[A2k] KEI's statement on WIPO Broadcasting treaty negotiations

[James Packard Love]

This treaty proposal is a real mess, and one could address so many
different topics, it is hard to know what to focus on.  This is what
we addressed in our interventions today (June 19) on the WIPO
Broadcasting Treaty.

http://www.keionline.org/index.php?option=3Dcom_content&task=3Dview&id=3D89

KEI June 19, 2007 Statement on WIPO Broadcasting Treaty

Delegates should reject the 20 April non-paper.   The 1974 Brussels
Convention on the Distribution of Programme-Carrying Signals
Transmitted by Satellite=94 May Provide A Useful Model for a Signal-
Based Treaty

19 June 2007

Background

The 2006 GA decision focused on =93the protection of broadcasting and
cablecasting organizations in the traditional sense.=94  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 =93clarify the outstanding
issues=94 with the:

     =93aim 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.=94

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 =93signal-based approach=94 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 =93signal based=94
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 =93rights based=94 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 =93any means=94 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=92s 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=92s 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
=93signal based=94 treaty would do, and what a =93signal=94 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 =93Convention
on the Distribution of Programme=96Carrying Signals Transmitted by
Satellite.=94  This treaty, which is administered by WIPO, provides for
these definitions:

     (i) =93signal=94 (ii) =93programme=94 (iii) =93satellite=94 (iv) =93em=
itted
signal=94 (v) =93derived signal=94 (vi) =93originating organization=94 (vii=
)
=93distributor=94 (viii) =93distribution=94


The Brussels Convention focuses on the measures to prevent use of
=93programme-carrying=94 signals by any distributor for which the
transmission =93is not intended.=94  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=96
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=92s 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=92s 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 =93non-
traditional=94 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 =93the legal
entity that takes the initiative and makes arrangements for the
transmission of a broadcast for the reception by the public,=94 and a
=93broadcast=94 as an electronically generated signal =93carrying assembled
and scheduled programs for the reception by the public.=94  This is
designed to provide rights to a handful of large corporate entities,
mostly foreign owned, that package =93channels=94 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
=93broadcasters=94 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 =93shall 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.=94

Because the non-paper goes far beyond the 1974 Brussels Convention,
by providing for sweeping exclusive rights for retransmissions and
=93deferred transmission by any means to the public of their fixed
broadcasts,=94 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 =93the Berne model,=94 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.
Last Updated ( Tuesday, 19 June 2007 )


----------------------------------------------
James Packard Love
Knowledge Ecology International
mailto:james.love@keionline.org
tel. +1.202.332.2670 / U.S. mobile+1.202.361.3040, Geneva mobile
+41.76.413.6584

"If everyone thinks the same: No one thinks." Bill Walton"