In 2007 the General Assembly of the World Intellectual Property Organization (WIPO) buried the broadcast treaty in cold storage when it decided (WO/GA/34/16) that the convening of a Diplomatic Conference for the Protection of Broadcasting Organizations could only take place “after agreement on objectives, specific scope and object of protection has been achieved.” Commenting on the broadcast treaty and the break down in negotiations, KEI noted in 2007:
A large coalition of civil society NGOs, libraries, and innovative businesses have opposed the extension of the treaty to the Internet, and have argued that the treaty should follow the 1974 Brussels Satellite Convention approach, which addresses the theft of signals, but which does not create an intellectual property right in content. These groups are concerned that a treaty that follows the “rights” approach from the Rome Convention will create problems for consumers by making it more difficult to share or repurpose information, will present new liabilities for anyone hosting digital content, and will create new orphan works asit becomes more complicated and time-consuming to clear the rights of both broadcasters and copyright owners. This will only benefit a handful of large companies that merely package content into cable and satellite channels, at the expense of both consumers and copyright owners. The timing of the treaty has also been questioned, coming, as it does, at a time when transmission costs are falling, and technologies and business models are changing, especially given the abundance of legal rights in the 1996 WIPO Digital Copyright Treaties which already protect.
The negotiation over the broadcast treaty has mirrored and sometimes driven the larger changes in the culture at WIPO. When the negotiations began, it was simply about responding to demands from a powerful right-owner group — the broadcasters, for expanded commercial rights. As the discussions continued, civil society NGOs criticized the treaty, for its potential harm to the Internet. Several country delegations began to ask deeper questions about the rationale for the treaty, and examined ways to limiting the scope and nature of the treaty. In the end, the broadcasters demanded too much, and made too few concessions, for the treaty to move forward. Delegates at WIPO were no longer willing to ignore issues of access to knowledge, or the control of anticompetitive practices.
Although the specter of the broadcasting zombie has not been dealt a death blow, it was quite evident at the General Assembly that there was no sufficient agreement by WIPO Member States to convene a Diplomatic Conference on a Treaty for the Protection of Broadcasting Organizations. As mentioned by the inimitable delegate from Pakistan, perhaps “broadcasting needs a time-out” at the WIPO copyright committee. KEI fully supports calls by Brazil, Chile, India, South Africa and Uruguay to have WIPO consider a positive agenda that includes access to knowledge and information, limitations and exceptions especially related to science, health and education.
This week, however, the specter of the broadcasting treaty has come back to life as WIPO has convened an Inter-sessional Meeting on the Protection of Broadcasting Organizations which meets from 10 April 2013 to 12 April 2013. It would appear KEI is the only public interest group attending this inter-sessional. Other non-state actors include participants from the Asia Broadcasting Union, the International Video Federation, European Broadcasting Union, the Motion Picture Association, the National Association of Broadcasters, Time Warner, UEFA and the Premier League. The current negotiating text, SCCR/24/10 CORR., Working Document for a Treaty on the Protection of Broadcasting Organizations is the centerpiece of discussions at WIPO this week. Currently, WIPO is examining Article 5 on definitions. To observe the close captioning, please http://www.streamtext.net/player?event=WIPO. The password is “interbroadcasting”.
According to India, the definition of “broadcast”
means the transmission of a set of electronically generated signals by wireless and carrying a specific program for reception by the general public. “Broadcast” shall not be understood as including transmission of such a set of signals over computer networks.
India and the United States have invoked the mandate of the WIPO General Assembly in terms of having clarity about “broadcasting in the traditional sense” and a “signal-based protection”. Nigeria re-iterated that WIPO should follow the model of the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite. The United States, in one intervention, noted that in 2007, they proposed that webcasting be included in the scope of protection. The US noted that in 2007, there was a lot of resistance to this idea as countries indicated that they not have much experience with webcasting. The US in seeking to clarify, given technological changes and the development of new business models since 2007, posed the question to WIPO member states as to what they thought of webcasting in 2013. Here are some excerpts from the discussions today that were captured by the WIPO closed-captioning service.
South Africa: In fact, we are just taking the floor just to indicate that for us, South Africa, we do not distinguish between the platforms of exportation by a traditional broadcasting organisation. We feel that the traditional broadcasting organisation, as long as they transmit their own broadcast, whether it’s under mobile or smartphone or tablet or television or computer networks, they need to be protected for their property.And the other issue that has been raised by the EBU [European Broadcasting Union] is the issue of webcasting organisation and webcasting activity.
And I also recall that at the time we were grappling with these concepts, we made the decision that we will not be including webcasting organizations in this particular treaty that we are trying to come up with because also we felt that at that time that we do not understand webcasting organizations. They are new entities. And we don’t know how to regulate them. There is not enough — of how to regulate them. So that was the rationale behind why we’re not wanting to include them within the treaty that we are trying to come up with.
But with regards to as South Africa with regard to webcasting, we do not have a problem of protecting a traditional broadcasting organisation if it does part of its activities with webcasting. Thank you very much.
INDIA: Thank you, Madame Chairperson. I just had to come back again to do more clarification on the signal-based approach traditional sense, especially two queries raised by Distinguished Delegates here on the question of the very vital issues.I’ll take you to terrestrial broadcasting. You know there is still broadcasting no satellite is involved here. Of course, Madame Chair, I correct myself. Of course satellite is involved. But that is done through the transmitters of the different powers. So in this terrestrial broadcasting, there are wired and wireless things involved. So when the signals are transmitted?
So in the satellite broadcasting, also the wired and wireless is happening. The broadcast content is broadcasted through wired and wireless means. This is the traditional broadcasting which I explained sometime back. I just clarified and make you remember, you are all experts sitting here. I am just a school student here.
One more issue is the issue of the same content, whether through the traditional broadcasting application, the same broad casting organizations streaming this content. So here the signal is gone, when it is put into the server. So it goes into the packet technology, TCPI/IP protocol. We all discuss these issues in the 24, 25 SCCS. So here in the traditional sense it is not happening. It is not the traditional sense. The computer streaming. The same broadcasting organizations may be having, for example, you take the public service broadcast of government of India.
So that extent we can protect but not the Webcasting and simulcasting per se under this mandate of the 2007 General Assembly mandate. Thank you.
NAB: Thank you, Madame Chairman. The National Association of broadcasters, who I represent, represent commercial broadcasters over 1,000 television stations, roughly 10,000 radio stations in the United States.A few brief observations. We agree totally with the EBU that our interpretation in the 2007 document on the signal-based approach is the distinction between signal and content, that the purpose of making the signal-based approach the focus was to distinguish it from the content.
There was considerable concern by many of the content owners and content community that this this distinction be made, and that was our understanding. There’s been discussion and use of the term “piracy.”.
I believe I would prefer to use the notion of signal misappropriation to “piracy.”
“Piracy” denotes kind of a stealing of signal by hackers and kind of other parties of that ilk. To our thinking, this is as much about establishing on an international basis, on a transborder basis, the exclusive right of the broadcaster to authorize or prohibit by any means the transfer of their signal in many areas of the world this is not honored by cable systems and satellite operators on a transporter basis. These types of entities are often not thought of as quote/unquote pirates. So, again, it is important to us that on an international harmonizing basis that this be established that we have this, that exclusive right.
So, I am hard-pressed to understand how you, in this time, in this day and age, if your genuine concern is to deal with piracy, how you could exclude the protection of our signal over computer networks where the vast majority and all of the studies I believe currently will show this:
That’s where the piracy is occurring. So that’s where we desperately need the help.
We are in total agreement that however this body wants to define it, that we are not interested in protecting webcasters. So how does one go about making that distinction?
One suggestion I would have is again to go back to the definition of broadcast organisation in our Article 5, alternative C, there are three elements in that definition of broadcast organisation. It’s a legal entity that, one, takes the initiatives for packaging, assembling and
scheduling the programme content to the concern of the European Union, that, to me, is at least where you can start to incorporate the notion of protecting linear as opposed to just kind of disparate throwing anything on the Internet.The second element which is where necessary has been authorized by the rightsholders. I think that second key element goes to some of the legitimate, very legitimate concerns of my brethren in the content community and of course broadcasters also are content owners that deals with the piracy of the content, that these are legitimate broadcast organizations that have taken the time, effort and considerable expense of authorizing the content, the programming that they are broadcasting.
The third element takes legal and editorial responsibility for communication to the public of everything which is included in the signal. Again, I think if you focus on those elements, it will greatly assist in distinguishing between what broadcasters do, what we are seeking to
protect here, and quote/unquote webcasters, which we agree should not be the current subject of discussion for protection. Thank you, Madame Chairman.
JAPAN: Thank you, Madame Chair. Japan thinks the reason why we provide the copyrights for the traditional broadcasters is to protect the broadcasting, not to protect the traditional broadcasters itself.So, in other words, the object of protection is the broadcasting, not traditional broadcasters. So if we provide the protection for transmission over Internet, transmitted by traditional broadcasters, why we don’t provide the same rights for protection to the Web casters? Because as I mentioned, the objects of protection is the broadcast, which is very useful for all of us to enjoy works, Copyright-protected works. So we don’t intend to provide specific, special rights only to the traditional broadcasters.
So I understand to some extent the necessity for some protection against the piracy over the Internet, but at this stage we — it cannot provide the protection for — sorry. We cannot provide the protection only for the traditional broadcasters instead of webcasters. So, for example, the definition of broadcasting organisation said broadcast organisation means a legal entity that takes — for scheduling programme content for which it has the necessary rights by right holders that takes the additional and traditional responsibilities of transmission to the public of everything which is included in its broadcast signal.
So if some webcasters which is not the traditional webcasters meets this criteria, are we going to protect — provide the same rights to those webcasters?
Japan think it’s a little bit premature to decide to do so because transmission over the Internet is not done not only by traditional broadcasters but also webcasters and also individual persons can transmit over the Internet.
So as a first step, as we mentioned, we should provide only the traditional, the protection for only traditional broadcasting. And we don’t, as the second step, we can discuss our transmission or the protection for protection over the Internet, including webcasters or any other person who transmits over the Internet.
So at this stage also we have put the beneficiaries at the first layer of our nonpaper. It is not — it is linked with a scope of application. So if we try to provide protection for transmission over the Internet, we have to think of the balance between the traditional broadcasters
and not traditional webcasters. So that is why we propose this approach.
We don’t deny the necessity for discussion, but we think it’s premature to decide or decide to provide the rights to protect transmission over the Internet only for the beneficiary. Thank you.
EUROPEAN UNION: Thank you very much, Madame Chair. As we all agreed with the objective of this meeting is to understand each other’s positions, we would like to, if possible, ask the delegation of Japan for clarification because we listened to the submission and understand that delegation of Japan does not see a possibility of covering transmissions over Internet in in treaty, but I wanted to ask specifically however when you speak about it, does it concern only Internet-originated transmissions? Or you also don’t see a possibility of extending protection to what is in the diagram that was distributed by your delegation under point 1, simultaneous and unchanged transmissions of broadcasting programme, whether you don’t see a possibility of extending protection to this point. Just for clarification so that we understand exactly the position of Japan.And since we have occasion to speak now, one, and since it was mentioned also by some of the broadcasting organizations, the definition of broadcasting organizations I think is something that we need to come back to in quite some detail because we all, I think, agree that the protection and the rationale for protection is to acknowledge these organizations now technical economic effort of these broadcasting organizations, and we understand this remains our purpose; and, therefore, one can imagine that there are a number of entities or organizations that would not merit this kind of protection. They can be distributors of providing access to audio or video content. And we want to make sure — and we would like to be — we would like to discuss it with all other delegations and also experts from broadcasting organizations whether we think that elements of the definition of broadcasting organizations, so initiative for pack knowledge aning, assembling, scheduling programme content and specifically legal editorial response bit.
Whether this element of of the definition is sufficient for this purpose. So that only those organizations that deserve protection are being covered. So these two. And of course we look forward to discussion on also other transmissions as in the diagram that was distributed by Japan. Thank you very much.
KENYA: Thank you, Madame Chair. Congratulations on your appointment to Chair this discussion. The delegation of Kenya is actually concerned the fact that we are going back to issues which we thought we had dealt with over the years.For instance, if you go back to — I think the key point going back to the mandate of the General Assembly as to what we mean by the signal-based and the traditional sense. And I think we’ral most coming to a consensus on the issue of the signal-based. To create the distinction that you are not creating an extra layer to cover what was not originally covered by the broadcast protection. So I think that one we shouldn’t spend that much time on it.
The issue of the traditional sense — and I think this had clearly been stated by the delegation of Iran. And we even had a special that was held in this very plenary hall where we got the broadcasting organizations as well as the experts to give us what exactly are the current trends in relation to broadcasting?
So it was important. And I think one of the issues that came up with that particular point was the distinction between the point the platform of origin and the platform of exploitation.
So one of the issues that we are concerned about is like, for example, is there any point of protecting the traditional broadcasters in one particular platform and not in the other? As it stands right now, Kenya probably and like India, most of the piracy actually goes– goes online.
And this is something that has been exhibited by the changing technologies as well as the increased band width.
In 2008, we did not have the broadband that we have at the moment, so it was not possible for us to anticipate those particular issues. But as it stands right now, broadband is available even on the mobile phones. So most of the people who have smart phones can actually download programmes.
An example the other day my nephew wanted to watch a football match and asked me for the equivalent of a dollar to load his mobile phone so that he could be able to download the football game and watch it. So for that amount of money, 60 vilings was able to watch the match over his phone. So the platforms have changed. This is something that originated from the traditional broadcasters, so to speak, but it is now being transmitted on a different platform.
The question is: Would we want to leave that platform open for practically everybody to exploit without protecting the originator of that particular signal? Although it has now been desegregated or disseminated in a different platform and it may not be the signal as you saw it.
And one of the other things that we are looking at and this has been raised by the delegation of South Africa, it is a technology-neutral language so that we are not tied in so that we lock ourselves so that three years from now technology is moving at such a fast pace that we have an instrument that is not protecting what we intend today protect at the beginning.
So I think it’s important that we look into all those issues and take serious discussions that we’ve had with our experts seriously so that we’re not protecting something for the sake of protecting it, but we’re actually protecting something that will be durable.
And then the other thing is that having discussed with the experts at home, we find that the platforms are shifting. Very soon we might not be dealing with what we call the terrestrial. I think by 2014 most of us should have moved from the terrestrial means that we are all used to.
We are all moving into the digital platform. The satellite is slowly being replaced by the new different technologies that are coming in. So are we going to stick to that and end up having a free for all area where the original, so to speak, broadcasters do not enjoy any protection?
And then we have to remember: Why we protecting the broadcasting organizations in the first place? And I think when we got the presentations from the IOC and all those people, there is a lot of investment that is made by these broadcasting organizations for them to be able to transmit these particular signals. So we need to look at each in context as opposed to just picking up things and discussing things outside a specific context.
So this is something that is real. Kenya is a developing country, yet the technologies have shifted. We are no longer where we were in 2004 when we started the discussion as a country. And we think we need to move forward and look into the various issues that we need to deal with.