IN THIS DOCUMENT:

Protection of Audiovisual Performances

Protection of Databases

Protection of the Rights of Broadcasting Organizations

Comment:

Report from the second session of the Standing Committee on Copyright and Related Rights, Geneva May 4-11, 1999.

The deliberations of the Committee took place from Tuesday 4^th to Thursday 6^th. The Committee will reconvene on Tuesday 11^th at 4 p.m. in order to adopt the (official) report of the meeting.

The issues to be considered by the Standing Committee at this meeting were:

• Protection of Audiovisual Performances
• Protection of Databases
• Protection of the Rights of Broadcasting Organizations

Protection of Audiovisual Performances

Progress was made on technical issues. Several national delegations expressed views, and the different suggestions did not provoke much discussion.

The main discussion, and quite heated indeed, was concentrated between the non-governmental organizations representing producers and performers on the issues of

• broadcast and communications to the public rights and
• contractual arrangements / transfer of rights.

I understood from veteran participants, that not much new was said. Old positions were mostly reiterated. On the questions of contractual arrangements / transfer of rights, however, FIA (Federation Internationale des Acteurs) had distributed a proposal, which the chair and several national delegations regarded as being so interesting that FIA was asked to comment on it before all the national delegations had spoken. (!)

FIA suggested that the new Instrument expressly recognises the possibility of a presumption of transfer, and in turn requires its recognition in other contracting parties which may themselves not chose such a system. However

• the transfer must be rebuttable
• it must be expressed in a written contract and state which rights are to be transferred
• the performer must receive remuneration
• rights for uses that do not yet exist cannot be presumed transferred
• the transfer can only apply to the exclusive rights provided in the Instrument and not to remuneration rights or moral rights
• the transfer applies with respect only to the entirety of the audiovisual work.

The conclusion was, that the issue will be put the agenda of the third session of the SCCR, in which only the following three items will be discussed

• rights of broadcasting and communications to the public
• national treatment
• contractual arrangements / transfer of rights.

Only members of the Standing Committee are invited to submit proposals.

Protection of Databases

The chairman (Jukka Liedes) summarised, that on the last meeting of the Standing Committee, it was decided to let the International Bureau

• prepare a study of the effects of a possible new treaty on the protection of databases on the economy, science and culture developments on especially developing countries,
• arrange regional conferences on the issue

National delegations were asked to report on developments in their countries.

The US delegation declared, that the government is now convinced, that a protection of non-original databases is necessary, and that new legislation is prepared in the House of Congress. The protection of non-original databases will not be under copyright, but will be based on the theory of misappropriation.

The EU delegation, backed by UK and the Balkan and Central European Countries, recommended a treaty for the protection of original and non-original databases.

All the other delegations who spoke were either neutral or negative to the idea of a treaty for the protection of databases, and especially of a sui generis protection of non-original databases.

The arguments were, that

• the regional conferences have not yet been held (the remaining will take place in June)
• the need for a sui generis protection of non-original databases has yet to be demonstrated
• the study on the possible economic, scientific and cultural effects has not been carried out
• conceptual clarification is necessary
• more time for consultation and deliberation is needed.

The non-governmental organizations, IPA, IFRRO, EIIA, backed the proposal for at database treaty. IIDA and AMJ were more hesitant, and ISCU opposed the idea

The arguments of IPA being the following

• databases are vital for development of a global information society
• vital for development of new information services in the private sector.
• there is no monopoly. Public sector data ought to be free
• folklore ought to be protected
• protection on the basis of sui generis or misappropriation is necessary for non-original databases
• there ought to be exceptions based on fair use principles
• the EU directive requires study of consequences of the directive, esp. if there has been abuse of dominant position.

IFRRO argued that regulations parallel to the EU directive have been in force in the Nordic countries since 1960/61, and that has not led to any problems.

EIIA argued that necessity of protection of non-original databases is reflected in the fact that enterprises in the database industry are seen to be moving to countries who grant protection. There is a need for exceptions. An exceptions clause should have a general form à la the Berne Convention, and be left for National Treatment to be filled out.

IIDA pointed out that the concept of "substantial" will be defined differently in industrialised and developing countries. Must be left for National Treatment.

AMJ Everybody needs access to databases. One should be careful not to make the world so that we cannot live in it.

ISCU recognised that database producers need to have their investments protected, but argued that the balance between producers' interests and the public interest is endangered. Science is a global enterprise and full and open access to information is essential. He recommended that the exceptions should be modelled in the spirit of the Berne Convention rather than the EU directive.

The Chair concluded that the subject matter of the protection of databases will be carried forward to the agenda of the third session of the Standing Committee.

Protection of the Rights of Broadcasting Organizations

The statements of the national delegations can be summarised that the process is still in its initial stages. There was a general agreement that there is a need for better protection, but it is at this stage not possible to comment on specific questions.

The interventions of the non-governmental organizations showed that there is still much work to be done in terms of defining the concepts. Especially it is still not clear what is a broadcast? One might specify that a mass communication to the public is a broadcast irrespective of the technology used. But when broadcasting organizations make their old programs available in a database to be accessed by the user at a place and time chosen by him, do we still talk of broadcasting? What shall we think of webcasting, i.e. broadcasting via the Internet? Should rather the rules for database protection apply?

The conclusion was that the issue of Protection of the Rights of Broadcasting Organisation will be carried forward to the agenda of the third session of the Standing Committee. Members of the Standing Committee are invited to submit proposals and/or views by August 15, 1999.

Comment:

At the next meeting of the Standing Committee there can therefore only be expected to be reports from national delegations on the results of the regional meetings. So far only European countries and US support the idea of a new instrument, whereas all the other countries are more or less hostile. I think it is significant that the International Bureau does not seem to be able to finish the report on the effects. It looks like they do not want to waste their resources on a "lost cause". If the next meeting does not indicate a change of views in at least some of the developing countries, I would not be surprised if the whole matter will be buried then.

The next meeting on the Standing Committee will be November 15-19, 1999.

Non-governmental or inter-governmental organizations are not invited to submit proposals, but they may write letters to members or distribute "room papers".

Harald v. Hielmcrone
10. May 1999