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WIPO SCCR 43: Notes from Day 3
http://editors.cis-india.org/a2k/blogs/wipo-sccr-43-notes-from-day-3
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<ol> </ol>
<p style="text-align: justify; "><b>Working towards a binding international L&E instrument</b><br /> Iran, Pakistan and Kenya highlighted their support toward the African proposal as well emphasized the need for an internationally binding treaty on L&E. Saudi Arabia mentioned the need for Limitations and Exceptions to benefit the preservation and sharing of cultural heritage, as well as for persons with disabilities. Iran emphasied on the need for adequate balance and copyright protection and a balance between different national legislations. Iran stated that there was a need to have an international legal instrument in order to harmonise national legislations, in the absence of which there would not be a free flow of information. Iran also emphasised on the need to look at the priorities of developing countries with respect to the Development Agenda. Pakistan also highlighted the issues that came to light during the pandemic, especially with regard to cross border use of information by educational institutions. In addition to this Pakistan stated that it looked forward to a binding instrument that was not too prescriptive. Kenya shed light on the concerns around the increasing knowledge gap between the developed and the developing countries, and the migration from analogue to digital environment.</p>
<p style="text-align: justify; "><b>WIPO SCCR 43: Notes from Day 4 <br /> <br /> Limitations and Exceptions and Cross Border Flow of Data <br /> </b>Nigeria, South Africa, Russia, Brazil, Argentina, Iran, Uganda and Algeria extended their support to the Work Programme on L&E by the African Group. Nigeria in their statement expressed how L&E were essential for research, cultural exchange, and how it had the potential to help people around the world who still lack access to educational and research materials. Nigeria also highlighted that a legally binding international treaty would help harmonise and balance the copyright system with other instruments such as the TRIPS agreement and the WIPO internet treaties, and facilitate smooth transborder trade in both online and traditional media. Iran stated that the creation of L&E for online and crossborder use of data is imperative, especially for the benefit of online teaching and research as well as bridge the digital divide by facilitating access to knowledge and technology. <br /> <br /> The European Union (EU) and France however were not in support of a legally binding instrument.The EU stated that they would prefer a non-binding instrument such as a toolkit, while France stated that the current international framework of copyright is sufficiently flexible to allow members to implement L&E in their national legislations, as well as to find appropriate tools to meet the needs of education, research and preservation. France expressed their reservation in moving towards a normative framework and stated that the states could look at the exchange of best practice at national level and support in drafting national legislations. The United States stated that topics such as text and data mining and contract override were not issues that were fully discussed yet at the committee level.</p>
<p><b>Observations by the Chair </b></p>
<ol>
<li>The Chair noted that there continued to be a disagreement on whether to pursue international instruments for Limitations and Exceptions.</li>
<li style="text-align: justify; ">The Chair also noted that while there was a lot of support for the proposal, there still was no consensus on the proposal. The Chair suggested that the African Group work with the member states that highlighted their reservations and work together with the Chair to see if the proposal could be revised, or to look at portions of the proposal that enjoyed the support to be advanced.</li>
</ol>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-sccr-43-notes-from-day-3'>http://editors.cis-india.org/a2k/blogs/wipo-sccr-43-notes-from-day-3</a>
</p>
No publishershwetaBroadcast TreatyBroadcastingLimitations & ExceptionsAccess to Knowledge2023-04-28T13:03:42ZBlog EntryWIPO SCCR 43: Notes from Day 2
http://editors.cis-india.org/a2k/blogs/wipo-sccr-43-notes-from-day-2
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<p style="text-align: justify; "><b>Rights of broadcasters<br /></b>Iran wanted clarifications about whether the rights granted to broadcasters under the treaty would be a negative right (right to prohibit) or a positive right (right to authorise). Iran also highlighted that there was a need to clarify definitions in the treaty, particularly with respect to user generated contents shared on websites such as Youtube, in comparison with traditional broadcasters.</p>
<p style="text-align: justify; ">The Chair clarified that the treaty provides two sets of rights, positive rights under Article 6 and 7 and negative rights under Article 8 and 9. The Chair also clarified that the treaty aimed to bridge the various legal frameworks, based on copyright, under a rights based approach and a signal based approach. In the signal based approach, the positive right under Article 6 is based to protect only live signal and the protection ends at the point of fixation, hence there is no relation between the right of fixation Article 7 and the right to prohibit transmission and deferred transmission under article 8. The Chair further clarified that the positive right ends at fixation after which the right to prohibit comes into play. With respect to User Generated Content the Chair clarified that the current draft of the treaty focused protection to traditional broadcasters and not other service providers.</p>
<p style="text-align: justify; "><b>Terms of the Right </b>The USA highlighted their concern over the possible perpetual term of fixation rights and requested that a revised text could have some explicit time limit. Singapore echoed USA’s concern over the absence of limitations on the duration of the rights of the broadcasters which could give broadcasters perpetual protection of a programme. Similarly Pakistan questioned the need for a right of fixation highlighting that piracy was an enforcement issue. With respect to the term of protection the Chair clarified that the treaty sought to provide practical protection to broadcasters of their live signal, and not the content of the broadcast. Further clarifying that one of the main aims of the treaty was the protection of simultaneous retransmission, and to provide protection in case there was a fixation of the signals. <b> </b></p>
<p style="text-align: justify; "><b>Limitations and Exceptions<br /></b>Iran and Brazil highlighted issues about limitations and exceptions. While Iran stated that the inclusion of the three step test in the treaty would water down the limitations and exceptions provisions, Brazil highlighted that the Article 11 of the treaty did not follow the text of the Marakesh convention or the Beijing treaty regarding Limitations and Exceptions. Brazil highlighted that there was a need to clarify in the text of the treaty itself that the list provided under the Article is illustrative and not exhaustive. In addition to this they stated that the text of the treaty should also establish the presumption that all the examples listed have already fulfilled the three steps. Brazil also highlighted the question about the consequence of the proposal on works in the public domain that are not sufficiently clear. The draft should ensure that public domain content when broadcasted should not receive another layer of protection.</p>
<p style="text-align: justify; ">Communia, Knowledge Ecology International (KEI) and Innovarte also highlighted issues that might come up with broadcasting works that are in the public domain. Communia provided examples where the broadcasters might have the only good copy of historic events and reporting that have now become a part of the public domain, however the broadcasters could reappropriate these which are in the public domain with new exclusive rights through this treaty. Communia hence suggested a need for exclusion of public domain works in the treaty. Innovarte highlighted Article 6 of the Berne convention which allows for exceptions related to public interest such as use of excerpts.</p>
<h3><b>Agenda Item 6 and 7 - Limitations and Exceptions for Libraries and Archives, for Educational and Research Institutions and for Persons with Other disabilities </b></h3>
<p><b> </b></p>
<ol> </ol>
<p style="text-align: justify; "><b>Working towards a binding international L&E instrument</b><br />The beginning of the discussion on Limitations and Exceptions began with the CEBS Group, Group B, the European Union and the USA emphasising on the need to look at other avenues to implement L and E without going for a legally binding international instrument. Some of the solutions provided included strengthening existing national legislations, existing solutions within the framework of the existing international treaties, exchange of best practices, and capacity building for countries to implement L&E’s in their national legislations.</p>
<p style="text-align: justify; ">Ghana on behalf of the African Group stated that there was a need to provide mutual benefit between those who generate and those who use creative works. Ghana also highlighted the issues with cross border access and sharing of copyrighted materials which is becoming increasingly difficult for libraries, archives, museums and research institutions to access. Ghana highlighted the need for a strong support in development of a legal instrument on Limitations and Exceptions, for libraries, archives, museums and for persons with disabilities other than blindness. South Africa in their statement also highlighted the benefit L&E’s would provide to both creators and users, and the cross border transfer of data. And extended their support to the statement of Ghana and work towards an international instrument whether model law, joint recommendation or a treaty.<b> </b></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-sccr-43-notes-from-day-2'>http://editors.cis-india.org/a2k/blogs/wipo-sccr-43-notes-from-day-2</a>
</p>
No publishershwetaBroadcast TreatyBroadcastingLimitations & ExceptionsAccess to Knowledge2023-04-28T12:22:24ZBlog EntryWIPO SCCR 43: Notes from Day 1
http://editors.cis-india.org/a2k/blogs/wipo-sccr-43-notes-from-day-1
<b>Member states delivered opening statements and deliberated on the progress, substantive provisions, and method of work on the draft broadcasting treaty text. This blog post summarises positions and contentions that supported: 1)The need for balance between rights of broadcasters and that of users and researchers 2) Questions around fixation and signal piracy 3) Need for consensus and towards a diplomatic conference </b>
<h3>Opening Statements by Group Coordinators</h3>
<p style="text-align: justify; ">Uruguay on behalf of the GRULAC spoke about the Marrakesh treaty and highlighted how this was the first treaty that looked at human rights and copyright. Uruguay also mentioned the need to look at exclusion and the need for dissemination of knowledge.</p>
<p style="text-align: justify; ">On behalf of the Baltic states, Poland expressed their interest in discussing the Limitations and Exceptions (L&E) agenda, with focus on persons with other disabilities, as well as conveyed their interest in examining the <a href="https://www.wipo.int/edocs/mdocs/copyright/en/sccr_43/sccr_43_4.pdf">T</a><a href="https://www.wipo.int/edocs/mdocs/copyright/en/sccr_43/sccr_43_4.pdf">oolkit</a><a href="https://www.wipo.int/edocs/mdocs/copyright/en/sccr_43/sccr_43_4.pdf"> on Preservation</a>.</p>
<p style="text-align: justify; ">The African group coordinator Ghana, highlighted the need to look at the contribution to Sustainable Development Goals<b>, </b>they also showed support for Senegal and Congo on their work on artist copyright and resale rights.</p>
<p style="text-align: justify; ">Singapore made the statements on behalf of the Asia and the Pacific Group (APG) group coordinator Indonesia, they commented on the need to work towards a fair and balanced broadcast treaty, and to narrow existing gaps which would require a delicate balance. They also stated that the treaty needs to be comprehensive and inclusive, with limitations and expectations for Libraries, Archives and Museums and areas of cultural importance, as well as access to broadcast content for education and research.</p>
<h3 style="text-align: justify; ">Agenda Item 5: Protection of Broadcasting Organisations</h3>
<ol> </ol>
<p style="text-align: justify; "><b>The need for Balance between rights of broadcasters and that of users and researchers</b></p>
<p style="text-align: justify; "><b> </b>China, Ghana, Colombia, Saudi Arabia, Iran, in their statements highlighted the need for balance between the rights of the broadcasters with suitable limitations and exceptions. Iran in their statements also highlighted the work of libraries, archives and museums in education. Iran also highlighted that different parameters for Limitations and Exceptions in member states' national legislations has the potential to cause barriers in the free flow of data for researchers and educators.</p>
<p style="text-align: justify; ">Colombia spoke about their concerns regarding the fixation rights laid out in the treaty and the working of limitations and exceptions under Article 11. Colombia stated that the use of the term “may” in Article 11 could result in countries ignoring the limitations and exceptions provisions when they adopt this treaty into their national legislations. They suggested the changing of the wording in Article 11 from “may” to “shall” to reflect a balanced and progressive treaty.</p>
<p style="text-align: justify; ">Nigeria in their statement highlighted the difficulties that were faced by students and educators during Covid 19, when schools and libraries were closed. They also shed light on how limitations and exceptions were not granted uniformly.</p>
<p style="text-align: justify; ">Pakistan also emphasised on the need to look at the interests of educators, and supported the inclusion of mandatory limitations and exceptions while protecting the rights of the creators.</p>
<ol> </ol>
<p style="text-align: justify; "><b>Questions around fixation and signal piracy</b></p>
<p style="text-align: justify; ">The Central European and Baltic States Group (CEBS) group, The United Kingdom (UK) , Canada, Tajikistan and The United States of America and Japan in their statements mentioned the need to protect broadcasters especially with respect to stopping piracy. The CEBS group stated that in the era of rapidly evolving technologies and changing digital environments there was a need to extend international protection against piracy to different types of transmissions of broadcasting organizations, including those over computer networks. Similarly, the United Kingdom also highlighted the rapid advancements in technology, which enables signal piracy through redirecting. The UK stated that Article 7 of the draft treaty did not provide sufficient protection, an issue that needed more deliberations.</p>
<ol> </ol>
<p style="text-align: justify; "><b>Need for consensus and progress towards a diplomatic conference </b></p>
<p style="text-align: justify; "><b>P</b>akistan, China, Kingdom of Eswatini, The African Regional Intellectual Property Organization (ARIPO) in their statements mentioned that they were looking forward to a diplomatic conference. Pakistan highlighted the need for open and inclusive negotiation in the diplomatic conference.</p>
<p style="text-align: justify; ">India expressed that the scope of protection in the revised draft is more comprehensive and in line with technological developments. The definition of the term broadcasting has also been made more comprehensive with the inclusion of the word “any means”. The definition provided for fixation has been provided along with the rights of fixation under Article 7, which may be the most relevant steps to prevent unauthorised exploitation by a third party to the values represented by the signal. India also stated that the treaty is capable of covering piracy in the digital environment and includes broadcasting of all types of broadcast. India also stated that they support the finalisation of the treaty, maintaining the interest of all member states on fundamental issues.</p>
<h3>Presentation by the Chair and Vice Chair</h3>
<ol>
<li style="text-align: justify; ">On Article 11 the Chair stated that the list could be made clearer, and also clarified that the list is not a closed list. With respect to the works in the public domain the Chair clarified that the broadcasting and distributing of works in public domain, only the work carrying the signal will be under the treaty.</li>
<li style="text-align: justify; ">With regard to the scope of fixation the Chair clarified that the scope of fixation is only for the entity emitting the signal. The focus of the treaty is to limit the rights to signal based rights. </li>
</ol>
<p><b> </b></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-sccr-43-notes-from-day-1'>http://editors.cis-india.org/a2k/blogs/wipo-sccr-43-notes-from-day-1</a>
</p>
No publishershwetaBroadcast TreatyBroadcastingLimitations & ExceptionsAccess to Knowledge2023-04-28T12:01:31ZBlog EntryWIPO SCCR 42: Statement by CIS on the Protection of Broadcasting Organisations Agenda Item
http://editors.cis-india.org/a2k/blogs/wipo-sccr-42-statement-by-cis-on-the-protection-of-broadcasting-organisations-agenda-item
<b>Anubha Sinha delivered a statement on behalf of CIS, on day 2 of the 42nd WIPO SCCR session on the Protection of Broadcasting Organisations Agenda Item. </b>
<p> </p>
<p>Thank you, Mr. Chair.</p>
<p>I’m speaking on behalf of the Centre for Internet and
Society, India.</p>
<p>Mr. Chair we would like to congratulate you and the
vice-chair on your election.</p>
<p>The current draft text of the WIPO Broadcasting
Organisations treaty carries a rather weak framework of limitations and exceptions,
when we consider the long duration of protection of twenty years that has been
proposed.</p>
<p>The limitations and exceptions are not aligned to the
ongoing discussions on the L&E agenda, where there is an agreement evolving
amongst many member states to revisit and revise limitations and exceptions for
purposes of preservation, online and cross-border uses, and research for
benefit of education, research, libraries, archives and museums.</p>
<p>The framework does not rise to these standards, and also
makes enacting of limitations and exceptions in national law optional.</p>
<p>Seen from this perspective, the draft text of the WIPO
Broadcasting Organisations treaty is neither a balanced treaty nor a modern
one.</p>
<p>Thank you.</p>
<p> </p>
<p></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-sccr-42-statement-by-cis-on-the-protection-of-broadcasting-organisations-agenda-item'>http://editors.cis-india.org/a2k/blogs/wipo-sccr-42-statement-by-cis-on-the-protection-of-broadcasting-organisations-agenda-item</a>
</p>
No publishersinhaBroadcast TreatyLimitations & ExceptionsAccess to Knowledge2022-05-10T14:38:48ZBlog EntryWIPO SCCR 41: Statement by CIS on the Protection of Broadcasting Organisations Agenda Item
http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-statement-by-cis
<b>Anubha Sinha delivered a statement on behalf of CIS, on day 1 of the 41st WIPO SCCR session on the Protection of Broadcasting Organisations Agenda Item.</b>
<p>Thank you, Mr. Chair.</p>
<p>I'm speaking on behalf of the Centre for Internet and Society, India.</p>
<p>In the Asia-Pacific region, where there exists a deep digital divide in many countries, radio and TV broadcasting was instrumental in meeting quality education requirements during the pandemic. It would be invaluable and forward-looking for an international broadcasting treaty to have adequate limitations and exceptions for another emergency scenario such as COVID019. I urge the Committee to deliberate more deeply on this aspect.</p>
<p>Thank you.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-statement-by-cis'>http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-statement-by-cis</a>
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No publishersinhaBroadcast TreatyLimitations & ExceptionsAccess to Knowledge2021-06-29T13:19:47ZBlog EntryWIPO SCCR 41: Notes from Day 3 and Day 4
http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-3-and-day-4-1
<b>Day 3 and 4 saw the presentation of four studies conducted by external experts on music markets in various regions in the world and one study on rights of stage directors of theatrical productions. Day 4 saw member states sharing their positions on a proposal for creation of two rights 1) rights of stage directors of stage productions and 2) public lending right.
The Chair also presented the draft summary of the session upon its conclusion, on Day 4. This blog post shares the specific text under the broadcasting and limitations and exceptions agenda items, relevant from an access to knowledge perspective.</b>
<p><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29">1. On the issue of transparency and inclusivity in informal work on the 'protection of broadcasting organisations' agenda item, that emerged on <a class="external-link" href="https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-1">Day 1</a>, the Chair summarised:</span></p>
<p><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29">" </span><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29"><span id="docs-internal-guid-c9f5266b-7fff-0158-ea0e-f92bc8fc953c">The chair and vice chair and will take the views expressed during the session on the modalities of the informal work into consideration, including the need to uphold the principles of transparency and inclusivity."</span></span></p>
<p><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29">2. An 'information session' on impact of COVID was proposed by the Asia-pacific group on <a class="external-link" href="https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-2">Day 2</a>, the Chair summarised:<br /></span></p>
<p><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29"></span><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29">" The Committee requested the Secretariat to organise 1/2 day information session, footnote 1, the text of the footnote is as follows. The reference to half day is based on a meeting day with two three-hour sessions, in case SCCR/42 has truncated meeting days with single daily meeting sessions of up to three hours, the information session could take place during one entire day. </span></p>
<p><span id="docs-internal-guid-87c772fa-7fff-1080-c67b-c3cde12e0f29">So, back to the sentence after the footnote. I will repeat, the Committee requested the Secretariat to organise 1/2 day information session on the topic of the impact of COVID-19 on the <strong>cultural, creative and educational ecosystem including copyright, related rights and limitations and exceptions</strong> during the week of the 42nd session of the Committee. During the session following presentations from experts, member states will have the opportunity to exchange views and experiences. This process will be guided by a holistic and balanced approach. The information session will be separated from the rest of the agenda during the 42nd session."</span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-3-and-day-4-1'>http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-3-and-day-4-1</a>
</p>
No publishersinhaBroadcast TreatyLimitations & ExceptionsAccess to KnowledgeWIPO2021-07-08T14:51:23ZBlog EntryWIPO SCCR 41: Notes from Day 1
http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-1
<b>Member states delivered opening statements and deliberated on the progress, substantive provisions, and method of work on the draft broadcasting treaty text. This blog post summarises positions and contentions that supported: 1) transparency in SCCR work 2) limitations and exceptions 3) addressing the object of protection and overbroad scope of rights in the draft treaty text. </b>
<ul><li>
<h2>Agenda Item: Protection of Broadcasting Organisations</h2>
</li></ul>
<h3 id="docs-internal-guid-2d7fdecc-7fff-4eac-fbe0-71dde65e7c7e" dir="ltr">1. Opacity around informal work on the broadcasting treaty agenda</h3>
<p dir="ltr">Indonesia, Pakistan, Iran, South Africa and Chile shared their disappointment on the lack of transparency of informal meetings on the treaty text, and urged for greater openness. The informal meetings were conducted between WIPO and an ad hoc group of countries known as ‘Friends of the (SCCR) Chair’. This group currently includes Argentina, Colombia, the European Union, Finland, Germany, Japan, Kenya, Mexico, the Philippines, Republic of Korea, Russian Federation, and the United States of America. The group met in April and June 2021, but Indonesia questioned whether there was a mandate for it in the first place.</p>
<p dir="ltr">Indonesia and Pakistan requested for further updates on the status of the treaty text from the WIPO SCCR Chair and Vice-Chair, especially as an outcome of the informal work. The two delegations also noted the lack of diversity and imbalance in representation in the ‘Friends of the Chair’ group. Pakistan noted that this agenda item had always had a diversity of viewpoints, and that this new mechanism was reductive and not inclusive. </p>
<p dir="ltr">The WIPO SCCR Chair’s and Vice-Chair’s response was that the ‘Friends of the Chair’ mechanism was adopted to do inter-sessional work (work between two SCCRs), in a flexible and less-time consuming manner. The Chair added that the group was <a href="https://www.wipo.int/tad/en/activitydetails.jsp?id=19871">created</a> in 2019 (i.e in the previous Chair's term). However, it should be noted that the group was created only for an “exceptional informal intersessional meeting” with the objective to “brainstorm on possible ways to make progress on the draft treaty on the protection of broadcasting organizations in view of the upcoming WIPO General Assembly and the 40th session of the SCCR which will be held in October.” Indonesia made a request to join this group, which was denied by the Chair. The Chair only assured that the concerns raised will be addressed.</p>
<h3 dir="ltr">2. <span id="docs-internal-guid-645b82b3-7fff-f227-a130-9f6cbd693337">Support for adding better limitations and exceptions to the treaty text</span></h3>
<p id="docs-internal-guid-454df1d1-7fff-9cba-a70c-49e468c21149" dir="ltr">South Africa emphasised on the critical role of broadcasting organisations in transmitting information and knowledge, and cautioned that the treaty text should be balanced and not negatively impact access to information, culture and education. Iran (speaking on behalf of Asia-pacific group) highlighted the public interest stakes in the treaty and stated that the way forward was to ensure that no layer of rights is created which might affect the right to access information. Chile also was in favour of a more balanced approach that should include limitations and exceptions. Indonesia and Pakistan added that limitations and exceptions in the current text need to be addressed more properly, as they are essential provisions for digital preservation, online use and research.</p>
<h3 dir="ltr">3. A<span id="docs-internal-guid-c6bc905b-7fff-5da0-fd21-232c34ed0592">lternative legal solutions to address broadcast piracy </span></h3>
<p dir="ltr"><span id="docs-internal-guid-c6bc905b-7fff-5da0-fd21-232c34ed0592"></span>Canada highlighted how in its national law it provides signal protection and combats piracy without granting exclusive rights to broadcasters on transmission.</p>
<ul><li>
<h2 dir="ltr">Agenda Item: Limitations and Exceptions<br /></h2>
</li></ul>
<h3 id="docs-internal-guid-307d14ca-7fff-cec0-6174-8c8b1db618ec" dir="ltr">1. Support for Limitations and Exceptions agenda item</h3>
<p dir="ltr">India noted the importance of the limitations and exceptions agenda for the benefit of the work of libraries, archives, museums, and educational and research institutions, and shared its support for the agenda item.</p>
<p dir="ltr"> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-1'>http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-1</a>
</p>
No publishersinhaBroadcast TreatyBroadcastingLimitations & ExceptionsAccess to Knowledge2021-06-29T13:40:49ZBlog EntryViews on on the proposed WIPO Treaty for the Protection of Broadcasting Organizations at side-event organised by Knowledge Ecology International
http://editors.cis-india.org/a2k/blogs/cis-views-on-on-the-proposed-wipo-treaty-for-the-protection-of-broadcasting-organizations-at-side-event-organised-by-knowledge-ecology-international
<b>On November 27, Knowledge Ecology International (KEI) organised a side event during deliberations of the 37th Session of the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO). Centre for Internet & Society (CIS), Electronic Information for Libraries (eiFL.net), Corporacion Innovarte, Creative Commons, and Knowledge Ecology International appraised the current text for the proposed WIPO Treaty for the Protection of Broadcasting Organizations (Revised Consolidated Text on Definitions, Object of Protection, Rights to be Granted and Other Issues, SCCR/36/6).
Speakers provided an overview of the treaty, explained the potential risks and problems caused, and proposed solutions to narrow the Treaty’s scope and limit the damage.
Below is a transcript of the remarks made by Anubha Sinha who represented CIS at this event.</b>
<div> </div>
<div> </div>
<p></p>
<p>Good afternoon, everyone.</p>
<p>My presentation will be in reference to the revised
consolidated text <a class="external-link" href="https://www.wipo.int/edocs/mdocs/copyright/en/sccr_36/sccr_36_6.pdf">SCCR 36/6</a> and the US proposal <a class="external-link" href="https://www.wipo.int/edocs/mdocs/copyright/en/sccr_37/sccr_37_7.pdf">SCCR 37/7</a>.</p>
<p>In essence, this treaty is trying to create a new set of
rights for broadcasters operating in both mediums (first, traditional –
satellite, airwaves, cables, and second, the internet), ostensibly to counter
signal piracy. We are looking at updating a neighbouring rights or related
rights regime to protect signals across both mediums.</p>
<p>The intent of treaty is to exclude entities exclusively delivering their
programmes over the internet. I fear that the results would create
an unequal playing field between broadcasters and internet streaming entities.
This would be the first, immediate impact. To then catch up, perhaps, internet
streaming services would look to satisfy the treaty requirements to avail
protection. This would involve satisfying the definition of a broadcasting
organisation (as in SCCR 36/6), and for their country to have ratified the
treaty. The characteristics of a broadcasting organisation can be satisfied by
acquiring any traditional broadcasting service, for such an entity, as per the
current text of the treaty. This would require serious capital, and most start
up innovations in the area would not be in a position to undertake such a step.
And then there is the question of asserting the rights and enforcing them in
other countries – this will be an extremely expensive affair. The point I’m
trying to make is that this treaty seems to be set to protect a narrow slice of
broadcasters, with significant market power in their home markets.</p>
<p>My
co-panelists will discuss specific harms that this will have on the building
of commons, and other damaging effects on global efforts to build an
affordable and accessible knowledge system. This is unfortunate, and hence we
urgently need text that provides for a mandatory list of limitations and
exceptions, and not work with the soft language that is present right now. We have to accept
that multilateral norm-setting at the international level sets the tone for
countries to enact their own national legislations – indeed, before the
Marakkesh treaty there were hardly any developing countries which had an
expansive beneficial copyright exception for the visually impaired (except India - that I'm aware of), and look
who the first few countries to ratify the treaty were – India, Argentina, El
Salvador, Paraguay, Uruguay, etc – all developing countries leading to adopt this international
standard.</p>
<p>The <a class="external-link" href="https://www.wipo.int/edocs/mdocs/copyright/en/sccr_37/sccr_37_7.pdf">US delegation’s proposal</a>, introduced yesterday, pushes the idea of
limiting exclusive rights granted under this treaty to broadcasting
organisations, so long as the countries provide adequate protection against
piracy in other bodies of law. This seems like a promising idea – one that does
not upend the legal theories of neighbouring rights and also shrinks the
proposed model in the treaty that seeks to grant monopolistic property rights
for a long and unclear period of time to powerful organisations –
organisations that by their very nature and functions are chroniclers of our
times and keepers of valuable cultural heritage.</p>
<p>At a <a class="external-link" href="https://www.keionline.org/29025">seminar</a> on this very
treaty organised last month by KEI, Proffessor Bernt Hugenholtz flagged off the
problematic justifications provided for increasing the strength of this
neighbouring right. He said that the
justifications should indicate a corresponding increase in cost of
disseminating content. Should new exclusive rights be created for
gradation-like increase in investment? He was not convinced that the costs had
gone up significantly, and he also pointed out that this cost should not
account for money spent on acquiring the rights to broadcast the content. Further, going back to the US proposal, the
proposal recognises the persistent conceptual difficulties of distinguishing
between signal protection and content protection. This very difficulty has been
raised by many civil society organisations in the past, and more recently it
cropped up at a discussion on the treaty in New Delhi, where both civil
society organisations and representatives of broadcasters were present. Another
practical challenge (that remains) will be to separate the computer network based operations
from the non-computer network based operation; however, in this age, is it
technically possible to do that?</p>
<p>To conclude, I think that fundamental concepts and terms
need to be properly clarified to arrive at an understanding that is shared
across all stakeholders; and a corresponding strengthening of limitations and
exceptions is urgently needed. </p>
<p>Thank you.</p>
<p><strong>For a complete list of speakers at the event, please click <a class="external-link" href="https://www.keionline.org/29234">here</a>. </strong></p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-views-on-on-the-proposed-wipo-treaty-for-the-protection-of-broadcasting-organizations-at-side-event-organised-by-knowledge-ecology-international'>http://editors.cis-india.org/a2k/blogs/cis-views-on-on-the-proposed-wipo-treaty-for-the-protection-of-broadcasting-organizations-at-side-event-organised-by-knowledge-ecology-international</a>
</p>
No publishersinhaLimitations & ExceptionsAccess to KnowledgeBroadcast TreatyBroadcastingWIPO2018-11-29T10:48:40ZBlog EntryCIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions
http://editors.cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty
<b>This is a submission made by Nehaa Chaudhari on behalf of the Centre for Internet and Society to the Expert Committee on the Broadcast Treaty constituted by the Ministry of Information and Broadcasting, Government of India. This submission compares provisions of the Proposed Treaty for the Protection of Broadcasting Organizations that is being deliberated at WIPO's SCCR at the moment, and provisions for the protection of rights of broadcasters that are already present in existing international instruments.</b>
<p style="text-align: justify; ">Special thanks to CIS intern, Amulya Purushothama for her research and writing on this subject.</p>
<hr style="text-align: justify; " />
<p><b>I. </b> <b>Preliminary</b></p>
<p style="text-align: justify; ">1. This submission presents preliminary comments by the Centre for Internet and Society, India ("CIS") on the Proposed Treaty for the Protection of Broadcasting Organizations ("Broadcast Treaty") being deliberated by the Standing Committee on Copyright and Related Rights ("SCCR") of the World Intellectual Property Organization ("WIPO").</p>
<p style="text-align: justify; ">2. These comments are submitted pursuant to the request of the Hon'ble Secretary, Ministry of Information and Broadcasting <a href="#_ftn1" name="_ftnref1">[1]</a>, Government of India ("MI&B") at the First Meeting of the Expert Committee to Discuss the Treaty for Broadcasting Organizations at SCCR, WIPO ("Expert Committee"), held on 02 September, 2014 at New Delhi, India, which CIS attended as a member.</p>
<p style="text-align: justify; ">3. CIS commends the MI&B for its efforts at seeking inputs from various stakeholders prior to the framing of India's response to the Broadcast Treaty. CIS is thankful for the opportunity to be a part of the Expert Committee. It is a pleasure and privilege to provide this submission in furtherance of the feedback process initiated at the First Meeting of the Expert Committee on 02 September, 2014</p>
<p style="text-align: justify; "><b>II. </b> <b>Overview</b></p>
<p style="text-align: justify; ">4. This submission is divided into two substantive parts- the first part of this submission <b>("Part 1")</b> presents an analysis on the need for the Broadcast Treaty and its Scope of Application; and the second part of this submission <b>("Part 2")</b> discusses the shift from a 'signals based approach' to a 'rights based approach'. Part 1 presents an analysis on the need for such a treaty vis-à-vis the rights of broadcasters and authors already protected under the Berne Convention for the Protection of Literary and Artistic Works, 1886 <b>("Berne Convention")</b>, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 <b>("The Rome Convention")</b>, the Brussels Convention Relating to the Distribution of Programme - Carrying Signals Transmitted by Satellite, 1974<b>("Brussels Convention")</b>, the WIPO Copyright Treaty, 1996<b>("WCT")</b>, the WIPO Performances and Phonograms Treaty,1996 <b>("WPPT")</b>, and the Beijing Treaty on Audiovisual Performances, 2012 <b>("The Beijing Treaty")</b>. In doing so, <i>first</i>, existing literature presented at the WIPO on the need for this treaty has been examined; <i>second</i>, provisions of the Broadcast Treaty have been compared with those in the earlier conventions; and <i>third</i>, the rights sought to be granted under the Broadcast Treaty have been examined to ascertain the need for possible additional lawyers of protection, when compared against those offered by earlier conventions.</p>
<p style="text-align: justify; ">5. Part 2<b> </b>examines the Broadcast Treaty to identify a shift from a 'signals based approach' to a 'rights based approach' In so doing in this part <i>first</i>, discussions at the WIPO General Assembly of 2007 on the appropriateness of a 'signals based approach' have been examined to support the claim that a "signals based approach" is indeed appropriate; <i>second, </i>the possible costs of a rights based approach have been identified and <i>third,</i> various provisions of the Broadcast Treaty have been examined to demonstrate an inconsistency with a 'signals based approach'.</p>
<p style="text-align: justify; "><b>III. </b> <b>Detailed Comments</b></p>
<p style="text-align: justify; "><b>Part 1.The Need for a Broadcast Treaty</b></p>
<p style="text-align: justify; "><b>(a) </b> <b>Literature Review</b></p>
<p style="text-align: justify; ">6. The Draft Non Paper on the Broadcast Treaty circulated by the WIPO<a href="#_ftn2" name="_ftnref2"><b>[2]</b></a> and the background brief prepared by certain WIPO Member States<a href="#_ftn3" name="_ftnref3"><b>[3]</b></a> says that this treaty is necessary in order to update international rules to keep pace with technological developments.</p>
<p style="text-align: justify; ">7. A study sanctioned by the WIPO in 2010 enumerates the different ways in which signal piracy can take place and the harmful effects it has on revenues of the broadcasting organisations.<a href="#_ftn4" name="_ftnref4">[4]</a> This study says that continued signal theft may result in dis-incentivizing broadcasting organisations from continuing their work which would in turn affect public interest adversely as important programmes would no longer be broadcast.<a href="#_ftn5" name="_ftnref5">[5]</a></p>
<p style="text-align: justify; ">8. The study also analyses how the Broadcast Treaty will positively affect different stakeholders like copyright holders and broadcasting organisations due to an additional layer of protection that it grants to them against signal theft and copyright infringement. <a href="#_ftn6" name="_ftnref6">[6]</a></p>
<p style="text-align: justify; ">9. However, the question of why the current protections provided to copyright holders and to broadcasting organisations under the Rome Convention, the Berne Convention and the Brussels Convention are <i>inadequate </i>when it comes to curbing unauthorized use of broadcast signals if they are implemented properly is still left unanswered. It has not been proved that the Broadcast Treaty fills any gaps left behind by the Berne Convention, the Rome Convention or the Brussels Convention.</p>
<p style="text-align: justify; ">10. The Broadcast Treaty is designed in essence, to combat problems with implementation that arose from the earlier treaties, <a href="#_ftn7" name="_ftnref7">[7]</a> and it is submitted that this justification does not hold water as it is not so much an argument for a new treaty as it is for better implementation of the international conventions that already exist. Therefore, CIS is of the opinion that the reasons provided so far for the need for the Broadcast Treaty do not support the claim made by the broadcasters that the Broadcast Treaty is necessary.</p>
<p style="text-align: justify; "><b>(b) </b> <b>Comparative Analysis</b></p>
<p style="text-align: justify; ">11. In this part we will go through the protections granted in the Broadcast Treaty and compare them with equivalent provisions in other international treaties and a detailed table is provided at the end of this document for reference.</p>
<p style="text-align: justify; ">12. The nine focus areas we will concentrate on are, the right of performance, the right of fixation, the right of communication to the public, the right of retransmission, reproduction, distribution, the protection of rights management information, the term of protection, and limitations and exceptions to protections.</p>
<p style="text-align: justify; ">13. The argument here is simply that the protections offered under the Broadcast Treaty are either unnecessary as the underlying right is already protected in earlier international conventions or that they are excessive and offer a higher level of protection than previously offered by international conventions, and therefore must be justified.</p>
<p style="text-align: justify; ">14. <i>Right of Performance: </i>Under the proposed Broadcast Treaty, broadcasting organisations have an exclusive right to authorize performances of their signals for commercial purposes in places available to the public.<a href="#_ftn8" name="_ftnref8">[8]</a> This right of public performance and of communication to the public of a performance with respect to dramatic or musical works rests with the copyright holder under the Berne Convention. <a href="#_ftn9" name="_ftnref9">[9]</a> The Rome Convention states that "protection provided for the performers shall possibly include the prevention of broadcasting and communication to the public without their consent of their performance except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation".<a href="#_ftn10" name="_ftnref10">[10]</a>Under the WPPT, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance.<a href="#_ftn11" name="_ftnref11">[11]</a> And under the Beijing Treaty, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of (1) their unfixed performances except where the performance is already a broadcast performance and (2) their performances fixed in audiovisual fixations.<a href="#_ftn12" name="_ftnref12">[12]</a></p>
<p style="text-align: justify; ">15. CIS therefore submits that the right of performance has been adequately granted to authors/ performers/ copyright h1olders under the earlier international conventions and that the proposed Broadcast Treaty only extends an unnecessary additional layer of protection over the same content.</p>
<p style="text-align: justify; ">16. <i>Right of Fixation: </i>The proposed Broadcast Treaty grants broadcasting organisations the exclusive right to authorize fixations of their broadcasts.<a href="#_ftn13" name="_ftnref13">[13]</a> As fixation is defined as an "embodiment of sounds or images or representations thereof from which they can be perceived reproduced or communicated through a device",<a href="#_ftn14" name="_ftnref14">[14]</a> this would realistically cover content underlying the signal as well. The Rome Convention states that the protection provided for performers by this convention possibly includes the preventing of fixation without their consent of their unfixed performances".<a href="#_ftn15" name="_ftnref15">[15]</a>Further broadcasting organisations already enjoy the right to authorize or prohibit the fixation of their broadcasts under the Rome Convention. <a href="#_ftn16" name="_ftnref16">[16]</a> The Brussels Convention limits this obligation to prevent distribution of signals in case of derived signals that are taken from signals which have already been distributed by a distributor for whom the emitted signals were intended. Derived signals are signals whose technical characteristics are modified whether or not there have been one or more intervening fixations. This allows for some limitation on the right of fixation granted by the Rome Convention.<a href="#_ftn17" name="_ftnref17">[17]</a> The WPPT provides performers with the right of authorizing the fixation of their unfixed performances.<a href="#_ftn18" name="_ftnref18">[18]</a>This is mirrored in the Beijing Treaty. <a href="#_ftn19" name="_ftnref19">[19]</a></p>
<p style="text-align: justify; ">17. Hence CIS submits that the right of fixation has already been adequately covered by international conventions, the provisions of the proposed Broadcast Treaty simply extend this right to possibly cover the content underlying the signal, this would add an extra layer of protection as performers and authors already are vested with a right to fixation under earlier international conventions and treaties, further, the granting of this right to broadcasters could potentially grant them control of content underlying their signals as well, and for these reasons the proposed provisions must be adequately justified.</p>
<p style="text-align: justify; ">18. <i>Right of Communication to Public:</i> The proposed Broadcast Treaty defines "communication to the public" as "making the transmissions… audible or visible."<a href="#_ftn20" name="_ftnref20">[20]</a> And guarantees the exclusive right to authorize the communication to the public of their broadcasts to broadcasting organisations through any means including over computer networks<a href="#_ftn21" name="_ftnref21">[21]</a> The right of communication to the public has also been guaranteed to authors of literary and artistic workers who can authorize the broadcasting of their works and communication of their work to the public by any means including rebroadcasting under the Berne Convention. <a href="#_ftn22" name="_ftnref22">[22]</a> The Rome Convention grants a similar right to broadcasting organisations when the broadcast is made in places accessible to the public for a fee, <a href="#_ftn23" name="_ftnref23">[23]</a>however, the Brussels Convention limits this right and excludes situations where the signals emitted by or on behalf of the originating organization are intended for direct reception from the satellite by the general public.<a href="#_ftn24" name="_ftnref24">[24]</a> Further, under the WCT, the right to authorize communication to the public is vested with authors of literary and artistic works,<a href="#_ftn25" name="_ftnref25">[25]</a> and under the WPPT performers enjoy a similar right to authorize broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance. <a href="#_ftn26" name="_ftnref26">[26]</a> In the Beijing Treaty, performers enjoy the exclusive rights of authorizing the broadcasting and communication to the public of both their unfixed performances except where the performance is already a broadcast performance.<a href="#_ftn27" name="_ftnref27">[27]</a>And their performances are fixed in audiovisual fixations. <a href="#_ftn28" name="_ftnref28">[28]</a></p>
<p style="text-align: justify; ">19. Therefore, CIS submits that the right to communicate to the public and even the right to broadcast are adequately guaranteed by the existing international conventions already, the proposed Broadcast Treaty, by vesting a similar right in broadcasting organisations, merely adds an extra layer of protection for the same and doesn't actually fill any existing gaps in the current international intellectual property regime. Further the extension of the right to cover communications made over computer networks is an additional right provided for under the treaty and must be adequately justified.</p>
<p style="text-align: justify; ">20. <i>Right of Retransmission: </i>Under the proposed Broadcast Treaty, broadcasting organisations enjoy the exclusive right of retransmission of their broadcast by any means including rebroadcasting, by wire or over computer networks, includes simultaneous retransmission or otherwise <a href="#_ftn29" name="_ftnref29">[29]</a> the right to authorize broadcasting of their works to the public including any communication to the public by wire or by rebroadcasting the broadcast of the work is vested with the authors of literary and artistic works in the Berne Convention, <a href="#_ftn30" name="_ftnref30">[30]</a> The Rome Convention already guarantees that broadcasting organisations have the right to authorize and prohibit the rebroadcasting of their broadcasts<a href="#_ftn31" name="_ftnref31">[31]</a> and the Brussels Convention <a href="#_ftn32" name="_ftnref32">[32]</a>enjoins contracting states to "take adequate measures to prevent the distribution of any Programme-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended on or from its territory".</p>
<p style="text-align: justify; ">21. Therefore, CIS submits that the right of retransmission was already well vested with broadcasting organisations and authors and the expansion of this right to include simultaneous retransmission, transmission over computer networks, cablecasting etc. under the proposed Broadcast Treaty must be adequately justified.</p>
<p style="text-align: justify; ">22. <i>Right of Reproduction:</i> The proposed Broadcast Treaty vests the right to authorize direct and indirect reproduction in any manner or form of fixations of their broadcasts with the broadcasting organization.<a href="#_ftn33" name="_ftnref33">[33]</a> The right to authorize reproduction of copyrighted work<a href="#_ftn34" name="_ftnref34">[34]</a> and the right to adaptation and alteration <a href="#_ftn35" name="_ftnref35">[35]</a> is granted to authors of literary and artistic works under the Berne Convention, the Rome Convention allows for the protections provided for performers to include the preventing of reproduction of a fixation of their performance if the original fixation is made without the consent or if the reproduction is made for purposes different from those for which consent was begot, the reproduction is made for purposes that aren't in accordance with Article 15, of a fixation of their performance,<a href="#_ftn36" name="_ftnref36">[36]</a> it further provides for broadcasting organisations to enjoy the exclusive right to authorize or prohibit the reproduction of fixations made without their consent of their broadcasts<a href="#_ftn37" name="_ftnref37">[37]</a> and for producers of phonograms to enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms,<a href="#_ftn38" name="_ftnref38">[38]</a> performers enjoy the exclusive right of authorizing direct or indirect reproduction of their performances fixed in phonograms in any manner or form under the WPPT, <a href="#_ftn39" name="_ftnref39">[39]</a> and producers of phonograms have the exclusive right of authorizing the direct or indirect reproduction of their phonograms in any manner or form under the WPPT.<a href="#_ftn40" name="_ftnref40">[40]</a>And lastly under the Beijing Treaty performers enjoy the exclusive right authorizing the direct or indirect reproduction of their performances fixed in audiovisual fixations in any manner or form.<a href="#_ftn41" name="_ftnref41">[41]</a></p>
<p style="text-align: justify; ">23. CIS therefore submits that the right of reproduction has vested with authors and performers and producers of phonograms under several international treaties, the extension of this right to broadcasting organisations adds another layer of protection thereof, but fulfills no need or gap in the existing international intellectual property framework, further, the granting of this right to broadcasters could potentially grant them control over content underlying their signals as well. CIS therefore believes that the inclusion of this right must be adequately justified.</p>
<p style="text-align: justify; ">24. <i>Right of Distribution: </i>Under the proposed Broadcast Treaty, broadcasting organisations enjoy the exclusive right to make available to the public, the originals and copies of the fixations in such a way that they can access them from a time and place chosen by them individually, <a href="#_ftn42" name="_ftnref42">[42]</a> in addition to making such a fixation available through sale or any other means of transfer of ownership.<a href="#_ftn43" name="_ftnref43">[43]</a>The WCT vests the right of distribution of artistic or literary works with their authors,<a href="#_ftn44" name="_ftnref44">[44]</a> performers enjoy an equivalent right under the WPPT, <a href="#_ftn45" name="_ftnref45">[45]</a> as do producers of phonograms,<a href="#_ftn46" name="_ftnref46">[46]</a> and lastly, performers enjoy the exclusive right of distribution of their performances in audiovisual fixations under the Beijing Treaty. <a href="#_ftn47" name="_ftnref47">[47]</a></p>
<p style="text-align: justify; ">25. Therefore, CIS submits that the right of distribution has been adequately protected by earlier conventions, the Broadcast Treaty, by extending this right to broadcasting organisations adds another layer of protection for the same right and doesn't necessarily fill any gaps in the international intellectual property framework.</p>
<p style="text-align: justify; ">26. <i>Protection of Rights Management Information("<b>RMI</b>"): </i>The proposed Broadcasting Treaty defines RMI as any 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.<a href="#_ftn48" name="_ftnref48">[48]</a> These RMI could be attached to 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) making available of a fixed broadcast or 5) a copy of a fixed broadcast.<a href="#_ftn49" name="_ftnref49">[49]</a> One alternative provides for an obligation on contracting parties to provide for "adequate and effective legal protection against unauthorized(a) decryption of an encrypted broadcast or circumvention of any technological protection measure ("TPM") having the same effect as encryption, (b) manufacture , importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast and (c) removal or alteration of any electronic RMI used for the application of the protection of broadcasting organization."<a href="#_ftn50" name="_ftnref50">[50]</a> Another alternative provides for the same protection only against "(a) unauthorized decryption of an encrypted broadcast, (b) removal or alternation of any electronic RMI for the application of the protection of the broadcasting organisations."<a href="#_ftn51" name="_ftnref51">[51]</a> Further one alternative also provides that states must ensure "adequate legal protection and effective legal remedies against the circumvention of effective technological measures used by broadcasting organisations in connection with the exercise of their rights under this treaty that restrict unauthorized acts in respect of their broadcasts" <a href="#_ftn52" name="_ftnref52">[52]</a>. While another provides for this in addition to a provision that states "without limiting the forgoing, contracting parties shall provide legal protection against (i) unauthorized decryption of an encrypted broadcast signal and (ii) removal or alternation of any electronic RMI relevant for the application of the protection of the broadcasting organisations." <a href="#_ftn53" name="_ftnref53">[53]</a></p>
<p style="text-align: justify; ">27. The definition of RMI has been adopted from earlier conventions such as WCT<a href="#_ftn54" name="_ftnref54">[54]</a> and WPPT<a href="#_ftn55" name="_ftnref55">[55]</a> except for the inclusion of RMI attached to pre-broadcast signal. Under the WCT <a href="#_ftn56" name="_ftnref56">[56]</a> and the WPPT<a href="#_ftn57" name="_ftnref57">[57]</a>, contracting parties have an obligation to provide for legal protection and effective legal remedies against circumvention of effective technological measures used by authors or performers or producers of phonograms in connection with exercise of their rights under these treaties to restrict the unauthorized and unlawful use of their work. Under the WCT<a href="#_ftn58" name="_ftnref58">[58]</a> and the WPPT,<a href="#_ftn59" name="_ftnref59">[59]</a> contracting parties have an obligation to provide for "adequate and effective legal remedies against any person knowingly performing (i) removal or alteration of any electronic RMI without authority or (ii) distribution or import for distribution or broadcast or communication to the public without authority works or copies of works knowing that electronic RMI has been removed or altered without authority knowing or with respect to civil remedies having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right" under WCT, WPPT or the Berne Convention.<b> </b> Similar provisions are made for the protection of RMI attached to audiovisual fixations under the Beijing Treaty <a href="#_ftn60" name="_ftnref60">[60]</a> under Article 16(2) which defines RMI as information that 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.</p>
<p style="text-align: justify; ">28. CIS therefore submits that the provisions proposed in the Broadcast Treaty provide for a protection of RMI that is significantly higher than protection of RMI in earlier convention, not only does it now extend to pre broadcast signals, retransmission, transmissions following fixation of the broadcast making available of a fixed broadcasts or a copy of a fixed broadcasts, it also exists to decryption and encryption of these signals. Therefore, It is important that such extended protections need to be adequately justified.</p>
<p style="text-align: justify; ">29. <i>Term of Protection: </i>The proposed Broadcast Treaty provides for a term of protection that lasts for a minimum of 20-50 years computed from the end of the year in which the broadcast signal was broadcast.<a href="#_ftn61" name="_ftnref61">[61]</a> The Berne Convention provides for a term of protection "life of the author and fifty years after his death" in case of literary and artistic works and 50 years after the work has been made available to the public or in case it hasn't been made available to public, fifty years after the making of the work in case of cinematographic works. <a href="#_ftn62" name="_ftnref62">[62]</a> Under the Rome Convention the term of protection is calculated as a minimum of 20 years from when the broadcast first took place for broadcasts.<a href="#_ftn63" name="_ftnref63">[63]</a> Under the WPPT, the term of protection granted to performers is at least 50 years from the end of the year in which the performance was fixed in a phonogram. The term of protection granted for producers is at least 50 years calculated from the end of the year in which the phonogram was published, if unpublished, 50 years from end of the year in which fixation of phonogram was made.<a href="#_ftn64" name="_ftnref64">[64]</a> And under the Beijing Treaty, term of protection to be granted to performers is at least until the end of a period of 50 years from the end of the year in which the performance was fixed. <a href="#_ftn65" name="_ftnref65">[65]</a></p>
<p style="text-align: justify; ">30. CIS therefore submits that the term of protection envisioned under the Broadcast Treaty extends protection to copyrighted works as it is not calculated from when the first broadcast of the signal took place, but from when the last broadcast took place, this could potentially lead to ever-greening of copyright protections as broadcasting organisations could simply renew their rights by simply broadcasting their signals again and again. Clearly terms of protection already envisioned under other international conventions protected any content underlying the signal adequately; this provision simply provides an additional layer of protection and doesn't really fill any gaps in the current international intellectual property framework.<i> </i></p>
<p style="text-align: justify; ">31. <i>Limitations and Exceptions:</i> The proposed Broadcast Treaty provided for exceptions and limitations for" (i) private use, (ii) use of short excerpts in connection with reporting of current events , (iii) use solely for purposes of education and scientific research and (iv) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts."<a href="#_ftn66" name="_ftnref66">[66]</a> And for the same or other limitations as are applied in connection with copyrighted works as long as they are confined to special cases that do not conflict with normal exploitation and do not unreasonably prejudice the legitimate interests of the broadcasting organization. Under an alternative, the limitations and exceptions for protection of broadcasting signals can be similar to those for protection of literary and artistic works, provided they are confined to certain special cases that do not conflict with normal exploitation of work that doesn't unreasonably prejudice the legitimate interests of the broadcasting organization.<a href="#_ftn67" name="_ftnref67">[67]</a> Under a further alternative, limitations and exceptions may extend to all this but further, exceptions of (a) private use, (b) excerpts in connection with reporting of current events (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts , (d) solely for the purpose of teaching or scientific research, (e) use to promote access by persons with impaired sight or hearing, learning disabilities or other special needs, (f) use by libraries , archivists or educational institutions to make publicly available copies of works that are protected by any rights of the broadcasting organization for preservation, education or research And (g) use of any kind in any manner or form of any part of a broadcast where the program or any part of it which is subject of the transmission is not protected by copyright or any related right, is presumed to constitute special cases that don't conflict with normal exploitation of the work and don't unreasonably prejudice the legitimate interests of the rights holder.<a href="#_ftn68" name="_ftnref68">[68]</a><i> </i></p>
<p style="text-align: justify; ">32. The Berne Convention first laid down the "three step test" which stated that "countries of the Union can choose to permit the reproduction of such works in special cases, provided that such reproduction doesn't conflict with a normal exploitation of the work and doesn't unreasonably prejudice the legitimate interests of the author"<a href="#_ftn69" name="_ftnref69">[69]</a>. Under the Rome Convention these exceptions could include (a) private use, (b) use of short excerpts in connection with reporting of current events, (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts and d) use solely for the purposes of teaching or scientific research, limitations on protection of copyright in literary and artistic works or compulsory licenses to an extent that is compatible with this convention keeping in mind the three step test <a href="#_ftn70" name="_ftnref70">[70]</a> Under the Brussels Convention limitations and exceptions to protection of signals include (i) short excerpts of the programme consists of reports of current events , but only to the extent justified by the informatory purpose of such excerpts, (ii) quotations, or short excerpts of the programme carried by the emitted signal, provided that such quotations are compatible with fair practice and are justified by the informatory purpose of such quotations or (iii) the distribution is solely for the purpose of teaching including teaching in the framework of adult education or scientific research in a developing country.<a href="#_ftn71" name="_ftnref71">[71]</a> Further, contracting states are not limited from applying domestic law to prevent abuses of monopoly in this regard.<a href="#_ftn72" name="_ftnref72">[72]</a> The WCT follows the three step test formula for literary and artistic work<a href="#_ftn73" name="_ftnref73">[73]</a> and the WPPT allows for similar limitations for protection of performers and producers of phonograms keeping in mind the three step test.<a href="#_ftn74" name="_ftnref74">[74]</a> Similar provisions exist under the Beijing Treaty as well.<a href="#_ftn75" name="_ftnref75">[75]</a><i> </i></p>
<p style="text-align: justify; ">33. CIS therefore submits that the limitations and exceptions to protections under the Broadcast Treaty could possibly be narrower than those in other international conventions. CIS is of the opinion that such a narrowing of limitations and exceptions must be justified adequately.<i></i></p>
<p>34.<i></i></p>
<p><b>Table Comparing Protections Provided under Broadcast Treaty with Protections Provided in Earlier International Conventions</b></p>
<table align="left" class="grid listing">
<tbody>
<tr>
<td>
<p><b>Protection</b></p>
</td>
<td>
<p><b>Proposed Broadcast Treaty</b></p>
</td>
<td>
<p><b>Berne Convention,</b></p>
<p><b>1884</b></p>
</td>
<td>
<p><b>Rome Convention,</b></p>
<p><b>1961</b></p>
</td>
<td>
<p><b>Brussels Convention,</b></p>
<p><b>1974</b></p>
</td>
<td>
<p><b>WIPO Copyright Treaty,</b></p>
<p><b>1996</b></p>
</td>
<td>
<p><b>WIPO Performances and Phonograms Treaty, 1996</b></p>
</td>
<td>
<p><b>Beijing Treaty on Audiovisual Performances, 2012</b></p>
</td>
</tr>
<tr>
<td>
<p><b>Performance </b></p>
</td>
<td>
<p>Article 9 (1) (ii) (Alternative A), broadcasting organisations have an exclusive right to authorize performances of their signals for commercial purposes in places available to the public.<b></b></p>
</td>
<td>
<p>Article11, the right of public performance and of communication to the public of a performance with respect to dramatic or musical works rests with the copyright holder</p>
</td>
<td>
<p>Article 7(1) (a), protection provided for the performers shall include the possibility of preventing the broadcasting and communication to the public without their consent of their performance except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation.</p>
</td>
<td></td>
<td></td>
<td>
<p>Article 6 (i), Performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance</p>
</td>
<td>
<p>Article 6(i) performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance.</p>
<p>Article 11, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations.</p>
</td>
</tr>
<tr>
<td>
<p><b>Fixation</b></p>
</td>
<td>
<p>Article 9 (1) (i) (Alternative B), broadcasting organisations have the exclusive right to authorize fixation of their broadcasts.</p>
<p>Article 5(e) (Alternative A) and 5(f) (Alternative B),</p>
<p>Fixation is defined as an embodiment of sounds or images or representations thereof from which they can be perceived, reproduced or communicated through a device. This would realistically cover content in addition to the signal.</p>
</td>
<td>
<p><b> </b></p>
</td>
<td>
<p>Article 7(1) (b), the protection provided for performers by this convention includes the possibility of preventing the fixation without their consent of their unfixed performances.</p>
<p>Article 13(b).</p>
<p>Broadcasting organisations enjoy the right to authorize or prohibit the fixation of their broadcasts.</p>
</td>
<td>
<p>Article 2(3), the obligation to prevent distribution of signals by any distributor for whom the signal emitted to or pasting through the satellite is not intended will not apply for the distribution of derived signals that are taken from signals which have already been distributed by a distributor for whom the emitted signals were intended. Derived signals are signals whose technical characteristics are modified whether or not there have been one or more intervening fixations. (Article 1(v)).</p>
</td>
<td></td>
<td>
<p>Article 6(ii), performers enjoy the exclusive right of authorizing the fixation of their unfixed performances.</p>
</td>
<td>
<p>Article 6(ii), performers enjoy the exclusive right of authorizing the fixation of their unfixed performances.</p>
</td>
</tr>
<tr>
<td>
<p><b>Communication to the Public</b></p>
</td>
<td>
<p>Article 9(1) (iv) (Alternative B), broadcasting organisations have the exclusive right to authorize the communication to the public of their broadcasts.</p>
<p>Article 5 (e) (Alternative B), communication to the public can be defined as "making the transmissions… audible or visible."</p>
</td>
<td>
<p>Article 11 bis, authors of literary and artistic works enjoy the exclusive right of authorizing the broadcasting of their works and of communication thereof to the public by any means of wireless diffusion of signs, sounds or images. And rebroadcasting.</p>
</td>
<td>
<p>Article 13(d),</p>
<p>Broadcasting organisations enjoy the right to authorize or prohibit the communication to the public of their broadcasts if it is made in places accessible to the public for a fee.</p>
</td>
<td>
<p>Article 3, the convention doesn't apply when signals emitted by or on behalf of the originating organization are intended for direct reception from the satellite by the general public.</p>
</td>
<td>
<p>Article 8, authors of literary and artistic works enjoy the exclusive right of authorizing any communication to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them</p>
</td>
<td>
<p>Article 6 (i), performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance</p>
</td>
<td>
<p>Article 6(i) performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance.</p>
<p>Article 11, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations.</p>
</td>
</tr>
<tr>
<td>
<p><b>Retransmission</b></p>
</td>
<td>
<p>Article 5 (d) (Alternative A) read with Article 9(1) (i) (Alternative A) and 9(1) (iii) (Alternative B), <br /> broadcasting organisations enjoy the exclusive right of retransmission of their broadcast by any means including rebroadcasting , by wire or over computer networks, includes simultaneous retransmission or otherwise</p>
</td>
<td>
<p>Article 11 bis, authors of literary and artistic works enjoy the exclusive right of authorizing the broadcasting of their works… to the public, and any communication to the public by wire or by rebroadcasting of the broadcast of the work.</p>
</td>
<td>
<p>Article 13(a),</p>
<p>Broadcasting organisations enjoy the right to authorize or prohibit the rebroadcasting of their broadcasts.</p>
</td>
<td>
<p>Article 2(1), contracting states are required to take adequate measures to prevent the distribution of any programme-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended on or from its territory.</p>
</td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Reproduction</b></p>
</td>
<td>
<p>Article 9(1) (ii) (Alternative B), broadcasting organisations have the exclusive rights to authorize direct and indirect reproduction in any manner or form of fixations of their broadcasts.</p>
</td>
<td>
<p>Article 9, the right of reproduction is vested with the authors of the copyrighted work.</p>
<p>Article 12, the right of adaptation and other alteration is vested in the copyright holder/ author.<b></b></p>
</td>
<td>
<p>Article 7 (1) (c), the protection provided for performers under this convention includes the possibility of preventing the reproduction of a fixation of their performance if the original fixation is made without their consent or if the reproduction is made for purposes different from those for which consent was begot, the reproduction is made for purposes that aren't in accordance with Article 15, of a fixation of their performance.</p>
<p>Article 13(c),</p>
<p>Broadcasting organisations enjoy the right to authorize or prohibit the reproduction of fixations made without their consent of their broadcasts.</p>
<p>Articles 10, producers of phonograms enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.</p>
</td>
<td></td>
<td></td>
<td>
<p>Article 7, performers enjoy the exclusive right of authorizing direct or indirect reproduction of their performances fixed in phonograms in any manner or form.</p>
<p>Articles 11, producers of phonograms have the exclusive right of authorizing the direct or indirect reproduction of their phonograms in any manner or form.</p>
</td>
<td>
<p>Article 7, performers enjoy the exclusive right authorizing the direct or indirect reproduction of their performances fixed in audiovisual fixations in any manner or form.</p>
</td>
</tr>
<tr>
<td>
<p><b>Distribution</b></p>
</td>
<td>
<p>Article 9 (1) (v) (Alternative B), broadcasting organisations enjoy the exclusive right to make available to the public, the original and copies of fixations of their broadcasts in such a way that the members of the public may access them from a place and time individually as chosen by them. Article 9 (1) (vii) (Alternative B), they have the exclusive right to make available to the public of the originals and copies of their broadcasts through sale or other transfer of ownership.</p>
</td>
<td></td>
<td></td>
<td></td>
<td>
<p>Article 6,</p>
<p>Authors of literary and artistic works enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfers of ownership.</p>
<p>Article 8, authors of literary and artistic works enjoy the exclusive right of authorizing any communication to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.</p>
</td>
<td>
<p>Article 8, performers enjoy the exclusive right of authorizing the making available to the public of the original and copies of their performances fixed in phonograms through sale or other transfer of ownership. This doesn't affect the freedom of contracting parties to determine conditions to exhaustion of this right after the first sale or other transfer of ownership (Article 8 (ii)).</p>
<p>Article 10, performers have the exclusive right to authorize the making available to the public of their performances fixed in phonograms , by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.</p>
<p>Article 12 and 14, this right extends to producers of phonograms.</p>
</td>
<td>
<p>Article 8 (1), performers enjoy the exclusive rights of authorizing the making available to the public of original and copies of their performances fixed in audiovisual fixations through sale or other transfer of ownership.</p>
<p>Article 8(2) contracting parties have the freedom to determine conditions under which exhaustion of this right applies after first sale or other transfer of ownership of the original or a copy of a fixed performance with the authorization of the performer.</p>
</td>
</tr>
<tr>
<td>
<p><b>rights management information</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (h), "rights management information" ("RMI") is defined 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.</p>
<p>Article 13(2), RMI is any information of the abovementioned nature that is associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) making available of a fixed broadcast or 5) a copy of a fixed broadcast.</p>
<p>Article 12, Alternative A1, contracting parties shall provide adequate and effective legal protection against unauthorized(a) decryption of an encrypted broadcast or circumvention of any technological protection measure ("TPM") having the same effect as encryption, (b) manufacture , importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast and (c) removal or alteration of any electronic RMI used for the application of the protection of broadcasting organization. Alternative A2, contracting parties shall provide adequate and effective legal protection against (a) unauthorized decryption of an encrypted broadcast, (b) removal or alternation of any electronic RMI for the application of the protection of the broadcasting organisations.</p>
<p>Alternative B 1 and B2, contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures used by broadcasting organisations in connection with the exercise of their rights under this treaty that restrict unauthorized acts in respect of their broadcasts. Alternative B2 (2), without limiting the forgoing, contracting parties shall provide legal protection against (i) unauthorized decryption of an encrypted broadcast signal and (ii) removal or alternation of any electronic RMI relevant for the application of the protection of the broadcasting organisations.</p>
<p>Article 13 (1), contracting parties must provide for legal remedies against a violation of this right done knowingly and without proper authority.</p>
</td>
<td></td>
<td></td>
<td></td>
<td>
<p>Article 12(2), "rights management information" is defined in a similar way as it is in the Broadcast Treaty, excluding however, the RMI attached to pre-broadcast signal.</p>
<p>Article 11, contracting parties have an obligation to provide for legal protection and effective legal remedies against circumvention of effective technological measures used by the authors in connection with exercise of their rights.</p>
<p>Article 12 (1), contracting parties shall provide adequate and effective legal remedies against any person knowingly performing (i) removal or alteration of any electronic RMI without authority or (ii) distribute or import for distribution or broadcast or communicate to the public without authority works or copies of works knowing that electronic RMI has been removed or altered without authority knowing or with respect to civil remedies having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right under WCT or the Berne Convention.</p>
</td>
<td>
<p>Article 19(2): "rights management information" is defined in a similar way as it is in the Broadcast Treaty.</p>
<p>Article 18, contracting parties are obligated to provide adequate legal protection and effective legal remedies against circumvention of effective technological measures that are used by performers or producers of phonograms in connection with their rights under this treaty.</p>
<p>Article 19, contracting parties shall provide for adequate and effective legal remedies against any person knowingly (i) removing or altering the electronic RMI without authority or (ii) distributing, importing for distribution, broadcasting or communicating or making available to public without authority performances, copies of fixed performances or phonograms knowing that electronic RMI has been removed or altered without authority knowing, or with respect to civil remedies, having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right covered by this treaty.</p>
</td>
<td>
<p>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.</p>
<p>Article 15, contracting parties have a duty to provide for adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers in connection with the exercise of their rights under this treaty and that restricts acts in respect of their performances which are not authorized by the performers concerned or permitted by the law, Article 16 (1), contracting parties shall provide adequate and effective legal remedies against any person knowingly (i) removing or altering any electronic EMI without authority (ii) distributing, importing for distribution, broadcasting , communication or making available to public, without authority, performances or copies of performances fixed in audiovisual fixations knowing that electronic rights management information has been removed or altered without authority, knowing or with respect to civil remedies, having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right covered by this treaty.</p>
</td>
</tr>
<tr>
<td>
<p><b>Term of Protection</b></p>
</td>
<td>
<p>Article 11 (Alternative A), the term of Protection lasts for a minimum of 20-50 years computed from the end of the year in which the broadcast signal was broadcast.</p>
</td>
<td>
<p>Article 7 (1), term of protection is the life of the author and fifty years after his death. In case of cinematic works, 50 years after the work has been made available to the public or in case it hasn't been made available to public, fifty years after the making of the work.</p>
</td>
<td>
<p>Article 14(c),</p>
<p>The term of protection is calculated as a minimum of 20 years from when the broadcast first took place for broadcasts.</p>
<p>It shall last for a period of 20 years computed from the end of the year in which the performance took place for performances not incorporated in phonograms (Article 14 (b)), and Article 14(c), for twenty years from the end of the year in which the fixation was made for phonograms and performances incorporated therein,</p>
</td>
<td></td>
<td>
<p>Article 9, in respect of photographic works, the contracting parties shall not apply the provisions of Article 7(4) of the Berne Convention</p>
</td>
<td>
<p>Article 17, the term of protection granted to performers is at least 50 years from the end of the year in which the performance was fixed in a phonogram. The term of protection granted for producers is at least 50 years calculated from the end of the year in which the phonogram was published, if unpublished, 50 years from end of the year in which fixation of phonogram was made.</p>
</td>
<td>
<p>Article 14, term of protection to be granted to performers under this treaty shall last at least until the end of a period of 50 years from the end of the year in which the performance was fixed.</p>
</td>
</tr>
<tr>
<td>
<p><b>Limitations and Exceptions</b></p>
</td>
<td>
<p>Article 10, Alternative A, contracting states may provide for exceptions for (i) private use, (ii) use of short excerpts in connection with reporting of current events , (iii) use solely for purposes of education and scientific research and (iv) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts. And for the same or other limitations as are applied in connection with copyrighted works as long as they are confined to special cases that do not conflict with normal exploitation and do not unreasonably prejudice the legitimate interests of the broadcasting organization.</p>
<p>Alternative B and C, contracting parties may provide for the same kinds of limitations or exceptions for protection of broadcasting organisations as they provide for in protection of copyright in literary and artistic works and protection of literary works. They shall confine limitations to rights provided for in this treaty to certain special cases that do not conflict with normal exploitation of work that doesn't unreasonably prejudice the legitimate interests of the broadcasting organization.</p>
<p>Alternative C(2)(a), exceptions of (a) private use, (b) excerpts in connection with reporting of current events (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts , (d) solely for the purpose of teaching or scientific research, (e) use to promote access by persons with impaired sight or hearing, learning disabilities or other special needs, (f) use by libraries , archivists or educational institutions to make publicly available copies of works that are protected by any rights of the broadcasting organization for preservation, education or research. And (g) use of any kind in any manner or form of any part of a broadcast where the program or any part of it which is subject of the transmission is not protected by copyright or any related right, are presumed to constitute special cases that don't conflict with normal exploitation of the work and don't unreasonably prejudice the legitimate interests of the rights holder.</p>
</td>
<td>
<p>Article 9, countries of the union can choose to permit the reproduction of such works in special cases, provided that such reproduction doesn't conflict with a normal exploitation of the work and doesn't unreasonably prejudice the legitimate interests of the author.</p>
</td>
<td>
<p>Article 15 (1), contracting states may provide for exceptions to the protections guaranteed under this convention as regards (a) private use, (b) use of short excerpts in connection with reporting of current events, (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts and d) use solely for the purposes of teaching or scientific research. Article 15 (2), contracting states may provide for limitations that mirror limitations on protection of copyright in literary and artistic works or compulsory licenses to an extent that is compatible with this convention.</p>
</td>
<td>
<p>Article 4, the contracting states are not obliged to prevent the distribution of signals by a distributor for whom the signal is not intended if (i) it carries short excerpts of the programme carried by the emitted signal, consisting of reports of current events , but only to the extent justified by the informatory purpose of such excerpts, (ii) quotations, or short excerpts of the programme carried by the emitted signal, provided that such quotations are compatible with fair practice and are justified by the informatory purpose of such quotations or (iii) the distribution is solely for the purpose of teaching including teaching in the framework of adult education or scientific research in a developing country.</p>
<p>Further, under Article 7, contracting states are not limited from applying domestic law to prevent abuses of monopoly in this regard.</p>
</td>
<td>
<p>Article 10, contracting parties may provide for limitations or exceptions to rights granted to authors under this treaty in special cases that do not conflict with normal exploitation of work and do not unreasonably prejudice the legitimate interests of the author via national legislation.</p>
</td>
<td>
<p>Article 16, contracting parties can provide for the same kinds of limitations or exceptions with regard to protection of performers and producers of phonograms as they provide for in their national legislation to the protection of copyright in literary and artistic works. Article 16 (ii), contracting parties shall confine limitations and exceptions to rights to certain special cases which do not conflict with a normal exploitation of the performance or phonogram and do not unreasonably prejudice the legitimate interests of the performer or of the producer of the phonogram.</p>
</td>
<td>
<p>Article 13(1), contracting parties may provide for the same kinds of limitations and exceptions with regard to protection of performers as they provide for in their national legislation in connection with the protection of copyright in literary and artistic works.</p>
<p>Article 13(2), these limitations or exceptions must be confined to certain special cases which do not conflict with normal exploitation of the performance and do not unreasonably prejudice the legitimate interests of the performer.</p>
</td>
</tr>
</tbody>
</table>
<p style="text-align: justify; ">35. In addition to this, the proposed Broadcast Treaty, broadcasting/cablecasting organisations now have certain rights<i> </i>that they find no parallel in other international conventions such as rights to pre broadcasting signals<a href="#_ftn76" name="_ftnref76">[76]</a> etc., the necessity for the inclusion of these rights is yet to be proven.</p>
<p style="text-align: justify; "><b>(c) </b> <b>Analysis and Conclusions</b></p>
<p style="text-align: justify; ">36. CIS is of the opinion that that a higher level of protection is offered to the broadcasting organisations in the Broadcasting Treaty simply because they now have rights to authorize public performances, rights to authorize direct and indirect reproduction of their fixations, right to communication to the public and right to resale, rights that fall under the scope of rights already granted to copyright holders in the Berne Convention. <a href="#_ftn77" name="_ftnref77">[77]</a> Therefore anyone hoping to use copyrighted material that has been broadcast will have to obtain authorization from the broadcasting organisations in addition to the author/performer.<a href="#_ftn78" name="_ftnref78">[78]</a></p>
<p style="text-align: justify; ">37. It can be observed from the above discussion that certain rights of broadcasting organisations with regard to signal theft are already protected under the Berne Convention, the Rome Convention and the Brussels Convention. Therefore, broadcasting organisations and copyright holders already have recourse under these conventions to combat certain kinds of signal theft.</p>
<p style="text-align: justify; ">38. Hence, CIS believes that any justification provided for the proposed Broadcast Treaty must explain why these provisions are not enough either through impact assessment or by enumerating in clear terms why additional protections are necessary for protection against signal theft, neither of which has been done by any study put forward by the WIPO to date.</p>
<p style="text-align: justify; ">39. CIS is therefore of the opinion that the WIPO should undertake a further impact assessment study or a theoretical report outlining the need for the treaty and justifying the introduction of an additional layer of protections against signal theft.</p>
<p style="text-align: justify; "><b>Part 2: Shift from Signals Based Approach to Rights Based Approach</b></p>
<p style="text-align: justify; "><b>(a) </b> <b>Need for a Signals-Based Approach</b></p>
<p style="text-align: justify; ">40. The WIPO General Assembly decided in 2007 that the focus of the Broadcast Treaty should be the piracy of signals which harms broadcasting organisations as they invest heavily in the production of these signals and therefore have a legitimate interest in the issue of unauthorized use of these signals. <a href="#_ftn79" name="_ftnref79">[79]</a></p>
<p style="text-align: justify; ">41. It further decided that the protections granted by the Broadcast Treaty should not extended to the content carried by the signals as this would amount to granting those rights to the broadcasting organisations that have already been granted to the copyright holders under the Berne Convention and the Rome Convention.<a href="#_ftn80" name="_ftnref80">[80]</a> This was done keeping in mind especially that protections granted by the Broadcast Treaty should not extend to orphan works or works that are already in the public domain so as to not curb freedom of expression. <a href="#_ftn81" name="_ftnref81">[81]</a></p>
<p style="text-align: justify; ">42. CIS believes that the decision to frame the treaty along a signals based approach was taken keeping in mind the pitfalls of a rights based approach and with an intention to avoid harming legitimate and fair use of copyrighted material and is therefore, a well-considered decision which must be adhered to.</p>
<p style="text-align: justify; "><b>(b) </b> <b>Costs of a Rights Based Approach</b></p>
<p style="text-align: justify; ">43. The granting of these rights could act against public interest and curb freedom of speech.<a href="#_ftn82" name="_ftnref82">[82]</a></p>
<p style="text-align: justify; ">44. The study sanctioned by WIPO states that the Broadcast Treaty due to its limitations on retransmission of signals, reproduction, distribution, fixation and post fixation uses protects the methods of content transmission regardless of the content but doesn't adhere strictly to a signals based approach as the language of the treaty focuses on the rights of the broadcasting organization that often goes above and beyond mere signal theft. <a href="#_ftn83" name="_ftnref83">[83]</a></p>
<p style="text-align: justify; ">45. CIS believes that the direct result of this is that it will increase costs for the acquisition of the material underlying the signal. It will disadvantage those who would use the content underlying the broadcast signal for legal purposes such as fair use or personal reproduction because they will not have to approach not just the author/ the performer/ the copyright holder, but also the broadcasting organization unless a national law is put in place protecting the rights of the audience/consumer.<a href="#_ftn84" name="_ftnref84">[84]</a></p>
<p style="text-align: justify; ">46. CIS therefore believes that the shift to a rights based approach is harmful to legitimate use of copyrighted works and free speech and must be avoided in the framing of the treaty.</p>
<p style="text-align: justify; "><b>(c) </b> <b>Shift to a Rights Based Approach</b></p>
<p style="text-align: justify; ">47. While it could be argued that the broadcast treaty still continues the signals based approach as mandated by the 2007 WIPO General Assembly because the term "broadcast" is defined in Article 5 (b) (Alternative A) of the treaty as transmission of a signal, or transmission of a set of signals by wireless carrying a specific program for reception by the general public excluding signals over computer networks (Alternative to (b)). <a href="#_ftn85" name="_ftnref85">[85]</a>CIS believes that there is in fact a palpable shift away from the signals based approach to an approach focused on providing broadcasters with exclusive rights in the language of the treaty.</p>
<p style="text-align: justify; ">48. The fact that "communication to the public" could be defined as "making the transmissions… audible or visible." as per Article 5 (e) (Alternative B) indicates an approach that focuses on content rather than mere signals. <a href="#_ftn86" name="_ftnref86">[86]</a> Further, the term "embodiment" would realistically cover content as well as signal according to Article 5(e) of Alternative A and 5(f) of Alternative B. <a href="#_ftn87" name="_ftnref87">[87]</a></p>
<p style="text-align: justify; ">49. Even further, the treaty goes on to grant rights to broadcasting organisations that fall within the scope of rights are already granted to the copyright holder, such as the right of direct or indirect reproduction of the copyrighted work<a href="#_ftn88" name="_ftnref88">[88]</a> and right of authorizing performances<a href="#_ftn89" name="_ftnref89">[89]</a>.</p>
<p style="text-align: justify; ">50. Furthermore, the Broadcast Treaty extends these rights with regard to term of protection<a href="#_ftn90" name="_ftnref90">[90]</a> and with regard to works that are already in the public domain or orphan works.<a href="#_ftn91" name="_ftnref91">[91]</a></p>
<p style="text-align: justify; ">51. CIS therefore believes that the subtle shift in the language of the treaty indicates a shift from a signals based approach to a rights based approach, one that is not only against the mandate of the 2007 General Assembly, but also one that provides broadcasters with an extra layer of protection through these rights that were so far only granted to authors of the content under the Berne Convention and the Rome Convention.</p>
<p style="text-align: justify; ">52. As proved earlier<a href="#_ftn92" name="_ftnref92">[92]</a> no well justified reasons have been provided so far for the necessity of these provisions or indeed this treaty, and therefore CIS believes that the WIPO consider conducting impact assessment studies and releasing a report outlining in clear terms why the provisions that currently exist in the earlier conventions have failed to protect against signal theft and why it is necessary for the Broadcast Treaty to contain this additional layer of protection granted through these rights to protect against signal piracy.</p>
<p style="text-align: justify; ">53. For all these reasons, CIS believes that the WIPO should restrict the proposed Broadcast Treaty to a signals based approach.</p>
<p style="text-align: justify; "><b>IV. </b> <b>Concluding Observations</b></p>
<p style="text-align: justify; ">54. The Centre for Internet and Society welcomes the opportunity to comment on the proposed Broadcast Treaty and commends the Ministry of Human Resource Development, Government of India for its initiative in seeking inputs from Stakeholders.</p>
<p style="text-align: justify; ">55. To that end, reiterating its commitment to the values of access to knowledge, freedom of information, equality, justice, protection of general public interest and safeguarding India's national interest at the international level, the Centre for Internet and Society presents the following concluding observations:</p>
<p style="text-align: justify; ">a) That the proposed Broadcast Treaty be restricted entirely to a signal based approach, in consonance with the mandate of the 2007 WIPO General Assembly.</p>
<p style="text-align: justify; ">b) That a Preamble be inserted forthwith to clearly lay out the intention of the parties and the scope, objectives and application of this treaty.</p>
<p style="text-align: justify; ">c) That certain definitions be suitably modified, as discussed in the preceding sections of these comments.</p>
<p style="text-align: justify; ">d) That the rights of broadcasting organizations be suitably modified so as to not curtail access to information.</p>
<p style="text-align: justify; ">e) That the limitations and exceptions be made mandatory and not subject to the same tests as those understood in copyright law.</p>
<p style="text-align: justify; ">f) That technological protection measures be deleted, so as to ensure the protection of the public domain.</p>
<p style="text-align: justify; ">The Centre for Internet and Society would be willing discuss these submissions with the Ministry of Information and Broadcasting, the Ministry of Human Resource Development and the Department of Industrial Policy and Promotion, Government of India; supplement these with further submissions if necessary and offer any other assistance towards the efforts at developing a Broadcast Treaty that would be most beneficial to the protection and promotion of access to knowledge and India's national interests.</p>
<div><br clear="all" />
<hr align="left" size="1" width="33%" />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> <i>See</i> ¶ 12 of the Amended Minutes of the First Meeting of Expert Committee to discuss draft treaty for Broadcasting Organization at SCCR, WIPO held on 2.9.2014 (sic.).</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> <i>See</i> the Draft Non-Paper on the WIPO Treaty on the Protection of Broadcasting Organisations, Available at: <a href="http://www.wipo.int/edocs/mdocs/copyright/fr/sccr_s1/sccr_s1_www_75352.doc"> http://www.wipo.int/edocs/mdocs/copyright/fr/sccr_s1/sccr_s1_www_75352.doc </a> (Last Accessed: 19/11/14).</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> See Also WIPO Background Brief, Available at: <a href="http://www.wipo.int/pressroom/en/briefs/broadcasting.html">http://www.wipo.int/pressroom/en/briefs/broadcasting.html</a> (Last Accessed: 19/11/14).</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part II: Unauthorized Access to Broadcast Content- Cause and Effects: A Global Overview, SCCR 20<sup>th</sup> Session, Geneva June 21-24, 2010, SCCR/20/2Rev.</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21<sup>st</sup> Session, Geneva November 8-12, 2010,SCCR/21/2.</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21<sup>st</sup> Session, Geneva November 8-12, 2010,SCCR/21/2.</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21<sup>st</sup> Session, Geneva November 8-12, 2010, SCCR/21/2; the study posits the idea that it would be easier for broadcasters to enforce their rights and catch instances of unauthorized use than it would be for individual copyright holders as a justification.</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> Article 9 (1) (ii) (Alternative A), the Broadcast Treaty.</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> Article11, the Berne Convention for the Protection of Literary and Artistic Works, 1886 <b>("Berne Convention").</b></p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> Article 7(1) (a), International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 <b>("Rome Convention")</b>.</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> Article 6(i), the WIPO Performances and Phonograms Treaty,1996 <b>("WPPT")</b></p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> Article 6 (i) and Article 11, the Beijing Treaty on Audiovisual Performances, 2012 <b>("The Beijing Treaty").</b></p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> Article 9 (1) (i) (Alternative B). the Broadcast Treaty.</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> Article 5(e) (Alternative A) and 5(f) (Alternative B),</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> Article 7(1) (b), the Rome Convention.</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> Article 13(b), the Rome Convention.</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> Article 2(3) read with Article 1(v), the Brussels Convention Relating to the Distribution of Programme - Carrying Signals Transmitted by Satellite, 1974<b>("Brussels Convention").</b></p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> Article 6(ii), WPPT.</p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> Article 6(ii), the Beijing Treaty.</p>
</div>
<div id="ftn20">
<p><a href="#_ftnref20" name="_ftn20">[20]</a> Article 5 (e) (Alternative B), the Broadcast Treaty.</p>
</div>
<div id="ftn21">
<p><a href="#_ftnref21" name="_ftn21">[21]</a> Article 9(1) (iv) (Alternative B), the Broadcast Treaty.</p>
</div>
<div id="ftn22">
<p><a href="#_ftnref22" name="_ftn22">[22]</a> Article 11 bis, the Berne Convention.</p>
</div>
<div id="ftn23">
<p><a href="#_ftnref23" name="_ftn23">[23]</a> Article 13(d), the Rome Convention.</p>
</div>
<div id="ftn24">
<p><a href="#_ftnref24" name="_ftn24">[24]</a> Article 3, the Brussels Convention.</p>
</div>
<div id="ftn25">
<p><a href="#_ftnref25" name="_ftn25">[25]</a> Article 8, WIPO Copyright Treaty, 1996 (<b>"WCT"</b>).</p>
</div>
<div id="ftn26">
<p><a href="#_ftnref26" name="_ftn26">[26]</a> Article 6 (i), WPPT.</p>
</div>
<div id="ftn27">
<p><a href="#_ftnref27" name="_ftn27">[27]</a> Article 6 (i), the Beijing Treaty.</p>
</div>
<div id="ftn28">
<p><a href="#_ftnref28" name="_ftn28">[28]</a> Article 11, the Beijing Treaty.</p>
</div>
<div id="ftn29">
<p><a href="#_ftnref29" name="_ftn29">[29]</a> Article 5 (d) (Alternative A) read with Article 9(1) (i) (Alternative A) and 9(1) (iii) (Alternative B), the Broadcast Treaty.</p>
</div>
<div id="ftn30">
<p><a href="#_ftnref30" name="_ftn30">[30]</a> Article 11 bis, the Berne Convention.</p>
</div>
<div id="ftn31">
<p><a href="#_ftnref31" name="_ftn31">[31]</a> Article 13(a), the Rome Convention</p>
</div>
<div id="ftn32">
<p><a href="#_ftnref32" name="_ftn32">[32]</a> Article 2(1), the Brussels Convention</p>
</div>
<div id="ftn33">
<p><a href="#_ftnref33" name="_ftn33">[33]</a> Article 9(1) (ii) (Alternative B), the Broadcast Treaty.</p>
</div>
<div id="ftn34">
<p><a href="#_ftnref34" name="_ftn34">[34]</a> Article 9, the Berne Convention.</p>
</div>
<div id="ftn35">
<p><a href="#_ftnref35" name="_ftn35">[35]</a> Article 12, the Berne Convention.</p>
</div>
<div id="ftn36">
<p><a href="#_ftnref36" name="_ftn36">[36]</a> Article 7 (1) (c), the Rome Convention.</p>
</div>
<div id="ftn37">
<p><a href="#_ftnref37" name="_ftn37">[37]</a> Article 13(c), the Rome Convention.</p>
</div>
<div id="ftn38">
<p><a href="#_ftnref38" name="_ftn38">[38]</a> Article 10, the Rome Convention.</p>
</div>
<div id="ftn39">
<p><a href="#_ftnref39" name="_ftn39">[39]</a> Article 7, WPPT.</p>
</div>
<div id="ftn40">
<p><a href="#_ftnref40" name="_ftn40">[40]</a> Article 11, WPPT.</p>
</div>
<div id="ftn41">
<p><a href="#_ftnref41" name="_ftn41">[41]</a> Article 11, the Beijing Treaty.</p>
</div>
<div id="ftn42">
<p><a href="#_ftnref42" name="_ftn42">[42]</a> Article 9 (1) (v) (Alternative B), the Broadcast Treaty</p>
</div>
<div id="ftn43">
<p><a href="#_ftnref43" name="_ftn43">[43]</a> Article 9 (1) (vii) (Alternative B), the Broadcast Treaty</p>
</div>
<div id="ftn44">
<p><a href="#_ftnref44" name="_ftn44">[44]</a> Article 6, WCT.</p>
</div>
<div id="ftn45">
<p><a href="#_ftnref45" name="_ftn45">[45]</a> Article 8, WPPT.</p>
</div>
<div id="ftn46">
<p><a href="#_ftnref46" name="_ftn46">[46]</a> Article 12, Article 14, WPPT.</p>
</div>
<div id="ftn47">
<p><a href="#_ftnref47" name="_ftn47">[47]</a> Article 8,the Beijing Treaty</p>
</div>
<div id="ftn48">
<p><a href="#_ftnref48" name="_ftn48">[48]</a> Article 5, Alternative A to Article 5 (h), the Broadcast Treaty.</p>
</div>
<div id="ftn49">
<p><a href="#_ftnref49" name="_ftn49">[49]</a> Article 13(2), the Broadcast Treaty.</p>
</div>
<div id="ftn50">
<p><a href="#_ftnref50" name="_ftn50">[50]</a> Article 12, Alternative A1, the Broadcast Treaty.</p>
</div>
<div id="ftn51">
<p><a href="#_ftnref51" name="_ftn51">[51]</a> Article 12, Alternative A2, the Broadcast Treaty.</p>
</div>
<div id="ftn52">
<p><a href="#_ftnref52" name="_ftn52">[52]</a> Article 12, Alternative B 1 and B2, the Broadcast Treaty.</p>
</div>
<div id="ftn53">
<p><a href="#_ftnref53" name="_ftn53">[53]</a> Article 12, Alternative B2 (2), the Broadcast Treaty.</p>
</div>
<div id="ftn54">
<p><a href="#_ftnref54" name="_ftn54">[54]</a> Article 12(2), WCT.</p>
</div>
<div id="ftn55">
<p><a href="#_ftnref55" name="_ftn55">[55]</a> Article 19(2), WPPT.</p>
</div>
<div id="ftn56">
<p><a href="#_ftnref56" name="_ftn56">[56]</a> Article 11, WCT.</p>
</div>
<div id="ftn57">
<p><a href="#_ftnref57" name="_ftn57">[57]</a> Article 18, WPPT.</p>
</div>
<div id="ftn58">
<p><a href="#_ftnref58" name="_ftn58">[58]</a> Article 12 (1), WCT.</p>
</div>
<div id="ftn59">
<p><a href="#_ftnref59" name="_ftn59">[59]</a> Article 19, WPPT.</p>
</div>
<div id="ftn60">
<p><a href="#_ftnref60" name="_ftn60">[60]</a> Article 15, Article 16, the Beijing Treaty.</p>
</div>
<div id="ftn61">
<p><a href="#_ftnref61" name="_ftn61">[61]</a> Article 11 (Alternative A), the Broadcast Treaty.</p>
</div>
<div id="ftn62">
<p><a href="#_ftnref62" name="_ftn62">[62]</a> Article 7 (1), the Berne Convention.</p>
</div>
<div id="ftn63">
<p><a href="#_ftnref63" name="_ftn63">[63]</a> Article 14(c), the Rome Convention.</p>
</div>
<div id="ftn64">
<p><a href="#_ftnref64" name="_ftn64">[64]</a> Article 17, WPPT.</p>
</div>
<div id="ftn65">
<p><a href="#_ftnref65" name="_ftn65">[65]</a> Article 14, the Beijing Treaty.</p>
</div>
<div id="ftn66">
<p><a href="#_ftnref66" name="_ftn66">[66]</a> Article 10, Alternative A, the Broadcast Treaty.</p>
</div>
<div id="ftn67">
<p><a href="#_ftnref67" name="_ftn67">[67]</a> Article 10, Alternative B, the Broadcast Treaty.</p>
</div>
<div id="ftn68">
<p><a href="#_ftnref68" name="_ftn68">[68]</a> Article 10, Alternative C, the Broadcast Treaty.</p>
</div>
<div id="ftn69">
<p><a href="#_ftnref69" name="_ftn69">[69]</a> Article 9, the Berne Convention.</p>
</div>
<div id="ftn70">
<p><a href="#_ftnref70" name="_ftn70">[70]</a> Article 15, the Rome Convention.</p>
</div>
<div id="ftn71">
<p><a href="#_ftnref71" name="_ftn71">[71]</a> Article 4, the Brussels Convention.</p>
</div>
<div id="ftn72">
<p><a href="#_ftnref72" name="_ftn72">[72]</a> Article 7, the Brussels Convention.</p>
</div>
<div id="ftn73">
<p><a href="#_ftnref73" name="_ftn73">[73]</a> Article 10, WCT.</p>
</div>
<div id="ftn74">
<p><a href="#_ftnref74" name="_ftn74">[74]</a> Article 16, WPPT.</p>
</div>
<div id="ftn75">
<p><a href="#_ftnref75" name="_ftn75">[75]</a> Article 13, the Beijing Treaty.</p>
</div>
<div id="ftn76">
<p><a href="#_ftnref76" name="_ftn76">[76]</a> Article 9 (1) (iii) (Alternative A) of the Broadcast Treaty</p>
</div>
<div id="ftn77">
<p><a href="#_ftnref77" name="_ftn77">[77]</a> See Articles 9, 11,11bis, 12 and 14 of The Berne Convention.</p>
</div>
<div id="ftn78">
<p><a href="#_ftnref78" name="_ftn78">[78]</a> That this is an additional layer of protection has been conceded by the WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21<sup>st</sup> Session, Geneva November 8-12, 2010,SCCR/21/2.</p>
</div>
<div id="ftn79">
<p><a href="#_ftnref79" name="_ftn79">[79]</a> WIPO General Assembly, 33<sup>rd</sup> (16<sup>th</sup> Extraordinary Session Geneva, September 25- October 2, 2006, WO/GA/33/10, p.38. Further see WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21<sup>st</sup> Session, Geneva November 8-12, 2010,SCCR/21/2.</p>
</div>
<div id="ftn80">
<p><a href="#_ftnref80" name="_ftn80">[80]</a> Id, Also See Further, Revised Consolidated Text for a Treaty on the Protection of Broadcasting Organisations, Standing Committee on Copyright and Related Rights, 12<sup>th</sup> Session, Geneva , November 17-19,2004, SCCR/12/2, p. 15.</p>
</div>
<div id="ftn81">
<p><a href="#_ftnref81" name="_ftn81">[81]</a> Id. p. 35, see further, WIPO General Assembly, 34<sup>th</sup> (18<sup>th</sup> Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56; Elements for a Draft Treaty on the Protection of Broadcasting Organisations, Standing Committee on Copyright and Related Rights, 22 <sup>nd</sup> Session, Geneva June 15-24, 2011,SCCR/22/11,p.4; and Proposal on the Draft Treaty on the Protection of Broadcasting Organization, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14-15, 2011, WIPO/CR/CONSULT/GE/11/2/2, p.5.</p>
</div>
<div id="ftn82">
<p><a href="#_ftnref82" name="_ftn82">[82]</a> Thomas Dreier, "Reflections on the Draft WIPO Broadcasting Treaty and Its Impact on Freedom of Expression," e-Copyright Bulletin, July-September, 2006. UNESCO</p>
</div>
<div id="ftn83">
<p><a href="#_ftnref83" name="_ftn83">[83]</a> "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21<sup>st</sup> Session, Geneva November 8-12, 2010,SCCR/21/2.</p>
</div>
<div id="ftn84">
<p><a href="#_ftnref84" name="_ftn84">[84]</a> "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21<sup>st</sup> Session, Geneva November 8-12, 2010,SCCR/21/2.</p>
</div>
<div id="ftn85">
<p><a href="#_ftnref85" name="_ftn85">[85]</a> Article 5(b) (Alternative A), (Alternative to (b)) of the Proposed WIPO Treaty for Protection of Broadcasting Organisations Available at: <a href="http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf"> http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf </a> (Hereafter, the Broadcast Treaty).</p>
</div>
<div id="ftn86">
<p><a href="#_ftnref86" name="_ftn86">[86]</a> Article 5(e) (Alternative B) of the Broadcast Treaty.</p>
</div>
<div id="ftn87">
<p><a href="#_ftnref87" name="_ftn87">[87]</a> Article 5(e) (Alternative A) and 5(f) (Alternative B) of the Broadcast Treaty.</p>
</div>
<div id="ftn88">
<p><a href="#_ftnref88" name="_ftn88">[88]</a> Article 9 (1) (ii) (Alternative B) of the Broadcast Treaty.</p>
</div>
<div id="ftn89">
<p><a href="#_ftnref89" name="_ftn89">[89]</a> Article 9 (1) (ii) (Alternative A) of the Broadcast Treaty.</p>
</div>
<div id="ftn90">
<p><a href="#_ftnref90" name="_ftn90">[90]</a> The term of protection set out would last for a minimum of 20-50 years from the end of the year in which the broadcast signal was broadcast under Article 11(Alternative A) of the Broadcast Treaty. This basically means that broadcasting organisations can renew their rights by simply re broadcasting the signals and thereby never allowing the content to come under public domain.</p>
</div>
<div id="ftn91">
<p><a href="#_ftnref91" name="_ftn91">[91]</a> Proposal on the Draft Treaty on the Protection of Broadcasting Organization, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14-15, 2011, WIPO/CR/CONSULT/GE/11/2/2, p.5,p.8.</p>
</div>
<div id="ftn92">
<p><a href="#_ftnref92" name="_ftn92">[92]</a> See Part 1.1.</p>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty'>http://editors.cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty</a>
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No publisherAmulya Purushothama and Nehaa ChaudhariBroadcast TreatyAccess to Knowledge2015-09-03T02:05:14ZBlog Entry29th Session of the WIPO SCCR: CIS Intervention on the Proposed Treaty for the Protection of Broadcasting Organizations
http://editors.cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations
<b>The Centre for Internet and Society (CIS) made its intervention on the proposed treaty in the ongoing WIPO session on December 9, 2014. </b>
<p style="text-align: justify; ">Nehaa Chaudhari on behalf of CIS made the following statement:</p>
<p style="text-align: justify; "><b>Thank you, Mister Chair.</b></p>
<p style="text-align: justify; ">This intervention will be based on the chart detailing the ‘Concepts’ corresponding to the Definitions. We believe that certain elements of these concepts are inconsistent with a broadcast treaty based on a signals based approach; and over the course of the next few minutes, I will briefly discuss these.</p>
<p style="text-align: justify; "><b><i>First,</i></b><b> </b>Mr. Chair in the first column- on broadcasting or cablecasting organizations (in the traditional sense); where communication of the signal has been listed under scope of responsibility. Mr. Chair, ‘communication’ itself is an element of copyright and is distinct from broadcast rights that are related rights. A signal, Mr. Chair, may be broadcast or transmitted. Accordingly, Mr. Chair under the element of Scope of Responsibility, we are of the opinion that it should read Broadcast or Transmission of the signal and not communication of the signal; and the focus should not be at regulating communication to the public.</p>
<p style="text-align: justify; "><b><i>Second, </i></b>Mr. Chair, in the second column- on broadcasting and cablecasting transmission- we have three observations. First- under the means of transmission, we believe that transmission over computer networks encompasses IP based transmissions, and should be excluded, in order for the treaty to remain consistent with a signals based approach. Second- on the reception of the broadcast or cablecast transmission, we believe that it should be qualified using the phrase ‘general public’. We are of the opinion that there is a danger that a limited public (say family members) could possibly be covered by the term “public”, but would be excluded from “general public”; which in any case is the targeted audience of a broadcast. Third, Mr. Chair, on whether the transmission would be encrypted or not- which also flows into the third column on the Signal- and whether it is encrypted or not; which then also relates to whether broadcasting organizations will have the right to prevent unauthorized decryption. Mr. Chair, we don’t think that there should be a separate right to prevent unauthorized decryption. Given that signal theft is already a crime, having a specific right to prevent unauthorized decryption might result in an absurdity, where it could even cover decrypting an unauthorized retransmission without authorization from the retransmitter.</p>
<p style="text-align: justify; ">This provision might result in an absurdity, where it would cover decrypting an unauthroised retransmission without authorization from the retransmitter, where the retransmission in the first instance was illegal to begin with.</p>
<p style="text-align: justify; "><b><i>Finally</i></b>, Mr. Chair, on the third column and the meaning of signal- we submit that our preferred definition would be where the definition of a signal is confined, and it understood as an electronically generated carrier transmitting a broadcast or cablecast and NOT one which has the capability of such a transmission, as stated in the third column in your Chart on concepts.</p>
<p style="text-align: justify; ">Thank you, Mr. Chair.</p>
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For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations'>http://editors.cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations</a>
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No publishernehaaBroadcast TreatyIntellectual Property RightsAccess to KnowledgeWIPO2014-12-12T11:55:51ZBlog Entry