In preparation for WIPO’s upcoming Standing Committee on Copyright and Related Rights (SCCR) discussions (16 December 2013 to 20 December 2013) on a proposed Treaty for the Protection of Broadcasting Organizations, the Government of Japan submitted a new proposal, SCCR/26/6 (Draft Treaty on the Protection of Broadcasting Organizations) on 28 November 2013 to be consolidated with the main negotiating text, SCCR/24/10 Corr. (Working Document for a Treaty on the Protection of Broadcasting Organizations).
In Japan’s own words,
The main purpose of this proposal is to find a way out of our prolonged discussion regarding the scope of application and to move forward the discussion for the adoption of the new treaty. Therefore, we focus only on the issue whether or not signals transmitted over the computer network are covered by this Treaty. In our proposal, Article 6 bis is newly introduced which stipulates that signals transmitted over computer networks are included in the scope of application of this Treaty.
Japan proposes a new article 6 bis which would grant broadcasting and cablecasting organizations protection for either “their transmission signals excluding on-demand transmission signals” or “simultaneous and unchanged transmission signals of their broadcast” over computer networks.
Article 6 bis
Protection of signals transmitted over computer networks
(1) Broadcasting organizations and cablecasting organizations shall enjoy protection for [their transmission signals excluding on-demand transmission signals / simultaneous and unchanged transmission signals of their broadcast] over computer networks.
(2) The protection provided for in paragraph (1) may be claimed in a Contracting Party only if legislation in the Contracting Party to which the broadcasting organizations and cablecasting organizations belongs so permits, and to the extent permitted by the Contracting Party where this protection is claimed.
(3) The extent and specific measures of the protection granted in paragraph (1) shall be governed by the legislation of the Contracting Party where protection is claimed.
Clearly, SCCR26 should examine the consequences of the Japanese proposal on access to knowledge and the consumption of cultural goods. How would these norms prescribed by Japan affect the way we use YouTube, Facebook, Vimeo, Twitter, Instagram, Bing and Google?
The Government of Japan provides the following explanatory note to clarify its language.
Explanatory Note on Article 6 bis (Protection of signals transmitted over computer networks)
Paragraph (1) clearly establishes that the scope of the protection provided by the Treaty covers the protection for signals transmitted over computer networks.
Paragraph (2) follows the concept of Article 14 ter (2) of Berne Convention, which is largely recognized as an adoptive provision and lays down reciprocity principle at the same time. This paragraph establishes that the broadcasting organizations and cablecasting organizations in a Contracting Party can claim the protection for signals transmitted over computer networks in another Contracting Party under the following conditions, namely: (i) if the Contracting Party to which the broadcasting organizations and cablecasting organizations belong also provides the protection for signals transmitted over computer networks and (ii) to the extent of the protection the Contracting Party where the protection is claimed provides.
Paragraph (3) lays down that the domestic legislation of each Contracting Party can decide the extent and specific measures of protection pursuant to Article 6 bis (1).