In April 2019, the World Intellectual Property Organization (WIPO) published a new version (SCCR/38/10) of the WIPO Treaty for the Protection of Broadcasting Organizations. Currently, the proposed treaty anticipates the scope of application to include new beneficiaries such as on-demand and catch up services, parallel sport events, extra footage on news or programs, additional interviews, behind-the-scenes programs, pure on-demand streaming channels, and on-demand catalogues.
Footnote 2 contains the following bracketed text on an agreement statement concerning “equivalent deferred transmissions and “other deferred transmissions”. Footnote 2 states:
[Agreed Statement concerning “equivalent deferred transmissions” and “other deferred transmissions”: Equivalent deferred transmissions include online repeats, on-demand catch-up services and previews. Other deferred transmissions include parallel sport events, extra footage on news or programs, additional interviews, behind-the-scenes programs, pure on-demand streaming channels and on-demand catalogues.]
While some delegates see the WIPO Broadcasting Treaty as as a treaty that will benefit local broadcasters, that is likely only to be true in the short term. And even in the short term, the more ambitious versions of the treaty are also designed to create economics rights for large foreign corporations that “schedule the content” for cable and satellite channels, such as Disney, Vivendi, and AT&T. In the longer run, the treaty appears to be creating a new legal regime that will create rights for the giant technology firms largely based in the United States, that are creating global platforms for video and sound recording content, including Amazon Prime, Netflix, Hulu, YouTube, Google/YouTube TV, Hulu TV, Yahoo, Twitter, Sling TV, Facebook, Spotify, Apple Music, Google Play Music, and Pandora, all companies that could qualify as broadcasters by owning a single broadcast station.
Based on the negotiations at WIPO’s 38th Standing Committee on Copyright and Related Rights (SCCR 38), new language on an agreed statement describing the relationship between the signal and the underlying content has been inserted into the text.
[Agreed statement:
It is understood that Article (x) clarifies the relationship between rights in programme-carrying signals under this Treaty and rights in the content embodied in such signals. In cases where authorization is needed from both the rights holder of content embodied in such a signal and a broadcasting organization, the need for the authorization of the right holder does not cease to exist because the authorization from the broadcasting organization is also required, and vice-versa. In addition, the rights granted to broadcasting organizations under this Treaty may not be invoked against the holder of rights in the content and, in particular, may not deprive them of the ability to control, by contract, the relations with broadcasting organizations and to exploit content contained in programme-carrying signals independently.]
The new treaty text has new language on the object of protection which would extend to simultaneous, near simultaneous, and “transmissions made by providing access to a stored version of the programme-carrying signal”. The text qualifies “stored version” as a programme-carrying signal “that is available for a limited period of weeks or months” to facilitate on-demand services. Alternative 1 of the object of protection anticipates the extension of the WIPO Broadcasting Treaty to “deferred transmissions” thus signalling its application to on-demand streaming services.
Alternative 1:
[(2) The object of the protection under this Treaty extends to simultaneous, near simultaneous [and deferred transmissions] of the programme-carrying signals described in para. (1) of a broadcasting organization.]
Alternative 2:
[(2) Broadcasting organizations shall, as a minimum, enjoy protection for simultaneous transmissions, near simultaneous transmissions and transmissions made by providing access to a stored version of the programme-carrying signal [that is available for a limited period of weeks or months] [in such a way that members of the public may access them from a place and at the time individually chosen by them.]
[(3) (i) Broadcasting organizations may enjoy protection for any other type of transmission.
(ii) A Contracting Party may provide that a broadcasting organization of another Contracting Party shall enjoy the right referred to in subparagraph (i) above only if the legislation of that other Contracting Party provides comparable protection.]
Under rights to be granted, the new text has two important additions.
In brackets, the new text has an agreed statement on retransmission.
[Agreed statement:
For purposes of this paragraph, the retransmission of a programme-carrying signal shall include providing access to a stored version of the signal.]
The new text has beefed up provisions for broadcasting organizations to enforce their rights against unauthorized retransmission. Paragraph 2 bis includes a “presumption that in the absence of proof to the contrary the broadcasting organization is authorized to enforce those rights against the unauthorized retransmission.”
(2 bis) A Contracting Party may comply with the obligation in paragraph (2) by providing in its domestic law either that (i) a broadcasting organization that is the owner or exclusive licensee of any copyright or related rights that exist in the programmes carried by the signal is entitled to enforce those rights against the unauthorized retransmission or (ii) a presumption that in the absence of proof to the contrary the broadcasting organization is authorized to enforce those rights against the unauthorized retransmission.]
Finally, the new text (SCCR/38/10) has a new section on enforcement of rights.
Enforcement of Rights
(1) Contracting Parties undertake to adopt, in accordance to their legal systems, the measures necessary to ensure the application of this treaty.
(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
Agreed Statement:
It is understood that nothing in this Treaty affects any right owned or exercised by right holders in the content of programme-carrying signals or otherwise deprives such right holders of the ability to control, by contract, their relations with broadcasting organizations.]
At SCCR 38 (April 2019), WIPO delegates agreed to kick the can down the road by providing the following recommendation to the WIPO General Assembly:
An agreement was reached on the following Recommendation to the WIPO General Assembly (WIPO/GA/59): In view of the steady progress made in recent SCCR sessions, the GA invites the SCCR to continue its work towards convening a diplomatic conference for the adoption of a treaty on the protection of broadcasting organizations, aiming for the 2020/2021 biennium, subject to Member States reaching consensus in the SCCR on the fundamental issues, including specific scope, object of protection and rights to be granted.
However, once the devilish details of the proposed broadcasting treaty have been ironed out, without strong opposition, WIPO’s norm-making sausage factory will have created new global related rights. Again, if the treaty was really about protecting broadcasters from rampant piracy and not about creating a new layers of right for them, the Chair’s text would not contain terms of protection with options for 20, 50, or more years of protection.
The proposed treaty should not extend protection to post-fixation right nor should it apply to on-demand streaming services.