At the close of the last meeting (June 29 to July 3, 2015), the WIPO Standing Committee on Copyright and Related Rights (SCCR) requested that the Chair prepare for its next session (December 7 to 11, 2015) a “consolidated text” with respect to 1) definitions, 2) object of protection, and 3) rights to be granted for the proposed treaty for the protection of broadcasting and cablecasting organizations.
There may be a rough consensus on many if not all of the issues summarized by the Chair. If the SCCR agrees with these proposals, WIPO will be closer to scheduling a diplomatic conference, although there are plenty of loose ends.
At a glance:
1) Definitions. The Chair ‘s text proposes alternatives definitions for “signal,” “broadcasting,” “cablecasting,” “broadcasting organization,” “retransmission,” “near simultaneous retransmission,” and “pre-broadcast.”
2) Object of protection. The Chair text proposes that protection is to granted to broadcasts transmitted by, or on behalf of, a broadcasting organization, but not to works or other protected subject matter carried on them. The Chair proposes that “mere retransmissions by any means” be excluded but he includes protection for “simultaneous or near simultaneous retransmission by any means as if such transmission were a broadcast”. The text includes cablecasts.
3) Rights. Broadcasting organizations shall have the right to authorize or prohibit the retransmission of their broadcast to the public by any means or (alternative B) shall have the right to prohibit the unauthorized retransmission of their broadcast to the public by any means.
There will much discussion on these 3 issues even if some of the problems seem to have been solved. For example, cablecast ing is to be included and it does not seem to be controversial among member states or even copyright holder lobby groups, despite opposition from some civil society NGOs like KEI, and the issue of topics such as the term (if any), limitations and exceptions to rights, and other topics in other versions of the negotiating texts on the broadcaster treaty.
This is the Chair’s proposal.
DATE: NOVEMBER 15, 2015
Standing Committee on Copyright and Related Rights
Thirty-first Session
Geneva, December 7 to 11, 2015
CONSOLIDATED TEXT ON DEFINITIONS, OBJECT OF PROTECTION, AND RIGHTS
TO BE GRANTED
prepared by the ChairFor the purposes of this Treaty:
(a) “signal” means an electronically generated carrier capable of transmitting a broadcast or cablecast encrypted or not which carries the programmed output of a broadcasting organization.
ALTERNATIVE A
(b) (1) “broadcasting” means the transmission by wireless means for reception by the public of sounds or of images or of images and sounds or of the representations thereof, such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent.
(2) “cablecasting” means the transmission by wire for reception by the public of sounds or of images or of images and sounds or of the representation thereof. Transmission by wire of encrypted signals is “cablecasting” where the means for decrypting are provided to the public by the cablecasting organization or with its consent.
ALTERNATIVE B
(b) “broadcasting” means the transmission either by wireless means or any other means for reception by the public of sounds or of images or of images and sounds or of the representation thereof; such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent.
(c) “broadcasting organization” [and “cablecasting organization”] means the legal entity that takes the initiative for packaging, assembling and scheduling and has the legal and editorial responsibility for the transmission, irrespective of the technology used, to the public of its broadcast [or cablecast]. It is understood that for the purpose of this Treaty, entities which deliver their program output exclusively by means of a computer network do not fall under the definition of a “broadcasting organization”.
(d) (1) “retransmission” means the transmission by any means of a broadcast [/cablecast] by any other entity than the original broadcasting [/cablecasting] organization, whether simultaneous or delayed.
(2) “near simultaneous retransmission” means a transmission that is delayed only to the extent necessary to accommodate time differences or to facilitate the technical transmission of the broadcast [/cablecast].
[(e) “pre-broadcast” means a transmission prior to broadcast [/cablecast] that a broadcasting [/cablecasting] organization intends to include in its programme schedule and which is not intended for direct reception by the public.]
II. OBJECT OF PROTECTION
(1) The protection granted under this Treaty extends only to broadcasts transmitted by, or on behalf of, a broadcasting organization, but not to works or other protected subject matter carried on them.
(2) The provisions of this Treaty shall not provide any protection in respect of mere retransmissions by any means.
(3) Broadcasting organizations shall also enjoy protection for simultaneous or near simultaneous retransmission by any means as if such transmission were a broadcast.
(4) The provisions of this Treaty shall apply mutatis mutandis to the protection of cablecasting organizations in respect of their cablecasts.
Chair´s note: Further discussion is needed on the inclusion as an object of protection of transmissions by broadcasting (cablecasting) organizations in such a way that members of the public may access them from a place and a time individually chosen by them.
III. RIGHTS TO BE GRANTED/PROTECTION
ALTERNATIVE A
Broadcasting organizations shall have the right to authorize or prohibit the retransmission of their broadcast to the public by any means.
ALTERNATIVE B
Broadcasting organizations shall have the right to prohibit the unauthorized retransmission of their broadcast to the public by any means.
On a related note, for those want to brush up on the US Areo case, the SCTOUS Blog has a page with links to commentary about the decision.
http://www.scotusblog.com/case-files/cases/american-broadcasting-companies-inc-v-aereo-inc/