conclude this meeting. I should say postiviely conclude this meeting. I have been engaged in consultations. that is why I will now call for a break. I ask the regional group coordinators to come to Room B to hear the conclusions of these consultations. Then we might set a time for a conclusion of the plenary - perhaps 1:30 or 2.

Bangladesh: I ask the Asian Group Member States to stay around in the lobby for consultations.

Algeria: I wanted to say approximately the same thing to my colleagues from the African Group.

Poland: And I say the same for the Members of the Central European and Baltic States group.

Barbados: And similarly for GRULAC.

Italy: Last but not least, I ask the same for Group B members

Germany: Last request, for European coordination, please stay around.

Chair: the only other thing we should fix is the start time for the plenary conclusion. I propose 2pm for the last plenary session to conclude the outcome of this meeting.

12:05 pm Mtg adjourned
===========

At 1:30 pm the following Draft Conclusions document was made available in the WIPO Lobby:

WORLD INTELLECTUAL PROPERTY ORGANIZATION

Second Special Session of the SCCR

Geneva, June 18 to 22, 2007

DRAFT CONCLUSIONS
of the Second Special Session of the SCCR
on the Protection of Broadcasting Organizations

prepared by the Chair

Following the decision of the WIPO General Assembly in its Thirty-third Session in September/October 2006, the Standing Committee on Copyright and Related Rights (SCCR) convened in the First and Second Special Sessions, from January 17 to 19, and from June 18 to 22, 2007.

The decision of the General Assembly stated that: "...the sessions of the SCCR 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 discussions in the Second Special Session were based on a non-paper prepared by the Chair and the Revised Draft Basic Proposal (SCCR/15/2 Rev) which is the official comprehensive working document of the Committee.

During the session the delegations made their general statements and discussed thoroughly the procedure of deliberations. The intergovernmental and non-governmental organizations were provided a possibility to make statements.

The Committee started its work, beginning from the objectives and the preamble in a formal plenary session. The operative articles were discussed in an informal setting. The proposed provisions were discussed, and amended and additional proposals by delegations were compiled in a new non-paper by the Chair.

In the informal discussions it became evident that during the time available it would not be possible to finalize a Revised Basic Proposal that would amend the agreed relevant parts of SCCR/15/2 Rev.

Several delegations urged that the efforts to conclude a treaty on protection of broadcasting organizations be continued.

The committee made the following recommendation:

The General Assembly

* takes note of the current status of the work on the protection of broadcasting organizations, cablecasting organizations and webcasting organizations

* acknowledges the progress made in the process towards revising the
Draft Basic Proposal

* recognizes the good faith efforts of all participants and stakeholder organizations throughout the process of updating the protection of traditional broadcasting organizations and cablecasting organizations and ensuring their continued relevance in the present and future communications environment

* express the wish that all parties jointly lay the foundation for the modern framework of protection for broadcasting organizations, cablecasting organizations and webcasting organizations

The Director General

* convenes a session for joint analysis of notions, terms and conceptual basis of the instrument in September 2007

The General Assembly

* decides that a Third Special Session of the SCCR be convened in
November/December 2007

* decides to postpone the Diplomatic Conference from November/
December 2007 to be held in 2008.

========

2:19 pm Plenary meeting resumed.

Chair: Good afternoon dear friends and colleagues. Now we proceed on the rest of the items on our agenda.

The first item is to agree upon conclusions. We have distributed a draft set of conclusions. It was made available in the lobby and considered in the group meetings.

You will see that the draft starts off with factual matters. It tries to reflect the facts only. It says the fact that we were not able to come to an agreement. It has a reminder that several Members were not in agreeement. Then the operative part follows. It contains the recommendations to the General Assembly, an opportunity to have a special analysis, to have the matters considered on an expert level, the operative recommendation to the General Assembly to have a determination at the Standing Committee and reflecting the fact that it was not possible to hold a Diplomatic Conference

So I submit these for your approval.

I have a couple of amendments that I will give to you now.

Para 4:

Substitute "given the opportunity" in place of "provided a possibility"

Para 5:

Substitute "new" [proposals] for "additional".

Now that is the technical amendments. Now I have invited the Group Coordinators to convey the messages from the groups.

Bangladesh obo Asian Group:

I can report to you that the draft conclusions as presented, the general preference is to have a much shorter text without specific timelines and we have specific amendments to certain paragraphs depending on which way it happens

We are looking forward to a document that describes what actually happened, noting that we had a discussion, positions were clarified, but that no agreement was reached. We'd like a much shorter document.

Chair: Of course if you would like a shorter document. That is possible, if other countries agree.

Bangladesh:

Apologies. English is not my first language. What we want is a much narrower text. We have comments on almost all the preamble paragraphs and all the bullet points. We can do it preamble paragraph by preamble paragraph if you wish, however you would prefer.

Barbados:

I have not been able to consult with GRULAC members because only one member was present after our consultation. So I have no mandate to speak on behalf of the Group. One Member suggested that all of the GA mandate should be included and most of the preamble removed.

Algeria obo the African Group:

I am in much the same position. After our consultations with the Chair I think that the African Group needs another meeting to discuss these points. Our group thinks that the discussions should continue but as to how that should take place, and timeframes etc, I would like to request a suspension of this meeting so that the AG could meet in the hallway and sort out these details.

Chair:
Of course we would like to accommodate the AG, but perhaps it would be wise to hear the views of other groups, so that they can be taken into account in consultations. We should also take into account the fact that translation services are available only until 5pm so we should take that into account in formulation of conclusions acceptable to all.

Are there other group messages to one another? What is your time ambition? What sort of break we should have?

Algeria: I am not sure, but perhaps half an hour for our Group.

Chair: Let's have half an hour, that will leave us two hours, and if you need any other assistance, or messages to other groups please send someone.

Algeria: AG meeting in Room B

GRULAC: Mtg in Bilger Room

Chair: Meeting is suspended for half an hour, will resume at 3pm

[GH: 2:35 pm Ben Ivins (NAB) has walked over and is talking to the US delegation; Japanese broadcasters talking to Tilman Leuder from the European Commission]

----
3:40 pm

Chair:

Now we had opportunity for consulation. We have one hour 20 min left. Let us see what sort of conclusions we can agree.

Bangladesh on behalf of the Asian Group:

We would like to request the following modifications:

- Para 2, the Asian Group believes that we should include the full [2006] General Assembly mandate

-- on para 5, we would like to change:

"in a formal plenary sesssion" and say

"the operative articles of the non-paper were discussed in an informal setting and delegations made proposals on those."

We believe that this reflects accurately what happened during this seession and therefore want to delete sentence three.

In para 6, delete " time available" and replace with "session", then add after "to": "reach an agreement on the objectives, specific scope and object of protection with a view to submitting a revised Basic Proposal to the Diplomatic Conference as mandated by the General Assembly." then delete "finalize a Revised Basic Proposal that would amend the agreed relevant parts of SCCR/15/2 Rev."

We would also like to change para 7. We think the current language has scope for misinterpretation so would like to change it

Add "While" at front,then add to end ",it was felt that there was a need for taking time to reflect before proceeding further to explore agreement as mandated by the General Assembly."

On the bullet points of the Recommendations:
- in bullet point one, add "in the SCCR" after "work"
- put "and" after "broadcasting organizations" and "." after "cablecasting organizations" and delete "webcasting organizations"

- in bullet point two, change it to:
"acknowledges that progress was made in the process towards better understanding of the positions of various stakeholders"

- in bullet point three add"." after "process" and delete remainder.

- change bullet point four to"
" expresses the wish that all the parties continue to strive to achieve agreement on the objectives of protection as mandated by the General Assembly"

Director General
joint analysis session para - ask for deletion. no need

Operative Recommendations to GA - replace both bullet points with this:

"decides that the subject of protection of broadcasting and cablecasting organizations be retained in the agenda of the SCCR in its regular sessions and considers convening of Diplomatic Conference only after agreemnet on objectives, specific scope and object of protection as mandated by the General Assembly has been achieved."

Chair:

Thank you for your elaborated suggestions for refinement. Algeria has the floor.

Algeria obo AG:

Thank you for drafting this document which will be the basis for our discussions. We hope that our contributions on this will help plenary reach decision on this.

African Group supports continuation of the process. We consider that we have all worked hard, made efforts and made progress and we are confident that with further efforts, we will acheive what we all hope to achive. Therefore we are in favor of continuing the process.

However the African Group would like to ensure that the process is succcesful, to avoid mistakes that have led to this regrettable situation where we have a failure.

The first thing is that we have to confine ourselves exactly to the mandate of GA, We think issue of webcasting is relevant but however there has already been a decision on this. We all agreed that webcasting was somthing that we could deal with later. We note that there have been several efforts to reintroduce it. We feel that this will slow us down. We need to follow mandate of GA which focussed on protection of traditional means of broadcasting.

The second thing is that we need to have an agreement before we agree on a date. We think that we were over optimistic before. The fact that we agreed on date before agreement dealt it the fatal blow.

We also have some general comments.

- in bullet point one and also bullet point four of the draft recommendations, delete'
"cablecasting organizations and webcasting organizations"

We feel that the last paragraph of preamble is drafted in an unbalanced way. Reminds us that some delegations did and some did not. We would like this removed.

In bullet point four, "Exresses the wish" - we would like to delete "modern framework". The scope of our mandate was already agreed by the General Assembly. So what does it mean? We think it will cause confusion.

Operative provisions:

- joint analysis sessions - What type of session would it be? Is it formal or not? If informal, would it not be better to discuss formally?

On GA:

- African Group is of view that differences we have seen this week were far more important than a singe session could hope to bridge the gap between the two groups, so we'd like to add: "with the possibility of a Fourth Session"

And on the second (last) bullet point, we'd like to change it to:

"decides to postpone the diplomatic conference to a date to be determined depending on the outcome of the negotations at the Third Special Session at November/ December 2007 and the possible Fourth Session"

There must be minimum amount of divergence on document. We want to ensure that DC would be a success and ensure the credibitliy of WIPO. We would like it to be an organization that does not set dates and then does not fulfill them. So we would like agreement on the content first, before convening a diplomatic conference, but we are flexible.

Chair:
Thank you. It seems that there is at least some concordance with our previous views and discussions

Barbados : there are divergent views within GRULAC on the document. The GRULAC members will therefore take the floor separately.

China:

We would like to thank the Chair for his work. Under your guidance and with several years of work, we have acheived progress. This is known by all. We have not reached our achievenment during this meeting, but would support continuation of talks. New instrument needed to protect broadcasting because of impact brought about by new technology.. At same time, we need to find balance with other rightsholdres and the public interest. We have always had this position. We hope that Chair will continue efforts. With work of all we will achieve progress.

On draft recommedation, we think that it objectively states conclusions of our meeting. We can accept the draft with the following modifications:

Under GA

- first and fourth bullets: suggest remove "webcasting organizations"

- last paragraph on General Assmbly: We agree with position of Asia Group. Would like to see clarificaiton about session to be convened by Director General. What is nature of session? Place and participatnts and date?

Mexico:

Thank you for your work Mr Chair. We would like to thank WIPO International Bureau. Mexico considers that protection of broadcasting is key issue in protection of global economy and we are commitmeed to treaty, and the social benefits that this woul9d bring to public interest.Therefore during this meeting, we had consultations with ministry of education, and various other ministries, which in our country are linked to the protection of copyright. During this meeting we showed flexiblity , we limited our intereventions to only those that are relevant to us. We came with the ambition of buidling, so we have generally expressed to you our desire to continue work in accordance with GA mandate. that if there is no agreement, then the basis for future discussion is SCCR/15/2.

So we propose that we meet at end of this year to move towards a DC. The only thing we should not do is do nothing and leave the way open for piracy.

Australia:

We are sill reflecting on suggestions for amendments so far, and are reserved on that so far. If page 2 stays in its current form, then third bullet point, we would like to add" after "and" "developing protection for cablecasting".

Going further"

delete "their" continued relevance, and replace with "its".

Algeria:

Thank you. Apologies for taking the floor again. I would like to make a quick clarification: when I said delete "cablecasting organization" that was not right. I am only talking about deleting "webcasting organization" in first and fourth bullet points.

Japan:

Thank you for your precise draft of conclusion. We support in principle. Although some regional groups have commmented, noting the reference to running out of time, we are running out of time, we should leave the document as is. There may be some points of difference on whether to hold Fourth Special Session or whether to convene Diplomatic Conference in 2008, these are small matters, for decision of GA. These are small matters, and should be the mandate of the Chair.

[GH: Yes, they really *did* say that, in English]
.
El Salvador:

I am taking the floor on the express instructions of my government. As we have been saying since the start, we need to draft a treaty that responds to the needs of our national sectors and our citiizens. We are now showing flexilbity in respect of treaty we have supported for long time. We are not adverse to having fifth, sixth or even seventh meeting if necessary but don't want to tie ourselves down with dates. Our goal is simply to have a treaty that protects our national sector.

EC:

We would endorse Bangladesh's proposal to change the fifth para of the preamble [GH: change "addtional" proposals to "new"]. We have no comments on text itself.

We think it reflects a number of things we discussed and timetable is reasonable if everybody wiilling to have more debate on concepts involved in open sessions. It has emerged during this meeting that this is core issue.

We appreciate sincerely the time and effort you have put in over last decade and hope you'll continue to guide us.

[GH: ie We support Jukka Liedes continuing on as Chair, for all you other Member States that don't.]

We would be happy to consult with other delegations on our views on this. We support the process going forward. Thank you to WIPO and all stitting on podium for efforts to reach constructive agreement.

India: There is a time and place for everything and an idea whose time has come is unstoppable. Despite our best efforts over the last decade, our inabiltity to reach agreement reminds us of the fault lines that exist and that we need to conquer. We counsel against rushing towards a Diplomatic Conference in light of the experience of the Audiovisual performers diplomatic conference.

Sometimes a lack of agreement is a form of agreement in itself. After our patient exploration, we have come to conclusion that there are divergent views and it will take some time to reconcile them. As the Chair's non-paper said, exclusive rights were felt to be absolutely necessary by one sector - the broadcaster - or the whole process should be abandoned, We feel that was inconsistent with our mandate on signal based approach so came to the conclusion that there are significant differences. Was the whole process a waste of time? No not at all. Now we have a better understanding of the views of others. I would suggest that we bring this entire state of affairs to the attention of the General Assembly and ask it to decide what is the best way forward.

In the meantime, we need time for clear-headed reflection on what we have achieved in past and the rationale for protection of broadcasters. We have so far spent much time in efforts on one issue but there are many other issues in the SCCR that need our attention. Access to knowledge and exceptions and limitations in the educational environment are important and interesting issues to be considered.

In our daily lives we now see the serious important concerns raised by technological protection measures for access to knowledge and exceptions and limitations. We need to understand the experience of countries that have implemented these measures. And we need time for reflection on these issues.

Mr Chair, we thank you for all your time and effort and for motivating us.

[GH: Loud cheers for India!! ]

Norway:

Thank you Mr. Chair for your tremendous work over years, and for your colleagues and WIPO Secretariat.

We can generally support the proposed conclusions in the document in front of us.

Chair: Looks like we can consider the amendments proposed.

Brazil:

We have a couple of additional amendments

- in paragraph two of the preamble, we would like to insert the full text of the General Assembly's mandate, including the last sentence, which notes that if there is no agreement about elements of a signal based approach then discussions proceed on SCCR/15/2.

- we request deletion of para 5 of the preamble. It is hard to characterize work done in informal consultations.

- para 6: WE would want it to say "During informal discussions it became clear that it would not be possible to reach agreement" as per Asia Group's suggestion

- We also support Asian Group's proposal on para 7

- and Asian Group's proposal on all 4 bullet points

- we also agree with Asian Group's three final elements on recommendations to GA. We believe that the degree of convergence we have seen on your non-paper, would want time for reflection

- support regular session SCCR Nov/ Dec 07

- don't support date for convening Dip Con

- convening a DC should be conditioned upon fulfilment of 2006 GA mandate concerning agreement on a signal-based text

- on para 3 of preamble, we suggest add non-paper of Chair "of April 20, 2007"

Chair:

Let us proceed to discuss the amendments proposed in order in which they appeared.

1. To include full mandate of GA in paragraph 2, as Brazil suggested. We could do this already. Nothing intentional here. Just that the source from which this was copied did not include final sentence but we can agree that I presume.

2. I presume that we can add the date of the non-paper as April 20 and that the order of the elements will be reversed.

3. The 4th para will be maintined as it is. Sorry, we have a proposed amendment that I made - to replace "provided a possibility" with "given the opportunity".

4. On 5th proposal, Brazil proposed the deletion of it. The Asian group, supported by the EC, made suggested modifications.

Turkey is asking for floor.

Turkey:

We have difficulty accepting Brazil's proposal. We should have a proposal that reflects reality. We worked here day and night. There was a new non-paper which contains all the proposals made, including those of Brazil. It is neutral. It is just what happened. We think it would be helpful. There is still SCCR/15/2 and still a non-paper.

Chair: There have been discussions in corridor on non-apper. It is in draft form. It reflects something but does not give full picture. It includes some things but not all things expressed, perhaps softly. That is why the process of compiling it was criticized. It is a non-paper and has no status.

So there appears to be interest in maintaining para 5 with modifications suggested by Asian Group and supported by EC.

would the delegation that wanted deletion be in favor of this?

Looks like there would be postive by Turkey.

Brazil:

we propose deletion. We don't want to give impresssion that we discussed ARticles 2.3. and 4 nor that we agreed that it be transposed to preamble. That is why I suggested deleting it, but if outher countries want to spell that out instead and keep para 5 that would be possible.

Chair: we have now moved up our reference on SCCR/ 15/2 being formal document. Isn't that sufficient? No? So we delete it.

And now we have Asian Group's comments on para six:

During the "session it would not be possible to reach agreement on the objectives, specific scope and object of protection with a view to submitting to the GA a revised Draft Basic Proposal"

could we add?

"to the treaty" like this:
specific scope and object of protection to the treaty

Bangladesh:

We proposed this wording based on GA mandate and those words are not there.

Chair: ok, so this seems to be acceptable to all in way proposed by Asian Grup.

Last preambular para, there are two options - the revised Asian Group proposal for amdt and the African Gp proposal to delete it

[Reads out what is above]

There are several members of the Africa Group - do you accept it as proposed amendment by the Asian Grup. Ok is accepted.

Now turning over the page:

First bullet point:

- delete "webcasting organization" and add ", and" between.

- add "in the SCCR"

Seond bullet point:

- then would go as Asian Grp again:

- acknowledged that progress was made towards better understanding of the positions of the various stakeholders"

Seems to be acceptable to all so adopted.

third para - the Asia Gp proposal is to delete after "process".

If acceptable, can delete remaining lianguage which does not add anything special to outcome. Sounds like we could adopt that.

Fourth bullet point:

- there is the more elaborated version of the African Group again:

"expresses the wish that all the parties continue to strive to achieve the objectives of protection as mandated by the General Assembly"

Sounds like that this is acceptable.

Next point, on Director General, question as to nature of the meeting. Proposal that there would be an informal session, an expert conference, but now there is also a reference from African Group, and supported by Brazil to delete it.

Most likely it falls within the prejorative of the Director General to adopt all means necessary including organizing seminars where necessary, so we will delete it.

GA:

Then there is the proposal of AFrican Group to have fourth session. It was understood that the third sessions would be in November/ December, so both Afr Gp and are simlar to Asisan Grup

On last point, the African Group and Asian Grop proposals are simlar - the ideas are the same . WE have been now quite following the Asian line.

So I will now read the African Group proposal

"The subject of protection of broadcasting and cablecasting organizations be retained on the agenda of SCCR in its regular sessions,and consider the convening of a diplomatic conference after we make agreement on objectives, specific scope and object of protection as mandated by GA in its 2006 decision.

[GH: This is what the Asia Group said:

"decides that the subject of protection of broadcasting and cablecasting organizations be retained in the agenda of the SCCRin its regular sessions and considers convening of DC only after agreemnet on objectives, specific scope and object of protection as mandated by the GA has been achieved."]

But this language in its proposal encompases that there an understanding about Thrid session in deate of Nov/ Dec.

Bangladesh:

Actulaly that wea made by another delegation. We would prefer to leave timing of DC to be a matter for the GA.

Chair: Well it refers to regular sessions, so timing is clear.

Seems to be agreement on that, so we have now agreed on all the proposals in the document

Bangladesh: If we are concluded I have a general statement I would like to make

We do not see this as an end of process We should first seek broad agreement on concepts rather than specific language, we should consider viewpoints of all MS. Remain committed to process. Thanks Chair, VC and Secretariat.

Chair: We now proceed to item 7, other matters, there are none, so we may proceed to closing of sesison. No requests for floor so I declare the Special Session closed

5:02 pm