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Expert Report of Dr. Mihaly Ficsor, March 6, 2013-OTT_LAW-35392_1

Expert Report of Dr. Mihaly Ficsor, March 6, 2013-OTT_LAW-35392_1

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Dr. Mihály FicsorMember and Honorary President of theHungarian Copyright Experts Council,former Assistant Director General of WIPOceeca@t-online.hu6 March 2013Expert opinion on the international norms on the right of making available tothe public and on its application in countries where it has been implementedI. Introduction
This expert opinion has been prepared at the request of the Society of Composers, Authorsand Music Publishers of Canada (SOCAN).SOCAN has asked me to answer the following four questions in this expert opinion:Question 1: What was the intention of the drafters of the provisions on the makingavailable right in the WIPO Copyright Treaty (WCT) and the WIPO Performances andPhonograms Treaty (WPPT) and how this is reflected in the Treaties?Question 2: What influence, if any, the nature/purpose of subsequent transmission(streaming or downloading) is supposed to have on the completion of the act of making available covered by this right?Question 3: How has the making available right been implemented in other countries?Question 4: How is the making available right in musical works licensed in othercountries, and how the remuneration is distributed depending on the nature/purposeof the transmission (streaming or downloading)?SOCAN has made available to me certain documents concerning recent legislative and caselaw developments in Canada (which I otherwise had followed with interest also before).Thus, I may take into account for my opinion (i) the decision of Copyright Board adopted on18 October 2007, approving
Tariff No. 22.A (Internet 
Online Music Services) 1996-2006
; (ii) the above-mentioned rulings of the Supreme Court of Canada
adopted stillbefore the entry into force of the CMA
in which the Court found that the right of communication to the public is not applicable in the case of download online services; (iii)the decision of the Copyright Board adopted on 5 October 2012 (that is, still before theentry into force of the CMA) onSOCAN
Tariff 22.A (Internet 
Online Music Services), 2007-2010 and CSI Online Music Services Tariff, 2008-2010
in accordance with the said ruling of the Supreme Court.I declare that, although it is SOCAN which has requested me to prepare this opinion, I do notrepresent SOCAN (or any other parties in the proceeding in front of the Copyright Board) in
the examination procedure and I submit my expert opinion in accordance with the relevantfacts to my best knowledge and my professional persuasion on the issues involved.
II. Relevant professional experience
From May 1985 to January 1999, I served as Director, and, from September 1993, asAssistant Director General of WIPO in charge of copyright. My tasks included the preparationof documents for, and acting as the head of the Secretariat at, meetings on various copyrightissues; advising governments and legislative bodies on the interpretation of internationalcopyright norms; proposing, and commenting on, draft legislation (in particular, concerningthe interpretation and implementation of the Berne Convention, the Rome Convention, theWCT and the WPPT); and the representation of the Organization at meetings of otherintergovernmental and non-governmental organizations.In this capacity, I was the main responsible of the preparation of the two so-
called “Internet
;” the WCT and the WPPT
. I participated in all the Committee meetings, in all worldforums on the issues of digital technology, in all the regional consultations, and in allsessions of the Diplomatic Conference adopting the Treaties (of which I was the Secretary),including all the informal consultations where certain provisions were negotiated.
 As the key representative of WIPO in the preparatory work and in the negotiations, therewere several issues where I had to act as a catalyst to forge some reasonable and generallyacceptable compromise solutions. The legal characterization of 
the applicable exclusiveright or rights for
the acts of including works and objects of related rights in the Internetfor interactive use (for any kind of use by those who may get access to them) was one of these issues. In fact, it seemed to be the biggest issue as potential obstacle to agreementbetween such key negotiating parties as the United States and the European Community.This thorny problem was solved through the so-
called “umbrella solution” serving as a basis
of the recognition of the right of (interactive) making available to the public which had beenworked out by me and offered to the negotiating parties in the way described below.After the Diplomatic Conference, still in the position of Assistant Director General of WIPOuntil my retirement at the end of 1998, I played active role in the promotion of ratificationof, accession to and due implementation of the two Treaties. Also since my retirement I havespoken about the Treaties, including their provisions on the right of making available to thepublic, at a great number of meetings around the world and have published several articlesand books on them.
For a detailed description of the preparation of the two Treaties (as regards the provisions on the makingavailable right),
Ficsor: „
The Law of Copyright and the Internet 
The 1996 WIPO Treaties, their Interpretation and Implementation
,” Oxfo
rd University Press, 2002 (hereinafter: Ficsor, Oxford (pp. 145-254).
At the request of the Organization, I have prepared the WIPO Guides to the WCT and theWPPT published in 2003
and I am the author of one of the two basic treatises on the twoTreaties published by Oxford University Press in 2002.
 A short biography is attached to this opinion also reflecting my other professional activities,of which I only mention here that (i) before joining WIPO, between 1976 and 1985, I was theDirector General of the Hungarian Copyright Bureau (and in that capacity, I represented mycountry at the copyright meetings of, WIPO and Unesco, and chaired several of them); (ii) Ihave had different roles in WTO dispute resolution procedures;
inter alia
, I was a member of the WTO panel which, in 2000, interpreted for the first time the three-step test for theapplication of IP exceptions; (iii) I was the Chairman of the Working Group which preparedthe first draft of the Unesco Convention for the Protection and Promotion of the Diversity of Cultural Expressions finally adopted in 2007; and (iv) in my country, after my retirementfrom WIPO, since 2000 I have been a member of the Board of the Copyright Experts Council
 of which, until 2011 I was also the President and since then I have been the HonoraryPresident.
“Executive summary” –
 short answers to the questions
Question 1:
What was the intention of the drafters of the provisions on the making availableright in the WIPO Copyright Treaty (WCT) and the WIPO Performances and PhonogramsTreaty (WPPT) and how it is reflected in the Treaties?
The intention
which is duly reflected in the text of the relevant provisions of the two Treaties and which is
also confirmed by their “preparatory work”
was toprovide for an exclusive right in order to control the decisive act of uploading andmaking accessible for interactive use of protected works and objects of related rightson the Internet irrespective of the nature/purpose of the transmissions that may takeplace in the course of such use. The relevant provisions of the WCT and the WPPTwere adopted by the 1996 Diplomatic Conference on the basis of a unanimousunderstanding that the making available right is applicable both where the resultinginteractive use takes the form of transmissions only allowing perception of and wherethey may result in downloading of the works (performances and/or phonograms) thusmade available.
Mihaly Ficsor: „
Guide to the Copyright and Related Rights Treaties Administered by WIPO
,”WIPO publication
No. 891 (E), 2003, (later also published by WIPO in translation into French (No. 891(F)) and into other officiallanguages of WIPO) (hereinafter: WIPO Guide).
note 3 above.
The 150-member Council, its 15-member Board and its President are appointed by the Minister of Justice, andthe Hungarian Intellectual Property Office fulfills the role of its secretariat. It acts as an advisory body ongovernmental copyright policy issues; provides experts opinions for the courts, prosecutor offices and otherauthorities; and functions as a mediation forum in copyright disputes, in particular between collecting societiesand users of works and objects of related rights
as regulated in Articles 101 to 105 of the Hungarian CopyrightAct (Act LXXVI of 1999 amended several times).

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