Tuesday, 19 June 2007
(See also the KEI web page on the WIPO broadcast treaty).
19 June 2007
Background
The 2006 GA decision focused on “the protection of broadcasting and cablecasting organizations in the traditional sense.” It provided that the Basic Proposal is document SCCR/15/2, with the understanding that all Member States may make proposals at the Diplomatic Conference. However, because of the wide differences in views on the treaty, and to prevent a failed diplomatic conference, the GA called for two special sessions of the SCCR, to “clarify the outstanding issues” with the:
“aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal.”
If no such agreement is achieved, further discussions are to be based on document SCCR/15/2, and the decision to hold the diplomatic conference will be difficult, given the strong divergence of views on substantive provisions.
What the “signal-based approach” is about
The debate at the SCCR concerned the costs and benefits of imposing a layer of intellectual property rights on broadcasts. Critics of a strong intellectual property right for broadcasters wanted to avoid an outcome that undermined the rights of the copyright owners, created a new thicket of necessary permissions to use works, and harmed consumers.
However, there was support for a treaty that would provide protections against the piracy of signals, to the extent that problem actually exists.
Those who did not want a strong set of exclusive rights associated with the transmission of broadcasts used to the term “signal based” to describe a treaty that focuses on the problem of piracy of signals.
The underlying idea was that the broadcasters should have the protection necessary to make sure their broadcasts were not hijacked, but that once someone received a legitimate broadcast signal, the broadcaster protections would end, and the content of the programs would be protected only by copyright or the related rights associated with creative parties such as performers and producers of phonograms.
What the Non-Paper Did
The longstanding SCCR Chair supports a “rights based” treaty, and that is what is presented in his 20 April 2007 non-paper. The sweeping intellectual property rights given to broadcasters are set out most importantly in Article 7:
Article 7
Protection of Broadcasts
Broadcasting organizations shall enjoy the exclusive right of authorizing the retransmission of their broadcasts, and the deferred transmission by any means to the public of their fixed broadcasts.
This appears to give the broadcaster exclusive rights to more than the broadcasts, but to “any means” of transmitting works to the public, including many post fixation rights, including those involving the Internet. During the debate on Monday, the Chair said that it might be appropriate to give a term of 20 to 50 years to these rights.
The non-paper is a mechanism for the broadcaster to use this right to compete against the copyright owner for the downstream marketing of copyrighted content, and it imposes a costly additional layer of needed permissions to use works.
The Chairman’s non-paper also eliminated the protections for the public found in 15/2. The most important operative language for the defense of competition, cultural diversity and public interest limitations and exceptions (L&E) were eliminated or mentioned only in the preamble.
The Chair’s new non-paper provides the narrowest possible set of permissible L&E. Only those that are used for copyright are permitted, and only then if they pass the three-step test. This is quite narrower than the Rome, Berne or the TRIPS, all of which provide for cases where the L&E are not subject to the three-step test.
This is unacceptable, given the importance of access to competition, the risk of anticompetitive practices.
The non-paper should be rejected, or fixed.
The Approach Taken in the 1974 Brussels Convention
The non-paper should have first made an effort to define what a “signal based” treaty would do, and what a “signal” was. It should have provided the delegates with an approach that focused on piracy, rather than a new economic right in the programs.
One useful model for such a treaty is the 1974 Brussels “Convention on the Distribution of Programme–Carrying Signals Transmitted by Satellite.” This treaty, which is administered by WIPO, provides for these definitions:
(i) “signal” (ii) “programme” (iii) “satellite” (iv) “emitted signal” (v) “derived signal” (vi) “originating organization” (vii) “distributor” (viii) “distribution”
The Brussels Convention focuses on the measures to prevent use of “programme-carrying” signals by any distributor for which the transmission “is not intended.” The protection does not extend to legitimate uses of a program from the parties for whom the transmission was intended.
Article 2:
(1) Each Contracting State undertakes to take adequate measures to prevent the distribution on or from its territory of any programme–carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended. This obligation shall apply where the originating organization is a national of another Contracting State and where the signal distributed is a derived signal.
. . .
(3) The obligation provided for in paragraph (1) shall not apply to the distribution of derived signals taken from signals which have already been distributed by a distributor for whom the emitted signals were intended.
The Brussels Convention, unlike the Chair’s non-paper, includes an operative provision on the control of anticompetitive practices (Article 7), as well as one on limitations and exceptions (Article 4) that is not limited to the 3-step test, including special limitations and exceptions for uses involving education or science, in developing countries (Article 4(iii)). These L&E are provided even though the protections of the treaty do not apply when derived signals are distributed by persons for whom the signal was actually intended.
The Brussels Convention may provide a much more useful template for a treaty than does the Chairman’s non-paper. It can be modified to incorporate the changes that are needed to make it apply to traditional broadcasting and cablecasting organizations. The Articles from 15/2 regarding limitations and exceptions, defense of competition or cultural diversity could be included, to the degree that such provisions are needed, giving the nature of the obligations that would be included in a treaty that applied to traditional television and cablecasting.
This could include appropriate restrictions on retransmission on traditional television and cable systems.
Uses of information contained in such on the Internet or other “non-traditional” platforms should be regulated only by the relevant provisions in copyright laws, or the related rights that apply to creative parties, such as performers or producers of phonographs.
Beneficiaries of a new treaty
The Rome Convention created economic rights for owners of television and radio stations. These were majority owned by nationals in most countries. The new treaty creates rights for cable companies, including both the companies that provide the wired connection to homes as well as the firms that package content for them, through channels. The non-paper defines the beneficiary as the “the legal entity that takes the initiative and makes arrangements for the transmission of a broadcast for the reception by the public,” and a “broadcast” as an electronically generated signal “carrying assembled and scheduled programs for the reception by the public.” This is designed to provide rights to a handful of large corporate entities, mostly foreign owned, that package “channels” of content for global distribution. Since television and radio are already beneficiaries under the Rome Convention for their wireless transmissions, this would represent a significant change in the nationality of the beneficiaries. This would be extended further if the right is extended to retransmission on the Internet, where the owner of the “broadcasters” could easily be foreign.
The Relationship Between Limitations And Exceptions And Rights
To the extent that the treaty focuses on piracy of broadcasts, and not the uses by persons who receive the broadcast through legitimate means, the limitations and exceptions can be less comprehensive. However, even here, the 1974 Brussels Convention provides for limitations and exceptions in several key areas, including for short excerpts of reports of current events, quotations compatible with fair practice, and in developing countries the distribution for the purpose of teaching. In addition, the Brussels convention “shall in no way be interpreted as limiting the right of any Contracting State to apply its domestic law in order to prevent abuses of monopoly.”
Because the non-paper goes far beyond the 1974 Brussels Convention, by providing for sweeping exclusive rights for retransmissions and “deferred transmission by any means to the public of their fixed broadcasts,” a much broader set of limitations and exceptions are appropriate, as were included in SCCR/15/2, in Article 2, 3, 4 and 17. Failures to include such provisions at this stage of the negotiations would be a grave mistake, given the nature of the proposed rights, and the degree to which broadcasting organizations are fighting for these rights.
National Treatment
KEI strongly objects to alternative K in Article 6 of the non-paper. This option “the Berne model,” would provide an incentive to implement even more extensive economic rights than are found in the non-paper. One example of this is the recent tit-for-tat expansion of copyright terms from 50 to 70 years, in order for nationals to receive the longer term of protection in foreign markets.