CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions
Special thanks to CIS intern, Amulya Purushothama for her research and writing on this subject. While Amulya was acknowledged as the co author in the actual submission itself, the blurb didn't say so and this has now been changed. Download the file of CIS submission here.
Introduction
This note analyses the differences in definitional clauses across six documents, the proposed Treaty on the Protection of Broadcasting Organisations [1] ("Broadcast Treaty"), the Proposal on the Draft Treaty on the Protection of Broadcasting Organization- The Proposal by the Delegation of South Africa[2] ("Proposal by South Africa"), The WIPO Copyright Treaty, 1996, the WIPO Performances and Phonograms Treaty,1996 ("WPPT"), the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 ("The Rome Convention"), and the Beijing Treaty on Audiovisual Performances, 2012 ("The Beijing Treaty")
The definitions for signal, broadcasting, broadcasting organization, retransmission, fixation, communication to the public and rights management information will be studied in detail as the definitions for these concepts has varied somewhat through the years. The rest of the definitions can be found in a detailed table that follows.
The argument here is simply that by subtly broadening the definition of certain terms, the broadcast treaty grants a higher level of protection to broadcasting organization, and that these protections could possibly extend to covering the content underlying the signals.
1. Signal
The proposed Broadcast Treaty defines a signal as an "electronically generated carrier consisting of sounds or images or sounds and images or representations thereof whether encrypted or not"[3], the alternative to this provision defines a signal as an "electronically generated carrier capable of transmitting a broadcast cablecast"[4]. The proposal by South Africa, on the other hand, defines a signal as "an electric current or electromagnetic field used to convey data". Clearly the definition in the Broadcast Treaty could be extended to cover the content underlying the signal and is not as technologically neutral as the alternative definitions.
2. Broadcasting
The proposed Broadcast Treaty defines broadcast as the "transmission of a signal by a broadcasting organization for reception by the public"[5], an alternative to this excludes signals sent over computer networks from the definition of a broadcast, [6] another alternative defines broadcasting as "the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof". This definition includes satellite transmission, wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent. Transmission over computer networks is excluded from this definition as well.[7] This mirrors definitions of broadcasting set out in the WPPT[8], the Rome Convention[9] and the Beijing Treaty[10]. The proposal by South Africa defines "broadcasting" as the process whereby "the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications" and "broadcast" is construed accordingly. Clearly the proposed definition under the Broadcast Treaty is less technologically neutral as compared to the proposal by South Africa. The proposed definition under the Broadcast Treaty also does not limit the protection granted by the treaty to the signal and unlike the proposal by South Africa does not ensure that definition excludes the underlying content being transmitted by the signal.
3. Broadcasting Organisations
The proposed Broadcast Treaty defines a broadcasting organization as "the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal." Or alternatively[11], considers broadcasting organisations and cablecasting organisations as one and the same and defines them as "the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission." The proposal by South Africa defines a broadcasting organization as the "legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds". Clearly, in stark contrast to the proposed Broadcast Treaty, the proposal by South Africa ensures that cablecasting organisations aren't included within the definition of broadcasting organisations, this definition is also by far the most technologically neutral and ensures adequate protection for broadcasting organisations on all broadcasting platforms.
4. Retransmission
The proposed Broadcast Treaty defines "retransmission" as "the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed";[12] or alternatively defines rebroadcast as "the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization"; even simultaneous transmission of a rebroadcast is understood to be a rebroadcast under this definition. [13]
Under a further alternative[14] retransmission is defined as "the simultaneous transmission for the reception by the public by any means of a transmission … by any other person than the original broadcasting or cablecasting organization" this definition of retransmission also includes simultaneous transmission of a retransmission.
To contrast to this, the Rome convention defines rebroadcasting as the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.[15] Clearly a higher level of protection is granted to broadcasting organisations under the proposed Broadcast Treaty, one that was so far not guaranteed to them by international conventions.
5. Fixation
The proposed Broadcast Treaty defines fixation as "the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device" [16] [17],the WPPT defines fixation as "the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device";[18] and the Beijing Treaty defines audiovisual fixation as "the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device".[19] In this capacity, the definitions proposed in the Broadcast Treaty seem to be in line with the earlier international treaties.
6. Communication to the Public
The proposed Broadcast Treaty defines communication to the public as "any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform".[20]or alternatively as "making the transmissions … audible or visible or audible and visible in places accessible to the public.[21] Whereas the WPPT defined communication to the public as "the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram… including making the sounds or representations of sounds fixed in a phonogram audible to the public."[22] The Beijing Treaty defined communication to the public as "the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audio visual fixation… "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public." [23] Clearly the definition has been broadened under the proposed treaty, which makes it plausible for the protection granted to broadcasters to cover the content underlying the signal as well.
7. Rights Management Information
The proposed Broadcast Treaty defines rights management information as "information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6."[24] The WIPO Copyright Treaty, 1996, defines it as "information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public."[25]
The WPPT extends the same definition to performances and performers as it defines rights management information as "information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public."[26] And the Beijing Treaty defines rights management information as "information which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation."[27]
Clearly the current treaty extends the protection offered to rights management information to pre-broadcasting signals in addition to broadcast signals, this represents a higher level of protection granted to broadcasters under the proposed Broadcast Treaty.
Detailed Table on Definitions in International Treaties
|
Definition |
Broadcast Treaty 27/2 rev |
Broadcast Treaty Proposal by South Africa WIPO/CR/Consult/GE/11/2/2 |
WIPO Copyright Treaty, 1996 |
WIPO Performances and Phonograms Treaty,1996 |
Rome Convention, 1961 |
Beijing Treaty on Audiovisual Performances, 2012 |
|
Signal |
Article 5, Alternative A, 5(a): "signal" is an electronically generated carrier consisting of sounds or images or sounds and images or representations thereof, whether encrypted or not; Alternative to (a), "signal" means an electronically generated carrier capable of transmitting a broadcast or cablecast |
"signal" is an electric current or electromagnetic field used to convey data; |
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|
Broadcast |
Article 5, Alternative A : Article 5 (b): "broadcast" means the transmission of a signal by or on behalf of a broadcasting organization for reception by the public; Alternative to (b): "broadcast" means the transmission of a set of electronically generated signals by wireless and carrying a specific program for reception by the general public, broadcast shall not be understood as including transmission of such a set of signals over computer networks. Alternative B for Article 5, Article 5 (a) "broadcasting" means the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting". Wireless transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent. "broadcasting" shall not be understood as including transmissions over computer networks |
"broadcasting" means the process whereby the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications and "broadcast" is construed accordingly" |
Article 2(f): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent; |
Article 3 (f): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds; |
Article 2(c): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent. |
|
|
Broadcasting Organization |
Article 5, Alternative A to Article 5 (c): "broadcasting organization" means the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal. Alternative B for Article 5, Article 5 (c): "broadcasting organization" and "cablecasting organization" mean the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission. |
"broadcasting organization" means the legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds. |
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|
Retransmission |
Article 5, Alternative A to Article 5(d): "retransmission" means the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed; Alternative to (d) rebroadcast means the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization; simultaneous transmission of a rebroadcast shall be understood as well to be a rebroadcast. Alternative B for Article 5, Article 5 (d): "retransmission" means the simultaneous transmission for the reception by the public by any means of a transmission referred to in provisions (a) or (b) of this article by any other person than the original broadcasting or cablecasting organization; simultaneous transmission of a retransmission shall be understood as well to mean a retransmission. |
Article 3(g): "rebroadcasting" means the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization. |
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|
Fixation |
Article 5, Alternative A to Article 5 (e) "fixation" means the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device Alternative B for Article 5, Article 5 (f) "fixation" means the embodiment of sounds or of images or of images and sounds or of the representations thereof from which they can be perceived, reproduced or communicated through a device. |
Article 2(c): "fixation" means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device; |
Article 2(b): "audiovisual fixation" means the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device. |
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|
Communication to the Public |
Article 5, Alternative A to Article 5 (f): "communication to the public" means any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform. Alternative B for Article 5, Article 5 (e): "communication to the public" means making the transmissions referred to in provisions (a), (b) or (d) of this article audible or visible or audible and visible in places accessible to the public. |
Article 2(g): "communication to the public" of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of Article 15, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public. |
Article 2(d): "Communication to the public of a performance means the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audiovisual fixation. For the purposes of Article 11, "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public. |
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|
Pre-broadcast Signal |
Article 5, Alternative A to Article 5 (g): "pre broadcast signal" means a transmission prior to broadcast that a broadcasting organization intends to include in its program schedule, which is not intended for direct reception by the public |
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|
Rights Management Information |
Article 5, Alternative A to Article 5 (h) "rights management information" means information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6. |
Article 12(2): "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public |
Article 19(2): "rights management information" means information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public. |
Article 16(2): "rights management information" which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation. |
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|
Transmission |
Article 5, Alternative A to Article 5 (i), "transmission" means the sending for reception by the public of visual images sounds or representations thereof by the way of an electronic carrier |
"electronic communications" means the emission, transmission or reception of sounds , visual images or other visible signals whether with or without accompanying sounds by means of magnetism, radio or other electromagnetic waves, optical electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct. |
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|
Program |
Article 5, Alternative A to Article 5 , alternative to (j), "program" means a discreet package of one or more works protected by copyright or related rights in the form of live or recorded material consisting of images, sounds or both. |
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|
Cablecast |
Article 5, Alternative A to Article 5 (k) "cablecast" means the same as "broadcast" when the transmission is by wire and excluding transmission by satellite or over computer networks. Alternative B for Article 5, Article 5 (b): "cablecasting" means the transmission by wire for the reception by the public of sounds or of images or of images and sounds or of the representations thereof. Transmission by wire of encrypted signals is "cablecasting" where the means for decrypting are provided to the public by the cablecasting organization or with its consent. "cablecasting" shall not be understood as including transmissions over computer networks. |
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Performers |
Article 2(a) :"performers" are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore |
Article 3(a): "performers" means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works; |
Article 2(a): "performers" are actors, singers, musicians, dancers, and other persons, who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore. |
[1] See Working Document for a Treaty on the Protection of Broadcasting Organisations, Prepared by the Secretariat, Standing Committee on Copyright and Related Rights, 27th Session, Geneva, April 28- May 2, 2014, SCCR/27/2/REV. (Hereafter The Broadcast Treaty.)
[2] The Proposal on the Draft Treaty on the Protection of Broadcasting Organisations, Proposal by the Delegation of South Africa, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14 and 15, 2011, WIPO/CR/Consult/Ge/11/2/2. (Hereafter, The South African Proposal)
[3] Article 5, Alternative A, 5(a), the Broadcast Treaty.
[4] Article 5, Alternative A, Alternative to (a), The Broadcast Treaty.
[5] Article 5, Alternative A, Article 5 (b), The Broadcast Treaty.
[6] Article 5, Alternative A, Alternative to (b), The Broadcast Treaty.
[7] Alternative B for Article 5, Article 5 (a) The Broadcast Treaty.
[8] See Article 2(f) of the WIPO Performances and Phonograms Treaty, 1996.(Hereinafter, WPPT) that reads as: "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent"
[9] See Article 3 (f) of the Rome Convention, 1961 (Hereafter The Rome Convention), that reads as: '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds.'
[10] See Article 2(c) of the Beijing Treaty on Audiovisual Performances, 2012(Hereafter The Beijing Treaty), that reads as '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.'
[11] Alternative B for Article 5, Article 5 (c) The Broadcast Treaty.
[12] Article 5, Alternative A to Article 5(d) The Broadcast Treaty.
[13] Alternative to Article 5(d), The Broadcast Treaty.
[14] Alternative B for Article 5, Article 5 (d), The Broadcast Treaty.
[15] Article 3(g), The Rome Convention, 1961.
[16] Article 5, Alternative A to Article 5 (e), The Broadcast Treaty.
[17] Alternative B for Article 5, Article 5 (f), The Broadcast Treaty.
[18] Article 2(c), WPPT.
[19] Article 2(b), The Beijing Treaty
[20] Article 5, Alternative A to Article 5 (f), The Broadcast Treaty.
[21] Alternative B for Article 5, Article 5 (e), The Broadcast Treaty.
[22] Article 2(g), WPPT.
[23] Article 2(d), The Beijing Treaty.
[24] Article 5 (h), The Broadcast Treaty.
[25] Article 12(2), The WIPO Copyright Treaty, 1996.
[26] Article 19(2), WPPT.
[27] Article 16(2), The Beijing Treaty.
