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WIPO: Scope and rights of potential broadcasting treaty clarified

by Prasad Krishna last modified May 28, 2014 07:03 AM
This post by Alexandra Bhattacharya was published in SUNS #7796 dated 5 May 2014.

Read the story posted on Third World Network here. CIS is quoted.


Integral concepts and the options on the scope of a proposed broadcasting treaty, and the substantive rights envisaged for broadcasting organisations have been further elucidated.

The 27th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) completed its two- and-half-day discussion on 30 April of the agenda item on a proposed Treaty on the Protection of Broadcasting Organisations - a 16-year-old issue in WIPO.

However, a number of member states (India and Brazil) pointed out that there was further need to tackle the technical issues and that there was still no clear consensus.

The results of the informal consultations (Regional Coordinators plus six) held by the committee's Chair have produced two tables based on Article 6 which deals with the "Scope of Application" of the proposed treaty, and with Article 9 on "Protection for Broadcasting Organisations" in the working document (SCCR/27/2 Rev).

There is no clear consensus on most of the elements in the tables, but they are meant to consolidate all the options and proposals currently in place.

The 27th session of the SCCR is taking place in Geneva from 28 April to 2 May.

In 2007, WIPO's General Assembly agreed to pursue a "signal-based approach" to drafting a new treaty to provide protection for broadcasting organisations, to ensure that provisions on signal theft in themselves did not give broadcasters additional rights over program content.

Results of Informal Consultations: Tables on Scope of Application and Rights

The informal consultations have resulted in a table on the Scope of Application of the treaty which relates to Article 6 of the proposed treaty. The potential applicable areas identified include:

(i) traditional broadcasting [and cablecasting](wireless or by wire)(+pre-broadcast signal);

(ii) simultaneous and unchanged transmission of broadcast program (simulcasting);

(iii) deferred linear transmission of broadcast program;

(iv) on-demand transmission of broadcasting program (catch up) and program-related material (to be defined); and

(v) internet originated linear transmission (webcasting).

Elements (ii) to (v) relate to transmission over the Internet [if included, only for traditional broadcasters/cable casters]. The Chair stated that there was greater emphasis on traditional broadcasting which included both wireless or by wire along with pre-broadcast signals. There was greater divergence with respect to transmissions over the internet with a majority position that simultaneous and almost simultaneous broadcasting should be part of the treaty. Some had also expressed the opinion that webcasting should be beyond the scope of the treaty.

The second table relates to rights for broadcasting organisations and is in the context of Article 9 on "Protection for Broadcasting Organisations".

This table includes: (i) simultaneous re-transmission of the broadcast signal to the public over any medium; (ii) Near simultaneous re-transmission of the broadcast signal to the public over any medium (to be defined); (iii) Transmission of the broadcast signal to the public from a fixation and over any medium (not limited in time) including the making available right; (iv) Fixation of a broadcast signal, reproduction of fixation of broadcasts, distribution of fixations (copies) of broadcasts, performance of broadcast signal in places accessible to the public [against payment of an entrance fee]; (v) Protection of pre-broadcast signals; and (vi) National Treatment when the protection is equivalent; reciprocity when there is a difference in the protection.

After the presentation of the tables in the plenary, Brazil said that "for the sake of transparency", it wanted to state that the informal discussions were helpful in the sense that they had produced a "deeper understanding of what we are talking about".

It stressed that it had tremendous difficulty in referring to the word "consensus", as many aspects were yet to be clarified. It underlined the need to see the discussion with a "grain of salt".

India supported the statement by Brazil, noting that although the committee had "grappled with many issues," there was need for a more technical discussion. In this context, it proposed that broadcasting engineering experts be invited to an informal experts' meeting during the next session of the SCCR.

Support for India's proposal was voiced by the United States, Brazil, El Salvador, Canada, and Colombia.

The European Union stated that the discussions showed that a number of delegations had expressed their support for covering traditional broadcasting and cablecasting transmissions. The most divergent views were with respect to simulcasting deferred transmissions and on-demand transmissions.

It also said that there was a need to have more discussion with respect to elements (ii) and (iii) of the table on Rights. It added that there could be flexibility on element four if there was a good solution for two and three.

The United States was of the opinion that the "charts" that pulled out the multiple proposals on the table allowed the delegation to understand the key elements better and also to get some initial indication of the thinking of different delegations on those elements.

It observed that there was general agreement as to the inclusion of traditional broadcasting over the air which is clearly within the mandate of the General Assembly.

Elements (i) and (ii) in the table on rights, the simultaneous and near simultaneous re-transmission of signals to the public were essentially the proposal of the United States for discussion purposes, it added.

Trinidad and Tobago stated for the record that it would like the scope of protection to include traditional broadcasting and cablecasting.

China stated that simulcasting should be included in the treaty.

Protection for Broadcasting Organisations: Exclusive Rights Discussed

The second day of the SCCR focused on Article 9 on "Protection for Broadcasting Organisations" which deals with the substantive rights envisaged in the protection for broadcasting organisations in the potential treaty.

The divergence in views related to the scope and range of the substantive rights to be given to broadcasting organisations. This issue, along with the Scope of Protection (Article 6), remains one of the integral areas of the proposed treaty where consensus is yet to be reached.

A consistent concern expressed by a number of member states and some stakeholders' groups such as those representing copyright providers (authors, actors, musicians) during the session, has been the need to ensure that the potential broadcasting treaty did not infringe or curtail the existing rights of underlying content providers of the broadcast.

As seen in the discussion on the Scope of Protection, the complexity of the issue was evident and member states were encouraged to work on a matrix of exclusive rights envisaged for broadcasting organisations in order to both cement progress and also for better conceptualisation.

[The current text of Article 9 on "Protection for Broadcasting Organisations" includes two Alternatives A and B which deal with exclusive rights to be authorised to broadcasting organisations.

[Alternative A lists fewer rights which include: (i) the re-transmission of their broadcast signals to the public, by any means; (ii) performance of their broadcast signal in places accessible to the public, for commercial advantage or using very large screens; (iii) the use of a pre-broadcast signal intended for them.

[Alternative B has a more extensive list of exclusive rights and includes: (i) the right of fixation of their broadcasts; (ii) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts; (iii) the re-transmission of their broadcasts by any means, including re-broadcasting, re-transmission by wire, and re-transmission over computer networks; (iv) the communication to the public of their broadcasts; (v) the making available to the public of the original and copies of fixations of their broadcasts in such a way that members of the public may access them from a place and at a time individually chosen by them; (vi) the transmission by any means for the reception by the public of their broadcasts following fixation of such broadcasts; (vii) the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.

[India's proposal in the Annex of the working document is essentially based on the right to prohibit, if done without authorisation, the following: (i) the re-broadcast of their signal through traditional broadcasting means; (ii) causing the broadcast to be seen or heard in public on payment of any charge; and (iii) make a fixation of signal for the purpose of re-broadcast.

[Additionally, for this session, Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, the Russian Federation, Tajikistan, Turkmenistan, Ukraine and Uzbekistan tabled a proposal (SCCR/27/6) in which a broad range of rights such as fixation and re-transmission rights are included.

[The United States has also included a proposal for "discussion purposes" which states that "Broadcasting organizations shall have the right to authorize the simultaneous or near-simultaneous re-transmission of their broadcast or pre-broadcast signal over any medium".]

The Chair sought comments from member states on how to move forward on the issue, particularly with respect to determining the range of rights to be given to broadcasting organisations.

Belarus, introducing the group proposal SCCR/27/6, said that adequate protection should be afforded to broadcasters, bearing in mind the economic investment required by them. It added that there should be the broadest scope for the protection to be enjoyed by the broadcasters.

Belarus stated that these rights have to be linked to re-broadcasting of any such content and with the broadcasting of the content in whatever form. It added that the exhaustion of the rights should be left to domestic legislations.
With respect to India's proposal, Belarus stated that the right to prohibit was not sufficient.

The United States stated that its proposal for discussion attempted to "cut through the debate on the scope of rights" and attempted to focus on a "single core right".

The proposal for a "right to authorize the simultaneous or near-simultaneous re-transmission" focused on the need to address the fundamental concerns of the broadcasting organisations within the scope of the 2007 General Assembly mandate on a signal-based protection.

The US added that it was suggesting no post-fixation rights at the international level and only for the protection of the signal. Any protection for post-fixation would be relying on the protection of the content.

The right to authorise the simultaneous or near-simultaneous re-transmission would include the broadcast and pre-broadcast signal, it explained.

It also noted that there had not been opposition to the treaty covering these elements during the meeting, adding that there had not been any consensus on post-fixation rights.

The US further suggested an approach which could be either (i) based on the US proposal, or (ii) used the US proposal as a basis and included some version of post-fixation rights.

It said that there was a need for something that "we can all agree to in the international level".

India stated that its proposal was based on protection for broadcasting organisations based on a "signal based" approach in the traditional sense. In this context, it supported protection for simultaneous broadcasting in the traditional sense and not for webcasting and simulcasting.

Mexico was of the opinion that there was a need to seek "the establishment of general standards" and the discussion had to focus on general principles and not on the details.

In this context, it supported the proposal by the US.

In a similar vein, South Africa noted the need for a general signal-based approach and supported the proposal by the US which was based on a narrow scope of rights.

Brazil also expressed support for the US proposal and stated that with this "narrow and simple" approach it would be possible to make progress.

It however expressed reservation about including other forms of protection other than for simultaneous and near simultaneous re-transmissions.

The European Union also agreed that there was consensus in the room as to the right to authorise or prohibit simultaneous transmissions by any means. However, there was a need to focus on transmissions from fixations where there was less clarity.

It added that there was a need to separate the discussion from fixation and post-fixation rights. There was also a need to be clear about what "near simultaneous" transmissions meant.

The EU said that there was a need to also be clear about what kind of rights were referred to with respect to the right to prohibit.

Canada stated that a single solution to signal piracy remained a challenge and that it was attached to finding a minimum standard today. It added that there was a need to look at both pre- and post-fixation.

It also noted that there were different modes of delivery of broadcasts and there were a number of alternatives in the text. In this context, it would be useful to develop a matrix to further the discussion.

The need to simplify the range of rights on the table was echoed by the US, Ecuador, Chile and Colombia.
The Russian Federation supported the approach in restricting rights in some way and to focus on agreements previously reached, particularly with reference to traditional broadcasting.

It added that with respect to including additional rights in the scope of protection, there would be a need to receive corresponding authority from the General Assembly to do that.

It reiterated that a signal-based approach had already been decided and " if we are going to keep looking at every nuance, then we will not get anywhere".

Iran stated that the aim of the exercise should focus on the "anti-piracy function" and the function of the treaty should stop all forms of piracy. It noted that one approach could be an umbrella solution as seen in the WIPO Performance and Phonograms Treaty.

The Chair proposed informal consultations (Regional Coordinators plus six) in order to make progress on a matrix with respect to the range of rights and the scope of application of the potential treaty.

Concerns Expressed by Observers

A number of observers to the SCCR representing broadcasting organisations expressed the need for a treaty for the protection of broadcasting organisations; however, a number of other organisations also expressed reservations with the current work being undertaken in the SCCR.

The Trans-Atlantic Consumer Dialogue (TACD) stated that it opposed the idea of granting any new layer of intellectual property rights for broadcasters that would make it more expensive and more complex to legally obtain access to and use of information.

It explained that this treaty could create many problems for consumers especially if it is without very clear fixation rights, the rights in literary, dramatic, musical, artistic works, performances, films, sound recordings, broadcasts and other material in which there are copyright and related rights.

The Electronic Information for Libraries (EIFL) and the International Federation of Library Associations and Institutions (IFLA) said that they saw 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.

They explained that the creation of a new layer of rights that affects access to content is of great concern to librarians, because it imposes an additional barrier to access to knowledge, especially to content in the public domain and that libraries have practical experience of such over-protection caused by multiple layers of rights.

EIFL and IFLA urged the member states to consider the costs to taxpayers and society, as well as the perceived benefits of this proposed treaty.

The Centre for Internet & Society (CIS) also expressed concerns regarding the intended scope and language of Article 9 on "Protection for Broadcasting Organisations" in Working Document SCCR/27/2 Rev.

It was of the opinion that the current language expanded the scope of the proposed treaty and was likely to have the effect of granting broadcasters rights over the content being carried and not just the signal.

It stated that the language in Article 9 envisaged fixation and post-fixation rights for broadcasting organisations, for instance, among others, those of reproduction, distribution and public performance and this was inconsistent with a signal-based approach.

Secondly, it expressed reservations on the inclusion of "communication to the public" reflected in Article 9 Alternative B.

It stated that communication to the public was an element of copyright and governs the content layer, as distinct from the "broadcast" or "transmission" of a signal.

Therefore, attempts to regulate "communication to the public" would not be consistent with a signal-based approach, which the CIS believes is the mandate binding on this Committee.

The Chair's conclusions on all the agenda items are expected to be circulated and finalised on the last day of the session (2 May 2014).

The remaining days of the SCCR focused on Exceptions and Limitations for Libraries and Archives as well as Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with Other Disabilities.

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