On 11 April 2013, the United States made the following intervention on day 2 of the WIPO inter-sessional meeting on the protection of broadcasting organizations. The US noted the concerns expressed by content holders, technology companies, consumer and civil society groups about “creating extra layers of protection requiring additional clearance of rights”.
The United States proposed a simple approach focusing on “true signal piracy, realtime transmission of the signal to the public without authorization. This would be technology neutral in the sense it would not matter what platform is used for the act of piracy. We would not address issues about uses post fixation. These seem to us to relate more to the content than to the signal.”
According to the United States, its approach would “avoid the concerns that have been expressed about additional layers of protection for content” and argued that no term would be needed if the rights in a proposed broadcast treaty were limited to simultaneous or near simultaneous retransmission.
India responded to the US intervention by noting that the “distinguished delegate of the United States made my day today”. India stressed the importance of using the framework of the Brussels Satellite Convention in order to fulfill the mandate of the 2007 General Assembly which called for a signal-based approach. India noted the concerns of the Indian film and music industry who had concerns about any instrument granting an extra layer of rights.
South Africa noted,
We also like India we are very happy with the suggestions by the U.S. We think that it captures the spirit of this treaty. It should not be dealing with issues of content but deal with the signal. We also like India has just indicated that we see at the treaty as a platform or as a — or as something which creates a market for the local or digital content developers. So we do not want to close business or to give undue rights to the broadcasters of the content that they today do not own. So we see this as a very good suggestions for us. So we would really appreciate it. We can work on the language in terms of how do we put that in concrete terms and we really appreciate it.
CCIA stated,
CCIA has always said over the many years that I have had the privilege of representing it here that the prevention of signal piracy is a worthwhile goal which I think nobody disagrees with. But that doing so does not require rights like Copyright in order to do so. We have and continue to believe that the Brussels Convention approach of prohibiting the misuse of signals is sufficient for the purposes of preventing piracy. We would also note once again that the — if you speak to experts in the technical transmission of broadcasts as we have, they will tell you that there is no such thing as a fixed signal. There is only the programme the signal carried.And so it seems to us illogical that we would continue in international law the protection of fictional objects for any reason and finally we would note that while it is certainly logical to protect a broadcast in any form, there is an anticipated side effect of doing so if one group of stakeholders signals are protected when they are transmitted simultaneously over the Internet. But other stakeholders who originate over the Internet and only never start with over the air broadcast and I think it would be worthwhile looking very closely at the unanticipated possible side effects of doing so, especially given as we all know that broadcasting is a changing and shifting thing. There are increasingly broadcasters who originate as we no across all media. It is no longer what it once was.
Here is the US statement in full (as captured by the WIPO close-captioning service).
UNITED STATES: We have been discussing the issue of protection for broadcasting organizations now for almost 20 years. It is understandable and to a large extent it was necessary since the time of the Rome Convention much has changed and it is now less clear than it was then what is a broadcasting organisation and exactly what is meant by broadcasting.Today we have very different legal models in different countries for protecting these interests. And we do so through a mixture Copyright, related rights and communications law depending on the country. The lack of clarity as to the subject matter we are discussing combined with differing legal systems was what led to the compromise approach to this issue in the TRIPS Agreement. To recap where we stand now, we have before us a text that incorporates proposals based on very different approaches, some include a catalog of rights similar to the WPPT and others less extensive.
We also have set ourselves an ambitious timetable with the proposed recommendation to the General Assemblies this autumn with respect to a potential Diplomatic Conference next year.
I also note that a number of stakeholders including the owners of rights in the content that is the subject of broadcasts, technology companies, and consumer and civil society groups have expressed concerns about creating extra layers of protection requiring additional clearances of rights.
And finally we have the mandate from the General Assembly in 2007 that we looked at yesterday which calls for a signal based approach. Looking at all of this landscape it seems to us that the only realistic way to achieve results without years of additional debate would be to find a compromise based on a core of common agreement. We think it would be possible to coalesce around a simpler more targeted approach addressing the core problems of broadcasters today. This would include focusing on true signal piracy, realtime transmission of the signal to the public without authorization. This would be technology neutral in the sense it would not matter what platform is used for the act of piracy. We would not address issues about uses post fixation. These seem to us to relate more to the content than to the signal. And finally each country would of course be free to adopt such additional rights at national level if they haven’t done so already.
The advantages of this approach are several. First of all, this is an area where we may have considerable consensus already and we would be able to move quickly. Second, it could avoid the concerns that have been expressed about additional layers of protection for content. Third, it may remove the need to address other contentious or difficult issues such as term of protection or exceptions. No term may be needed at all in the treaty if the rights relate to simultaneous or near simultaneous retransmission. And there would be a very limited impact on consumer uses if any since consumer uses do not involve retransmission to the public.
We do not at this point have specific language to propose along these lines but we would be certainly happy to provide some before the next meeting. Thanks Madame Chair.