[A2k] Interesting, on the xcasters treaty

Seth Johnson seth.p.johnson at gmail.com
Tue Nov 29 09:00:32 PST 2011

Remainder of the discussion pasted below.  Note the clarifying
question from the EU and the discussion of TPMs -- this is indeed
about the content, because (in their strange legal minds, where the
public domain only exists by virtue of language granting it so) that's
the only way a TPM regime can work.

On Tue, Nov 29, 2011 at 11:34 AM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> Recently finished discussion below.  Both options ("fixed signals" or
> "period of enforcement") in the explanation by the South Africa
> delegate at the end are about covering the "content" -- they aren't,
> even in the "period of enforcement" approach, talking about how the
> works within would be somehow distinguished:
> [From where I entered the stream]
> [. . .] You were saying the period would be computed from the end of
> the year in which the broadcast signal was broadcast. I have the
> impression that perhaps not in all national legislation would compute
> it in the same way, calculate it in the same way, at least in the case
> of Peru, I think, we compute protection as the 1st of January -- the
> year following the broadcast.
> So I would just like to ask the sponsors whether there was a specific
> reason for having raised this way of computing or calculating the
> protection period or if they had carried out consultations and if that
> had been the result of these consultations or just an initial
> alternative.
> Thank you, sir.
>>> CHAIR: Thank you Distinguished Delegate.
> Mexico, Mexico like to answer or South Africa? Mexico has the floor.
>>> MEXICO: This formula which we are handling for the term of protection is similar to what has been handled in the different treaties, particularly in WPPT and Article 17 on the term of protection. It has established that 50 years in favor of the phone no gram producer. Also making reference to the end of the year in which the fixation had been made. This does not prevent us from being able to establish the other proposal pointed out by the delegation of Peru, similar to what Mexican legislation contains.
> Because what Article 8 says is a minimum period and then establishing
> the next year that we are extending the term of protection and this is
> beneficial to the broadcasting organisation. Paragraph.
>>> CHAIR: I call on India followed by China.
> India, please.
>>> INDIA: Mr. , our delegation opines that the signal once it is for the public reception, it ends. Once it is, the reception for the public, the life of the signal is completed.
> So the question of giving term is very doubtful; however, the term of
> protection here is linked with the Article 6. The Article 8 is in
> ex-trick kaly linked with Article 6. We would like to see how the
> Article 6 shapes up and as I -- as the Indian delegation mentioned
> earlier, I would like to discuss a few issues pertaining to Article 6
> with our distinguished South African delegation and distinguished
> Mexican delegation.
> Once those doubts are cleared, we would like to come back, we reserve
> the right to come back in the future. Thank you.>> CHAIR: Thank you.
> I call on China. China has the floor.
>>> CHINA: Thank you, Mr. Chairman.
> Our question is quite linked to the question asked by the Indian delegation.
> We had the impression that the calculation of the term of protection
> is the understanding as regards the method based on the signal and
> that this is all linked. China's delegation would like to know the
> fact that in our treaty you mean life signal when you are talking
> about a signal?
> Or the signals which are already fixed signals?
> Because for us the 20 years of the term of protection, particularly
> the way in which it's calculated gives us the impression it's fixed
> signals.
> Our question is for the South African delegation or from Mexico. Is
> our understanding right or correct?
> Thank you.
>>> CHAIR: Thank you very much, sir. I call on South Africa.
>>> SOUTH AFRICA: I think the understanding is correct, it's that it really much depends on which alternative you select under Article 6 in terms of how you then approach the term of protection.
> If you select alternative A which captures that fixation of the
> broadcast signal, you would in terms of your terms of protection go --
> explicitly state the number of years.
> If it is alternative B, where you look more at the transmission of the
> signal in terms of it being broadcast and then once it's broadcast
> it's over, the term of protection would not necessarily be the same;
> you would probably be looking more from a legal enforcement
> perspective in terms of what period of time you'd want to give the
> broadcaster to be able to enforce his right around his signal once he
> becomes aware of it. I think that would be the aspect.
> So it is correct it very much depends on the alternatives you select in 6.
>>> CHAIR: Thank you. I call on Senegal.
>>> SENEGAL: Thank you, Mr. Chairman.
> Just a brief concern I would like to share as regards the calculation
> of the term of protection. In the calculation of this term of
> protection, we only take into account the end of the year in which the
> broadcasting signal was transmitted, but I do have concerns regarding
> the legal status of this signal as of the transmission date.
> We might find ourselves with a period which is not covered by any
> protection whatsoever if we don't take into account the fact that it
> might be useful as soon as the signal has broadcast it that the
> protection starts as of that point in time when the signal is
> broadcasted.



>> CHAIR: Any other distinguished delegation would like to take the floor on Article 8?
Then we'll move on to 9. Comments, questions on Article 9?
I would like to thank Mexico and South Africa's readiness to take care
of all these questions.
Switzerland has the floor.
>> SWITZERLAND: Thank you, Chair.
We note with approval Article 9-2 which aims to avoid any negative
impact on permitted uses. This is conditioned on an absence of
voluntary measures which could be understood as TPMs having precedence
over limitations. Was that the intentions of the drafters of this
Thank you.
>> CHAIR: Would Mexico or South Africa like to take the floor?
South Africa has the floor.
>> SOUTH AFRICA: Thank you, Chair.
I think the pointing to is that in some cases rights-holders to make
an attempt these days in the digital environment to provide the
content in ways that doesn't require you to have to overcome the
technology protection measure.
A good example these days is that you will often find your DVD or
Blu-Ray having also a note you can go to a certain website and acquire
the content which you have purchased digitally so that you don't have
to then break the protection measure that is actually on the DVD or
Blu-Ray. It's acknowledged you have the rights to be able to enjoy
that content which you have purchased, whether it's on your Blu-Ray
player or whether on your laptop or any other device and the
rights-holder has voluntarily attempted to provide you with that
access without you having to overcome or circumvent the technology
protection measures he has placedBlu-Ray so it can't be copied and
distributed in other markets.
So the intention of 2 is precisely to say it's only if the
rights-holder has failed voluntary to allow you to enjoy your content
away that you should then try to the -- try to exert your right
through the onerous way of actually attempting to break the technology
protection measure.
>> CHAIR: Thank you, sir.
I call on the EU. That will be followed by India. EU has the floor.
>> EUROPEAN UNION: Thank you, Mr. Chairman.
We also had a question regarding Article 2, photograph or Article 9,
paragraph 2, which was partially answered already but nevertheless, in
the light of Article 3, paragraph 1, in the light of the principle
that is related that the protection does not extend to the underlying
content. We were wondering why in this paragraph there is a reference
that a reference to protection of the work being broadcast.
Not only to the broadcast itself. Since we are only talking about the
protection of the broadcast here.
If maybe the distinguished delegation of South Africa could shed some
light on this.
>> CHAIR: Thank you, Madam.
Would Mexico or South Africa like to answer this question or provide
Meanwhile, I give the floor to India.
>> INDIA: Thank you, Mr. Chairman.
Many years ago, when I was working in the public service broadcast, we
started a new television sports channel called (?) We acquired the
rights to telecast cricket matches in India from the BCCA, board of
cricket control of India.
The BCCA right-owner forced our broadcaster to encrypt the signals,
because the channel, possibility of signal theft is more because --
the signal is encrypted, the cable operator has to get particular
decoder to deencrypt and send it. The other time the (?) Was not
existing in India but now DTH has become a phenomenon so encryption of
channel is nothing but technological protection. So these measures
should be used for this signal, whether uplinking, downlinking of the
When the viewer is viewing, the TPM should not come into the picture.
For example, time-shifting. There are several cases in I think the
U.S. case law or Indian case law whether time-shifting should be
allowed and then limitations exceptions.
So the core designation is time-shifting is not an infringement or piracy.
TPMs should not come into that picture once the signal is for the
public reception and in many -- it depends on the television monitor.
Thank you. We'll come back on this in later, and we'll have a
discussion with the distinguished delegations of South Africa and
Thank you.
>> CHAIR: Thank you.
Are Mexico or South Africa in a position to be able to answer the
concerns expressed by the EU at this point in time?
South Africa has the floor.
>> SOUTH AFRICA: Chair, I think we would request the delegate of the EU to rephrase the question because we didn't pick it up quite well so we can give an appropriate answer.
>> CHAIR: Would you -- would the EU like to rephrase their question?
>> EUROPEAN UNION: Yes, of course, thank you, Mr. Chairman.
The question concerned Article 9, paragraph 2, so the Article that's
dealing with the relation between -- between technological protection
measures and the application of limitations exceptions. And in this
context, we were asking -- in the context of Article 3, paragraph 1 of
this proposal which sets a principle that the protection granted under
this treaty does not extend to the underlying content, we were
wondering why is there a reference in Article 9, paragraph 2, to the
protection of the work being broadcast? I hope this clarifies our
>> CHAIR: South Africa.
>> SOUTH AFRICA: Thank you, Chair.
We actually missed reference to Article 3 so we did not quite
understand the question when you initially put it and now we document
It's a case of that yes, it's the signal we are seeking to protect.
But if we have to look at the cases under the sdo mess particular laws
where persons would say that you are not entitled for your broadcast
signal to be protected, it is purely because of the programme content
being carried on said broadcast.
For example, they would say perhaps you are not protected because the
work that is there is in the public domain. It would never be said
that you are not protected because your broadcasting signal is in the
public domain; it would be because of the content carried.
Then we noted it would be the protection of the work being broadcast
would be one of the reasons they would say your TPM in respect of the
signal should be overcome. I think that's the reason we have put it
Because if it's simply the broadcast, there are no laws which indicate
the broadcast itself should be ever overcome. It is always about the
programme content that is carried on that broadcast signal.
>> CHAIR: Iran has the floor.
>> IRAN: Thank you, Mr. Chairman.
I think I understood the concern raised by our distinguished
colleagues from the EU. But I want to say that this concern could be
raised for limitation and exceptions also.
It seems to me that according to paragraph 2 of Article 1, that can
answer, seems to me that can answer this concern as it says protection
granted under this treaty shall leave intact and shall in no way
affect the protection of copyright or related rights in subject matter
incorporated in broadcast signals."

Thank you very much.
>> CHAIR: I call on Ecuador.
>> ECUADOR: Thank you, Mr. Chairman.
Just to ask whether the delegate from South Africa could develop
further the explanation he just gave regarding the reference of the
scope of paragraph 2 of Article 9 to the extent, and then in the light
of the explanation he gave, it wasn't quite clear to me whether he --
they are allowing the countries to circumvent the TPMs as regards the
protection of the right of the broadcasting organisation.
So are they allowing for circumvention?
>> CHAIR: Thank you.
Would South Africa like to answer the concerns expressed by Ecuador?
>> SOUTH AFRICA: Article 9-1 indicates that the contracting parties are obliged to provide adequate legal protection against the circumvention of effective technological measures used by Broadcasting Organisations. So that is your starting point.
As we are aware, however, as people indicate, the technological
protection measures so implemented may prevent them from accessing
content which under copyright law they are entitled to access. Because
it may be in the public domain, for example.
So in two, we are saying where rights-holder fails as a first step,
fails, voluntarily, to try to attempt to address the access, whether
it be by an archive or some other right which is allowed under the
limitations and exceptions, then it may look to the state at how to
remedy this. That is what 2 is saying, not necessarily saying that the
individuals themselves will now circumvent; it's saying the state
first gives the rights-holder the opportunity voluntary to address
this and if it fails to do so, the state, contracting party itself
would look at ways how to ensure that the legal protections they are
giving in 1 do not adversely impact upon those rights or limitations
and exceptions it's given in terms of material.
That's the purpose of 2.
>> CHAIR: Thank you, sir.
Any other comments or questions on Article 9? That any delegation
would like to make or ask? If there are no further comments, then we
move on to Article 10. Article 10. Comments, questions for the
sponsors of this text?
Article 10.
Article 11. Comments? Article 11.
I would like to thank the delegations of South Africa and Mexico,
first of all, for having submitted this document which has been
extremely useful for broadcasting, and I would also like to thank
South Africa and Mexico for their readiness in having answers to each
and every one of the concerns raised on the document that they were
kind enough to submit to us which is 23-6 of this committee.
Mexico has the floor.
>> MEXICO: Thank you, Mr. Chairman. To proceed with this work, and this is why we would like to thank each and every one of the delegation that is have made comments, we could propose a working programme if you allow me to do so, if the South African delegation allows me to do so, to conclude in a timely manner sxin view of the comments which have been made and which could be made once each delegation has consulted back with their capitals for the comments that they could make in a certain term, a certain deadline, and that those comments could be received through the Secretariat of WIPO to convey these comments so that in turn they can be sent to both delegations to be reviewed and to be able to prepare a document incorporating the proposal, suggestions and comments which have been made in this plenary and during that time this would be a proposal to work on this document in the future.
Thank you, sir.
>> CHAIR: Thank you.
South Africa has the floor.
>> SOUTH AFRICA: Mr. Chairperson, equally South Africa would like to thank all delegates who made comments and posed questions on this draft document which we hope will take our discussions forward.
We would really like to endorse these suggestions made by Mexico on
the way forward because we feel it is the way in which we can move on
I hope the involvement of the Secretariat will ensure the process is
transparent and in the way that has got credibility and so forth.
So we really want to endorse the proposal made by Mexico.
>> CHAIR: Thank you, South Africa.
Right. If there are no further comments regarding the proposal made by
Mexico, endorsed by India -- sorry -- India has the floor first. You
have the floor, India.
>> INDIA: Mr. Chairman, the Indian delegation would like to appreciate the distinguished delegations of South Africa and Mexico in presenting the paper and especially the distinguished delegation of South Africa in discussing and clarifying the few important doubts which made us as to move forward and we would like to retain the right to go back to India and hold a stakeholder discussion and discuss this document and take the necessary approach and come back for more useful suggestions to move forward in the next SCCR.
Thank you very much.
>> CHAIR: Japan has the floor.
>> JAPAN: Japan understands the -- is not to include it in the proposal submitted by South Africa and Mexico. It is correct.
>> CHAIR: Thank you, Japan.
Would Mexico or South Africa like to respond to Japan's question? This
is something.
>> MEXICO: This is something, thank you, Mr. Chairman. As regards Japan's question, this is something which we are reviewing now and we are open to any comment, of course, as was said right at the beginning of the discussion. What we seek is that the Broadcasting Organisations enjoy any legitimacy to initiate legal action against illegal use in any platform and principle but we would be open for any comments irrespective of what has been discussed today in plenary. Particularly this is during the period where people can submit comments and to request that in a specific manner they could make a draft proposal accompanied by a brief explanation to this effect and this would really help us to draw up the document.
>> CHAIR: Thank you, South Africa, and thank you, Mexico, for their readiness to answer and as regards to comments made, I would like to point out that on Wednesday, 29th of February at 12:00 as a deadline for those delegations who would like to send out comments on this comment -- on this proposed draft from Mexico and South Africa, so they may do so by the 29th of February.
Let's hope these will be specific comments as requested. Paragraph.
(Not shoe has the floor.
>> Because you said the 29th as the deadline date, that's the date we sent the questions or
( EU)
But not the last, last deadline date because we will continue
discussing these issues in the forthcoming SCCR, the European Union
and its member states will review the proposals and might have
comments before or after the deadline date you have given us and you
would be quite sure the delegations of South Africa and Mexico might
wish to discuss them with us also if it goes beyond the deadline date
of the 29th of February.
>> CHAIR: Well, as a deadline date, the last date that the Secretariat could receive these comments, of course comments are open, that is also true, but we have to have an order so the Secretariat might receive these comments.
It's simply a question of order, tidyness, of course you can comment
on these questions and recomment on these questions in the future. But
the date that I am giving you as a deadline date is simply to send out
the documents to the Secretariat, the Secretariat in an orderly manner
would then send them on to South Africa and Mexico so that they can be
taken care of and we can take care of the concerns of all countries
who would like to take part in this exercise.
Thank you. Any other comment on this? United States?
>> UNITED STATES OF AMERICA: Thank you, Mr. Chairman.
We understand that that is the same date for submission of comments on
our Working Document for Libraries. Is that correct? If that is
correct, Mr. Chairman, we would recommend that given the probable
timing of the SCCR for next year, it would be just as well to pick the
last date of March. It won't matter to the Secretariat since they will
be receiving a massive slew, hopefully, from us of lots of comments on
our work on libraries and so they will be in no rush to receive all
our work on broadcasting, too, on the same day.
>> CHAIR: Thank you, thank you, sir, delegate from the United States.
Well, I would like to review the dates with the Secretariat, the dates
to make comments, and then we'll inform you on Friday what. What is
sure is the date of Wednesday, 29th of February at 12:00 for comments
on libraries, and we will try to find an easy date also, suitable
date, rather, for the topic of broadcasting.
I call on Ecuador.
>> ECUADOR: Mr. Chairman, it was just to support the suggestion, the very wise suggestion from the American delegation, but I think you have already taken it into account. Thank you, sir.
>> CHAIR: I call on Brazil.
>> BRAZIL: Thank you, Mr. Chairman. I would like to have clarification on the status of the document provided by South Africa and Mexico.
I understand that it would be included at the documents that were
listed in the work programme that was adopted in the last session of
the SCCR. I mean, the discussions on Broadcasting Organisations we
would -- you continue, and would be based on the documents that were
provided in this programme that includes, for example, SCCR-15-2 and
the document provided by South Africa and Mexico would be part of this
list of the documents.
Thank you.
>> CHAIR: Yes, you're quite right, your interpretation is right, as always.
South Africa has the floor.
>> SOUTH AFRICA: Thank you, Mr. Chairman. I just wanted to
(Very low audio)
Our understanding of the proposal from Brazil. What I'm looking at is
the document of the last conclusion which was specifically forecast on
the informal consultations that were going to be held. So the
documents outlined there were in relation to the consultations, not
per se the work programs of this committee.
Unless I am incorrect.
>> CHAIR: I would like the Secretariat to clear up this issue for us.
Thank you.
>> SECRETARIAT: I might advise that we should not or cannot, I'm not sure, exclude any document unless you, the member states, agree to exclude documents before the consultations, during the consultation and after the discussions and since the consultation on Saturday I have heard member states making the point that 15-2-1 and the Japanese proposal and the Canadian proposal et cetera are still documents on the table.
So that's why the answer to the Brazilian question was si and I would
have to say si as well, they are all on the table. I would hope,
however, as I said on Saturday, that we could sooner rather than later
move towards the single document.
I would have hoped that during this session of the SCCR we could have
taken all the views and issues and texts from other documents and move
into this Mexico-South Africa document so that we move forward at the
next session of the SCCR with the single document.
If we don't achieve that during this SCCR, I hope we can achieve that
at the next SCCR. The it makes good sense to move towards one document
because if we are to end these negotiations, you have to end on one
document. Okay?
>> CHAIR: Thank you very much, Secretariat.
Any other comment? Fine. If the distinguished delegations have no
further comments to make, I do have several comments. The first is an
announcement as to inform the NGOs that tomorrow and the day after,
they may go to the (?) Of the organisation but they won't be able to
come into this room because because here we will hold the preparatory
committee for a diplomatic conference. Now, irrespective of what your
ID states or not, NGOs may have access to the building but not to this
room while the preparatory committee of the diplomatic conference is
in session.
Then on the other hand, I would like to extend that invitation to all
of you so that you accompany us today at the end of this afternoon, at
the end of this session, that you go to the new building, so that's
what it's known as "The new building," I don't know if it has a name
to date but for the time being it's the new building. An annex to this
building so as to come with us and take part in the reception that
Mexico is giving to be able to taste tech tequila so you can taste the
different tastes of one of the most popular drinks in Mexico and we
can accompany the Mexican tradition on this in 2006 tequila was part
of international heritage of humanity and I would also like to
announce that since yesterday, the mariachi, in other words, the
musicians of Mexican music are also considered as heritage of
humanity, human tear yan heritage since yesterday oops so I would like
to you participate in this event.
There will not just be tequila, there will be other drinks as well and
you can taste authentic Mexican food. I think we can taste it, they
won't be huge amounts but we can taste, it's a reception that is
offered with a lot of warmth from Mexico for all of you. On the other
hand, I would also like to announce tomorrow and the day after, we
will undertake or have the sessions of the preparatory committee for
the diplomatic conference so the SCCR, standing copy ti on copyrights
and related rights will suspend its session until Friday at 10:00 AM
Would anybody like to make an announcement? European Union has the floor.
>> EUROPEAN UNION: Thank you, Mr. Chair. The EU will meet tomorrow at 9:00 in Room B, tomorrow at 9:00 in Room B. Thank you.
>> CHAIR: United States has the floor.
>> UNITED STATES OF AMERICA: Thank you, chairman. Group B will meet in Room B tomorrow morning at 9:30. Thank you. .
>> CHAIR: Thank you. Panama has the floor. Panama.
>> PANAMA: Thank you, Mr. Chairman. Just to announce that GRULAC has a meeting tomorrow morning at 9:00 in the ubingen Hagan.
>> CHAIR: Any further announcements? If there are none, I hope that you will have a nice drink and that you will have a glass of tequila in your hand --
(Lost audio)

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