[A2k] SUNS: Separate treatment for traditional broadcasting and webcasting

[Sangeeta]

SUNS #6023 Tuesday 9 May 2006

WIPO: Separate treatment for traditional broadcasting and webcasting

Geneva, 7 May (Sangeeta Shashikant) -- Following a week of intensive and
acrimonious debate on the scope and substantive elements of a proposed
treaty on the protection of broadcasting organizations, the WIPO Standing
Committee on Copyright and Related Rights (SCCR) seemed to have concluded on
5 May that the treaty's scope would be limited (at least initially) to
rights relating to traditional broadcasting.

On the last day of the 14th session of the Committee (held on 1-5 May), it
was decided that the agenda of the next meeting (to be before the WIPO
General Assembly) would be confined to the rights of traditional
broadcasting and cablecasting organizations. The understanding is that the
preparations for a Diplomatic Conference (if the General Assembly decides to
hold it) would focus only on rights relating to traditional broadcasting.

The other two issues which have been the source of contention -- webcasting
and simulcasting -- would be dealt with separately at another meeting of the
SCCR following the General Assembly.

The separation of treatment of the issues was decided on after overwhelming
opposition from developing countries throughout the week against the
inclusion of webcasting in the scope of the treaty. The US was the main
advocate of including webcasting, while the EU proposed the inclusion of
simulcasting (i. e. the internet transmission of a traditional broadcast).

The strong views of developing countries (and many NGOs) against the
inclusion of webcasting placed the US on the defensive, and the two-track
conclusion reflected the impossibility of progress towards a treaty if there
was continued insistence on placing webcasting and simulcasting in its
scope.

However, it is not immediately clear what will be the position or status of
these two other issues, for example, whether there will be continued
discussion on them in the SCCR though not in the context of the broadcasting
treaty, or whether it could still be discussed in future for possible
norm-making.

The Chair of the meeting Jukka Liedes of Finland orally presented "suggested
elements of the Chair for overall conclusion of the meeting." According to
this conclusion, one more session of the SCCR would be convened before the
General Assembly that will be in September 2006. The Agenda of this meeting
would be confined to the protection of broadcasting organizations and
cablecasting organizations in the traditional sense.

A Revised Draft Basic Proposal would be prepared for the meeting, with the
document targeted to be available by 1 August. This document is to be based
on the Draft Basic Proposal for the WIPO Treaty on the Protection of
Broadcasting Organizations (Basic Proposal) (SCCR/14/2), the Working Paper
for the Preparation of the Basic Proposal for a Treaty on the Protection of
the Broadcasting Organizations (Working Paper) (SCCR/14/3), the existing
proposals, and also taking into account the discussions of the 14th Session
of the Committee.

This process is on the understanding that the meeting shall aim to agree and
finalise a Basic Proposal for a treaty on the protection of the rights of
broadcasting organizations in order to enable the 2006 WIPO General Assembly
to recommend the convening of a Diplomatic Conference in December 2006 or at
an appropriate date in 2007.

The Chair's conclusion included a second part stating that following the
General Assembly, a SCCR session will be convened to consider the proposals
on the protection of Webcasting and Simulcasting. Deadlines for proposals
foreseen at the 14th session of the SCCR will be 1 August and revised
documentation will be prepared on the basis of existing Draft Basic Proposal
(SCCR/14/2), and the proposals, taking into account the discussions that
took place at the 14th Session of the SCCR.

(The main reference to the webcasting and simulcasting issues during the
week's meeting was in the Draft Basic Proposal's Appendix entitled "A
Non-Mandatory Appendix on the Protection in Relation to Webcasting".)

After the conclusions were read, caveats were raised by the US and the EU.
Their condition was that should the General Assembly not make preparation
for a diplomatic conference for the protection of traditional broadcasting
organizations, then any further discussion in the subsequent SCCR sessions
would include all three issues together i. e. traditional broadcasting,
webcasting and simulcasting.

The EC also said that it could go along with the division of issues
suggested but without prejudice to the issue of simulcasting, which it said
implies that at the next SCCR, transmission by broadcasting organizations
over the internet could be considered as traditional broadcasting, if many
delegations agree to it.

The Chair made clear that the issue of webcasting and simulcasting will be
dealt with (separately from traditional broadcasting) in the SCCR meeting
following the GA. Replying to a question raised by participants, he said the
second document (on webcasting and simulcasting) will be considered as a
self-standing document, and there would not be reference in the first
document on the second document.

However, there is uncertainty whether references in the main text (which is
mainly about the protection of broadcasting organizations) to terms such as
by "any means" and "over computer networks" would be deleted, in the revised
Draft Basic Proposal.

As drafted in the present draft text, these references provide exclusive
rights to traditional broadcasters over the re-transmission (by an
organization other than the original broadcaster) of their broadcasts over
computer networks.

Several delegations such as India and Brazil were not agreeable to having
such references in the body of the main text and had asked for such
references to be deleted.

When the Chairman initially made the dual-track conclusion, it seemed as if
these references would be deleted from the revised text. However, subsequent
statements made by the Chairman and the position taken by the EC suggested
this may not happen.

The Chairman responding to a question had indicated that the first document
prepared for the SCCR meeting before the GA, may contain defensive elements
on the protection of broadcasters sending their signals over the web.

In any case, Member States will have to "wait and see" what is contained in
the Revised Draft Basic Proposal that will be prepared by the Chairman.

India called for the US to reconsider its condition. It was concerned about
a repeat of the contentious debate if the issues were mixed. It said there
have been apprehensions regarding webcasting which had cast a very long
shadow, even on the non-contentious issues.

India said that having spent much time to identify parallel tracks for the
issues, it would be better to see how this approach works rather than to
condition work with the possibility of mixing the issues. It added that the
condition has the potential of generating "heat" and not "light", because it
would combine issues that have taken so long to separate.

Brazil indicated that at the next meeting, the revised text should be
examined on an article by article basis as it was important to ensure that
there was a finalized Basic Draft proposal for the convening of a diplomatic
conference.

There should be no linkage between the issues of webcasting and simulcasting
with the issue of the protection of traditional broadcasters. It supported
Kenya's proposal to have an experts' presentation and suggested
consultations to select the panelists so that there is diversity of views.
It stressed the importance of consulting other stakeholders and NGOs. It
suggested an in-depth study on the definition of terms and the elaboration
of potential impacts.

The Chairman reacted positively to the suggestion of impact assessment but
no decision was taken on it.

On webcasting, the Chairman said a lot of awareness building had to be done
on its nature, and suggested the word 'webcasting' should be abandoned. He
said the US was advanced on this issue but others had concerns and
information sessions were needed.

The US, prior to stating its condition, said it was concerned about
separating webcasting from the consideration of the protection for
broadcasting and cablecasting. It saw a commitment to protect the interests
of broadcasting organizations in the new technological environment and
reluctantly would accept the Chair's proposal.

It agreed that more work had to be done on the protection of the new
entities (referring to webcasting organizations).

During the week's meeting, concerns were also raised on many aspects of the
proposed treaty, including the duration of protection, eligibility to the
treaty, technological protection measures (TPMs), limitations and exceptions
(L&Es) and the extension of rights that are granted to the broadcasting
organizations that are beneficiaries of the proposed treaty.

On duration, some countries (including India and Iran) were in favour of 20
years, others (including Korea and Egypt) wanted a 50 year term.

Brazil referred to the existing Draft Basic Proposal (SCCR 14/2), and said
that it was not sure which action triggers the term of protection, i. e.
whether the term started from the first broadcast or each broadcast had a
term of protection.

The Chairman said each broadcast enjoyed a separate term of protection.
Brazil responded that the Article was too broad, and protection over content
has to be clearly excluded from the language in the text.

It added that if the issue was protection of signals, then it was not
appropriate to give it intellectual property rights as no creative work is
involved.

On several occasions, many countries stressed the need for more clarity on
the use of terms in the treaty. There seemed much confusion as to what the
terms "signal", "broadcast", "programme" meant, whether they referred to
just the signal or also the content that was carried by the signal.

In relation to the "rights" granted to the broadcasters, many issues were
raised. The proposed treaty, as currently drafted, grants broadcasting
organizations the "exclusive right" of authorizing re-transmission by wire
and re-transmission over computer networks (Article 6); of authorizing the
fixation of their broadcasts (Article 7); of reproduction of fixations of
their broadcasts (Article 8); of authorizing the transmissions by any means
for the reception by the public of their broadcasts following fixations of
such broadcasts (Article 9); and of authorizing the making available of
fixed broadcasts (Article 10).

Delegations such as India, Brazil, Egypt raised concerns over the use of
words such as "transmission over computer networks" in the main text,
stating that this meant extending the scope of the treaty to include
webcasting.

Brazil also had concerns on the exhaustion of rights. It said the text seems
to grant broadcasting organizations far reaching and never ending rights. It
asked when do the rights exhaust?

It also referred to an article in the text which gave broadcasting
organizations exclusive rights of authorizing the fixation (for example,
recording) of their broadcasts, and said that these rights could encroach on
the rights of the performers and other rights that have been recognized by
the WIPO Performers and Phonograms Treaty (WPPT).

It referred to Article 6 of WPPT which gives performers "exclusive rights of
authorizing the fixations" and other articles in the Rome Convention 1960
for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations, and asked how the new rights would relate to and preserve the
rights of the creators so as to prevent the overlapping of rights.

The US said that it was willing to leave open the possibility that the
rights that is provided in relation to post fixation rights (reproduction of
fixations, transmission following fixations, right of making available of
fixed broadcasts) could be at a minimum the "right to prohibit" as opposed
to the "exclusive rights" that are proposed to be granted to broadcasting
organizations.

India was opposed (in relation to right of re-transmission) to the use of
the words "any means" and "over computer networks" and asked for these
references to be deleted, so that the proposed treaty is confined to
traditional broadcasting, re-broadcasting and re-transmission.

It also raised the need to define when the rights exhaust, and also said
there was no justification to grant the broadcaster any post fixation
rights. Brazil also raised concerns about extending protection to include
post fixation rights.

India further said that the rights that are given relates to "broadcasts"
but the term needs to be defined. For India, the term "broadcast" included 4
elements in the traditional sense -- the program content, the advertising,
the promotional materials and the logo, look and feel of the channel. If
these elements are put together it is a broadcast. The program content
belongs to the creator.

It asked what are the rights that Members are trying to protect and
suggested the need to define in the text the elements of protection in a
broadcast.

Egypt also shared the concerns by Brazil and India, about the nature of the
rights, and its relationship with the rights granted to the content
creators.

The proposed text also contains provision on the use of technological
protection measures or TPMs (i. e. technologies that control the use and
access to digital media content on electronic devices with the technologies
installed) by broadcasters in relation to the exercise of their rights. TPMs
are mechanisms on devices that restrict/make it impossible to access or use
the content.

The provision requires parties to provide adequate legal protection and
effective legal remedies against the circumvention of effective
technological measures that are used by broadcasting organizations in
connection with the exercise of their rights under the treaty and that
restrict acts, in respect of their broadcasts that are not authorized by the
broadcasting organizations concerned or are not permitted by law.

Concerns have been raised by many NGOs that this type of provision will also
restrict private, non-commercial uses of broadcasting content such as for
personal use or other valid uses for example use by researchers, archivists,
and educators. So, for example, a TPM on a broadcast can prevent the
recording of a programme for personal use or use by a teacher for teaching
purposes.

Several developing countries shared these concerns. An alternative to the
proposed text is not having any provision on TPMs at all. Countries such as
Brazil, Iran are in favour of this alternative. Countries in favour of the
inclusion of TPMs include the United States and Ghana.

Brazil said that it does not support any provisions in the proposed treaty
that would promote legal sanctioning of TPMs, which is the equivalent of
self-implementing rights by the industry. It added that the measure had
extra territoriality implications, which goes against national sovereignty.
It said that it should be up to national laws on what is allowed and what is
not.

Brazil also expressed concern about the impact of TPMs on content that is in
the public domain and regarding broadcasts that consists of works that are
not copyrightable.

Colombia had submitted a proposal that "parties may provide that the
circumvention of an imposed effective technological measure used by a
broadcasting organization to obtain access to a broadcast for the purpose of
non infringing use of that broadcast shall not constitute an infringement of
the measures implemented by virtue of this article."

Canada posed the question, if TPMs prevent fixation, would the object never
be able to fall into the public domain? It added that if the viewer or
library does not have the capability to make a copy, the fact that
exceptions to rights exists in the law may be irrevelant.

It clarified that under the WIPO 1996 treaties which include the WIPO
Copyright Treaty and the WPPT a tangible object can fall into the public
domain, but under the present treaty a live interview that was never fixed
might be lost forever.

Limitations and exceptions (L&E) was another issue that was discussed
extensively and on which many proposals have been submitted (by Chile,
Brazil and Peru). Discussion was on whether the text should reflect a
specific list of L& Es (exhaustive or non-exhaustive list), or a general
clause on L & E , wherein the parties can decide which L & Es to provide for
in the national law ( and whether the L & Es should be limited to those
provided for copyright in the national law).

Another issue was whether each of these approaches should be subject to the
three step test (set in the Berne Convention for the Protection of Literary
and Artistic Works) i. e. that the exceptions do not conflict with the
normal exploitation of the broadcast and does not unreasonably prejudice the
legitimate interests of the author.

Proposals by Brazil on the inclusion of "General Interest Public Clauses"
that preserves the freedom of a contracting party to promote access to
knowledge and information, national educational and scientific objectives,
to curb anti-competitive practices and any other action necessary to promote
the public interest as well as to take protect and promote cultural
diversity and by Chile (on enabling contracting parties to take measures to
deal with anti-competitive practices) were also discussed extensively.

On the matter of eligibility to be a party to the proposed treaty, the US is
in favour of linking the proposed treaty to the 1996 WIPO treaties. This
would mean that any party that wanted to be a party to the proposed treaty
would also have to be a party to the 1996 WIPO treaties. The US position was
supported also by the EC.

Many other countries were not in favour of having such a linkage, such as
Brazil, Morocco, China, Jamaica, Kenya, Egypt and Iran. +