At WIPO, Authors, Civil Society Watchful Of Rights For Broadcasters

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Nongovernmental organisations attending the World Intellectual Property Organization copyright committee meeting which this week sought to breach differences on what a treaty protecting broadcasters should cover, expressed their views with some unusual coherence.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is meeting from 28 April to 2 May.

The SCCR heard NGO statements on broadcasting on the second day of the meeting. Representatives of libraries, commercial television, authors, recording industry, actors, musicians, rights management bodies, film producers, and civil society gave their perspectives. Most of them called for limitations on the rights the treaty is proposing to grant broadcasters.

Broadcasters Deny Risks, Ask for Protection against Pirates

Broadcasters’ organisations have contended that the treaty would respect authors’, performers’ and producers’ rights.

“All the right holders in the broadcast content automatically benefit from the broadcasters’ ability to take effective action against pirates,” says a document jointly written by several broadcasting organisations. “At the same time, content right holders are not refrained in exercising their own rights against third parties.”

The Association of Commercial Television (ACT) in Europe, which said it represents 33 media groups in Europe, both free-to-air channels and paying television channels, said a lot of members are simulcasting their signal on their website. All of their members, the representative said, are making their signal available to the public through catch-up television services. According to the database of the European Audiovisual Observatory, there are 1,132 catch-up television services in Europe, the representative added.

If those catch-up services were not to be protected by the treaty, it would be easy for pirates “to argue that they didn’t intercept the traditional signal but instead copied the on-demand signal of the broadcaster which would actually leave the broadcasters without any meaningful protection,” he said.

Authors Asks Recognition of Rights, Equitable Remuneration

But doubts are still out there. The International Confederation of Societies of Authors and Composers (CISAC) said royalties collected from broadcasters and other entities are major source of revenue for authors and the discussions on the broadcasters’ treaty was of key importance. CISAC represents 225 author societies which are referred to as collective management associations, from 120 countries.

“Protection for broadcasters should exist if and only if broadcasters themselves recognise and respect the rights of creators of the underlying content,” the CISAC representative said. The majority of royalties collected around the world on behalf of authors are collected for the communication to the public of their works, he said. Unfortunately, he added,” in a number of countries, authors still face reluctance from broadcasters to recognise authors’ rights and obtain licences for the content their transmit.” This is an issue that must be discussed in the context of any future broadcasters’ treaty, he said.

A strong statement was delivered by the representative of the International Federation of the Phonographic Industry (IFPI). One of the issues stemming from the discussions, he said, is the “inherent difficulties that arise when a broadcaster is given rights that seem to be very similar to the rights already enjoyed by those who created and own the rights to the content that they transmit.”

Beyond that issue, he said the federation’s concern “relates to certain rights for broadcasters that go beyond the rights enjoyed by those who create the content that is carried on broadcasters’ signals.”

IFPI asked that any broadcasting treaty considered by WIPO ensure that any grant of rights to broadcasters be made contingent upon respect and consideration for the rights and the interests of those whose content is carried on their signals. “It would be remarkable,” he said, “if a treaty for the protection of broadcasters gave broadcasters rights relating to musical recordings that are superior to the rights of those who create and produced those recordings. However, the current draft text threatens to do just that,” he added.

If the treaty gives broadcasters the right to prevent certain uses of their signals, he said, it should also “ensure that performers and producers of sound recordings enjoy either the right to prevent the use of their recordings by broadcasters or the right to equitable remuneration from broadcasters who use those recordings.”

Broadcasters Seen As Free Riders by Some

The IFPI representative also remarked on the 1996 WIPO Performances and Phonograms Treaty (WPPT), which he said gave the opportunity to countries to opt out of their obligation to give performers and producers of phonograms equitable remuneration from broadcasters. Later, the representative told Intellectual Property Watch that the United States and China had chosen to opt out.

“A treaty that requires signatories to give protection to broadcasters, while the same broadcasters could continue to broadcast recorded music without having to pay for that music or to obtain permission from those who own the rights in that music,” he said, “would be a treaty that condones misappropriation of creative content … for commercial gain, the very conduct that broadcasters purport to seek to curtail in pressing for a treaty.”

He later told Intellectual Property Watch that the committee should seek to address the loophole of the WPPT.

The International Federation of Actors said audiovisual work including feature films and television series add “great economic value” to the signal of broadcasters. Although sharing an interest in protecting the broadcasters’ signal, the representative said some of the proposals on the table go “beyond what we believe is necessary to protect a broadcast signal,” and blur the line between the protection of the signal and the protection of the content carried by that signal.

The International Federation of Musicians followed the same line and said it would be “incoherent” if broadcasting organisations were granted new rights by WIPO members “which violate those of the creators.”

“If piracy is the appropriation of a right from legitimate owners of that right, what are we seeing when broadcasters exploit musical recordings for which they make no payment to the performers or the producers of phonograms?” he asked.
According to the British Copyright Council, “an ability for a broadcasting organisation to prevent the misuse of its signal is … important for all rights holders who lie behind the authorisation of the signal.” But he also added that granting protection to broadcasters should also permit the underlying right owners “to continue to assert their own exclusive rights or their rights to equitable remuneration from broadcasters.”

The International Federation of Film Producers Association (FIAPF) said exclusive rights support the creativity of authors and allow film producers to get the funding they need to transform that creative ability into a cultural product. Broadcasters are important partners in the film production and distribution chain in many countries, the representative said. Although supportive of updating the protection for broadcasters, FIAPF called for a formulation of the treaty text that would avoid confusion between broadcasters’ rights and rights to audiovisual content.

Libraries, Civil Society Worried

The representative of the Electronic Information for Libraries and the International Federation of Library Associations and Institutions said both organisations see “no compelling public policy reason for a new international instrument on the protection of broadcasting organisations, because piracy of broadcast signals is already adequately dealt with under existing laws and treaties.” An additional layer of rights that could affect access to content is of great concern to librarians, she said, as it “imposes an additional barrier to access to knowledge, especially to content in the public domain.”

The Trans-Atlantic Consumer Dialogue (TACD) compared the potential treaty to an unidentified flying object “that has been buzzing around this room for years.” The representative said TACD “opposes the idea of granting any new layer of IP rights for broadcasters that would make it more expensive and more complex to legally obtain access and use of information.”

Fixation rights if not clearly limited could create problems for consumers, he said, adding that TACD supports strong exceptions to any new rights to protect access to works and their use.

The Center for Internet and Society also expressed concern on Article 9 of the draft treaty (Protection of broadcasting organisations) which they said could give broadcasters rights over the content that is being carried by the signal.

Knowledge Ecology International said the treaty was not “about copyright piracy but a special ride for broadcasters,” and warned against creating new layers of rights, which could create more obligations for consumers, libraries and businesses to pay more money not to copyright holders but to the distributors of content.