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Quick Look at the Comments on the New Draft Non Paper

If you’re looking for (Rabelais like) on https://www.kcnslaw.com/ “substantive marrow” in the 15 member states comments submitted in response to the Chair’s new Draft non-paper, here is a quick look:

7 COUNTRIES SUPPORT A SIGNAL THEFT APPROACH:
Brazil, Egypt, India, Indonesia, Iran, China, and, well, the US, in “some ways” …

4 COUNTRIES ARE NOT SUPPORTING A SIGNAL THEFT APPROACH:
Korea (but not opposed to optional approach), EC (Not sure how options would work, rights are more appropriate), Japan (More rights is better), Colombia (would like a wider scope).

4 ARE NOT SAYING MUCH ABOUT THE 2 APPROACHES AT THIS TIME:
Chile: wants defense of competition back in the draft, additions to the limitations and exceptions, and is concerned about TPMs
Canada: … but maintains the position of allowing opt-out or reservation on retransmission as usual.
Australia: …nothing on a policy issue but precise rewording regarding “public” (not “general”) or persons with disabilities instead of disabled etc.
Switzerland does not like the preamble and is confused by the meaning of protection and promotion of cultural diversity and the apparent “mistrust” some might have toward broadcasters and cable casters.

All submissions to WIPO are here.

More details from my reading:

COUNTRIES SUPPORTING SIGNAL THEFT APPROACH

USA: Preamble: No to cultural diversity. Add for copyright owners rights
Art 3 Scope: fix “mere retransmission” (move to Art 6)
Art 4 Relation to Other treaties: Add non-derogation clause
Art 5 Definitions: Clarify the exclusion of home network (twice). Add “initial” fixation to comply with Mandate
Art 6 Beneficiaries: Should not override contractual agreements (“Leagues’ clause”)
Art 7 National Treatment: Supports K the Berne Model. Delete 7(2) not needed and potential burdens
Art 8 Protection: Delete 8 (1) (ii) and (iii) to comply with signal only mandate and exclude home network (again “Intel clause”))
Art 10 Encryption: Need to mimic TPMs in WCT and WPPT
Art 11 Means of implementation: Add a private right of action
Art 12 L &E: Delete 12 (3), the “list”.
Art 13 Term: Question re 20 years for signal (mandate?)
Art 14 Formalities: Delete, the US has “formalities”.
Note: Nothing on ISPs’ liability issues

BRAZIL: Preamble unduly move of 3 articles (2,3 and 4) into the preamble
Art 2 (2) Object of Protection: Not consistent with Brazil’s legislation that treats cable casting and broadcasting differently.
Art 4 Relation to Other Treaties: Delete (2) and (3). Limit application so no encroachment on the public domain nor on copyrights incorporated.
Art 5 Definitions: reaffirm reservation
Art 7 National Treatment: Support K (the Berne Model). J not acceptable.
Art 8 Protection: exclusive right in 8(1) not consistent with GA decision. Delete.
“by any means” also not in agreement and would be detrimental to consensus.
Art 10 Encryption: Not consistent with signal-based approach. Abusive when no “unauthorized activity”.
Art 11 Means of Implementations: Overly broad and impinge on member countries’ legal system and practice. Propose TRIPS Art 1.1
Art 12 L & E: Replace may by shall to promote security and predictable. Delete 12(2) the importation of the 3 step test designed for copyrights, not signal. Add to 12 (3) libraries and archives.
Art 13 Term: Delete. No term for a signal.
Art 17 Enforcement: Delete, should be left to national jurisdictions.

CHINA Support for narrow and specific protection against signal theft.
Art 6 Beneficiaries: Prefer to add an alternative to set a condition that organization be in the same country
Art 8 Protection: Question on 8(i). Does “by any means” include over computer networks? Also does “deferred retransmission” cover “communication to the public” and “transmission following fixation” “making available to the public”?
Art 10 Encryption: Amend (i) add “for the purpose of retransmitting the broadcast
Art 11 Means of implementation: Delete

EGYPT Preamble: After rights, add “on their signals” (3 times)
Art 1 Objective: change to “broadcasted signals”
Art 2 Object: change to “broadcasted signals”
Art 3 Scope: at (iii) re net casting add “any transmission which consists a violation to other copyrights [?]
Art 5 Definitions: delete “electronically generated”

INDONESIA
Art 1 Objective: the wording will lead to a broader scope of use than the GA’s mandate to protect the signal from theft or piracy
Art 2 Object of Protection: prefer narrow and traditional definition, not including cable casting organizations
Art 5 Definitions: Delete “by satellite” this clause will open to broader interpretation. Same for (d) “cablecast”.
Art 7 National treatment: Prefer alternative J (WPPT) or VV (TRIPS). Do not understand para (2)
Art 8 Protection: clauses are extensions or broadening of the scope of the agreed objectives.
Art 11 Means of implementation: Leave this to national legislation
Art 13 Term: as we adopt signal based it is not relevant.
Art 14 Formalities: imitating copyright principle not a basis for signal-based.
Art 16 Application in Time: “again, there is no point in returning to right-based approach”.

INDIA: Preamble: Treaty is for the “protection” of broadcasting organizations.
Art 1 Objective. Add “according to signal-based approach”
Art 2 Object of Protection: protection is limited to the extent of rights acquired or owned by the broadcasting organizations.
Art 3 Scope: It is not clear whether this clause will also cover transmission simultaneous or deferred of broadcast over a computer network.
Art 4 Relation to other treaties: again protection shall be afforded to the extent necessary to enjoy rights acquired or owned by the broadcasting organizations without impinging on the rights of the original rights holders.
Art 5 Definitions. Make definition consistent with signal-based approach mandated by GA. Also, exclude “over a computer network”. No need for “physical support” since communication to the public is not a prohibited activity.
Art 6 Beneficiaries: both conditions need to be satisfied to be treated as a national of another contracting party.
Art 8 Protection. It Covers 3 types of activities (retransmission, fixation, and reproduction) that go beyond protecting signals
Art 10 Encryption. Same effects as TPMs. Potential to prevent dual use of technology. Remove clause.
Art 11 means of implementation: remove (i) since it is the same as providing exclusive rights and this is already an option under 8(1)
Art 13 Term. Needed only if fixation and reproduction are agreed to be protected.

IRAN
Alternatives in Art on National treatment may neutralize the optional view of the chair on rights.
Scope: since SCCR 14 decision to limit to broadcasting and cable casting in the traditional sense. Webcasting and simulcasting to be dealt with in a separate process. All references to a computer network, or “by any means” should be removed.
The object of protection: see protection against signal piracy. Exclude pre-broadcasting signals since they are not assembled or scheduled.

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COUNTRIES SUPPORTING EXCLUSIVE RIGHTS APPROACH:

EC: Preamble: Remove 4 (competition), 5 (Cultural Diversity) and 6 (abuse)
Art 1 Objectives: clearly include “grant of exclusive rights”
Art 3 Scope: Clarification on “mere retransmission”. Include DSL and IP TV (to limit the exclusion of webcasting)
Art 4 Relation to Other Treaties: clarify relation with Rome, delete 4 (3)
Art 5 Definitions: Need to clarify the definition of “program” and “broadcast”
Art 7 National Treatment: Oppose K and support J (WPPT model)
Art 8 Protection of broadcasts: reiterate exclusive rights more appropriate. Not convinced by “patchwork solutions”
Art 10 Encryption: Too narrow, need TPMs for future technological developments
Art 12 L &E: Delete 3 (the non-exhaustive list). Clarify add of “legal deposit requirements”
Art 16 Application in Time: how would that work for countries not providing exclusive rights (as in 8(2)?
Art 17 Provisions on Enforcement of Rights: Again, how would that work if no exclusive rights as in 8(2)?

JAPAN: Preamble: do not like para 4 (competition). Insert “easier access to knowledge”
Art 3 Scope: Is internet protocol considered like webcasting and thus excluded?
Art 7 National treatment: Supports J (WPPT model)
Art 8(1) Protection: Insert 3 more rights (making available original and copies, to members of the public and communication against fee). Delete 8(2) which is the alternative to rights!
Art 10 Encryption: reinforce
Art 11 Means of implementation: delete
Art 13 Term: Should be 50 years

KOREA General: Suggest WPPT model. Support rights but do not oppose the optional approach.
Art 5 Definitions: “communications to the public” is not necessary
Art 7 National Treatment: Support J (WPPT model). 7(2) is contrary to logic as is art 9 and 10
Art 8 Protection: suggest more logical language for “retransmission or deferred transmission”
Art 10 Encryption: WPPT language
Art 13 Term: Support 50 years for balance with related right holders

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