[Ecommerce] defintions in new draft of proposed WIPO "casting" treaty

[James Love]

Article 2
Definitions

For the purposes of this Treaty,

(a)=09=93broadcasting=94 means the transmission by wireless means for publi=
c
reception of sounds or of images or of images and sounds or of the
representations thereof;  such transmission by satellite is also
=93broadcasting.=94  Wireless transmission of encrypted signals is
=93broadcasting=94 where the means for decrypting are provided to the publi=
c
by the broadcasting organization or with its consent.  =93Broadcasting=94
shall not be understood as including transmissions over computer networks;



[Article 2 continues]

wireless transmissions but also transmissions by wire, =93including by
cable or satellite=94 in the proposal of the European Community and its
Member States.  A narrower definition of =93broadcasting=94 has been
proposed in the consolidated text for consistency with existing treaties
in the field of copyright and related rights.  Transmissions by wire,
including by cable, are defined as =93cablecasting=94 in the consolidated
text.  The end result concerning the scope of application of the new
Instrument (by providing separate definitions for =93broadcasting=94 and
=93cablecasting=94) is exactly the same as by using the broader definition
of =93broadcasting.=94

2.04=09Item (b) contains a definition of =93broadcasting organization.=94  =
In
the discussions in the Standing Committee it was felt that some limits
should be set concerning the persons benefiting from the protection of
the new Instrument.  Not everybody transmitting program?carrying signals
shall be regarded as a =93broadcasting organization.=94  The definition
proposed in item (b) consists of three main elements:  (1) the person
shall be a =93legal entity,=94 (2) taking =93the initiative=94 and having =
=93the
responsibility,=94 for =93the transmission,=94 and (3) for =93the assembly =
and
scheduling of the content of the transmission.=94  It follows the
proposals of Egypt, Kenya, and the United States of America.  It is
suggested that the definition of =93broadcasting organization=94 would be
applied mutatis mutandis to the legal entities engaged in cablecasting
and, subject to the final scope of the new Instrument, in webcasting.

2.05=09Argentina suggested a definition according to which a criterion for
a body/entity to qualify as =93broadcasting organization=94 would be the
authorization by a Contracting Party.  This alternative has not been
presented in the Articles because broadcasting activities are not now or
in future necessarily subject to authorization by public authorities,
and in an international instrument there is need for objective criteria.

2.06=09In the new Instrument there is no definition of the term
=93broadcast.=94  The object of protection of the new Instrument is the
broadcast, that is the program-carrying signal constituting the
transmission.  The broadcast represents the output of the activity in
which a broadcasting organization is engaged, namely =93broadcasting,=94
which is already defined in item (a).  For this reason there is no need
for a definition of =93broadcast.=94

2.07=09Item (c) defines the term =93cablecasting.=94  The definition follow=
s
mutatis mutandis the definition of =93broadcasting=94 in item (a), and also
in the WPPT.  The notion of =93cablecasting=94 is confined to transmissions
by wire in line with the proposals of Argentina (using the term =93cable
distribution=94), Egypt, Singapore, and the United States of America.  No
wireless transmissions, including by satellite, are included in
=93cablecasting.=94  In the definition, the interpretative clause referring
to encrypted signals is maintained.  For the same reason as in the case
of the definition of =93broadcasting,=94 =93transmissions over computer
networks=94 are excluded from the notion of =93cablecasting.=94  The
definition of =93cablecasting=94 is needed if the notion of traditional
broadcasting is adopted in the new Instrument as proposed, but would be
superfluous if the new Instrument were based on a broader notion.


[Article 2, continued]

(b)=09=93broadcasting organization=94 means the legal entity that takes the
initiative and has the responsibility for the transmission to the public
of sounds or of images or of images and sounds or of the representations
thereof, and the assembly and scheduling of the content of the transmission=
;

(c)=09=93cablecasting=94 means the transmission by wire for public receptio=
n
of sounds or of images or of images and sounds or of the representations
thereof.  Transmission by wire of encrypted signals is =93cablecasting=94
where the means for decrypting are provided to the public by the
cablecasting organization or with its consent.  =93Cablecasting=94 shall no=
t
be understood as including transmissions over computer networks;



[Article 2 continues]

2.08=09Item (d) contains a definition of =93retransmission.=94  The notion =
of
=93retransmission,=94 in the defined form, embraces all forms of
retransmission by any means, i.e. by wire or wireless means, including
combined means.  It covers rebroadcasting, retransmission by wire or
cable, and retransmission over computer networks.  All proposals
contained suggestions on retransmission in narrower or broader form,
either in the definitions or in the clauses on rights.  In the defined
open-ended form, =93retransmission=94 covers the substance of all proposals=
.
  Language has been added to make clear that protection should extend to
subsequent retransmissions.  The definition is confined to simultaneous
retransmissions only.  It follows the definition of =93rebroadcasting=94 of
the Rome Convention which is confined only to simultaneous broadcasting
of the broadcast of another broadcasting organization.  The Berne
Convention also operates in a similar manner;  Article 11bis(1)(ii) sets
forth the rights of authors in respect of their broadcast works, using
the concept of simultaneous retransmission (using the expression
=93communication to the public by wire or by rebroadcasting=94).

2.09=09The definition is premised on the notion that non-simultaneous
transmissions may only take place using a fixation of the original
transmission, and such transmissions may thus be considered as new
transmissions.  Argentina, Egypt, and the United States of America made
in their proposals this distinction between simultaneous retransmissions
and (deferred) transmissions based on fixations.  A number of other
Delegations, the European Community and its Member States, Kenya, Japan
(concerning rebroadcasting), Honduras, Singapore (concerning cable
retransmission), Switzerland, and Uruguay proposed that the exclusive
right of retransmission also cover (deferred) transmissions based on
fixations.  All Delegations suggested in one way or another that
broadcasting organizations would enjoy protection against deferred
transmissions based on fixations.  To address this issue, a separate
Article 11 on transmission following fixation is presented below.

2.10=09Item (e) contains, for purposes of the new Instrument, a very
specific, narrow definition of =93communication to the public.=94  It refer=
s
to the special case of public performance to an audience present in the
place where the performance (=93rendition,=94 =93display,=94 etc.) takes pl=
ace.
  It draws upon the concept used for television broadcasts in Article
13(d) of the Rome Convention but extends to the communication to the
public of program content of transmissions, or retransmissions,
conveying both sounds and images and sounds.  Communication of this type
may include the reception of a signal and projection of the program
content of the broadcast to the public in a caf=E9, hotel lobby, the
premises of a fair, on

[Article 2, continued]

(d)=09=93retransmission=94 means the simultaneous transmission to the publi=
c
by any means of any transmission referred to in provisions (a), (c) or
(g) of this Article;  simultaneous transmission of a retransmission
shall be understood as well to be a retransmission;

(e)=09=93communication to the public=94 means making the transmissions
referred to in provisions (a), (c), (d) or (g) of this Article audible
or visible, or audible and visible, in places accessible to the public;



[Article 2 continues]

the screen of a cinema, or in other premises open to the public.  The
definition is meant to include making program content audible and/or
visible to the public through a radio or a television set located in the
types of premises mentioned above.  Honduras limited its proposal on
=93communication to the public,=94 to television as in the Rome Convention.
  Argentina, Kenya, and the United States of America extended
=93communication to the public=94 in their proposals to =93communication=94=
 or
=93rendition=94 to the public from a fixation of a transmission.  Some
Delegations limited the right to control the =93communication to the
public=94 to places accessible to the public only upon the payment of an
entrance fee.  The extent of the right in this respect shall be decided
in the context of Article 7.  Finally, it should be noted that the
expression =93(any) communication to the public=94 has been used for
different purposes in the Rome Convention and the WPPT, and in the Berne
Convention and the WCT, as compared to this new Instrument and each other.

2.11=09Item (f) defines the term =93fixation.=94  It follows the definition=
 of
=93fixation=94 in the WPPT.  After the phrase =93embodiment of sounds,=94 t=
he
phrase =93or of images or of images and sounds=94 has been added.  The term
=93embodiment=94 covers the result of incorporating or recording program
material carried by a signal using whatever means and whatever medium.
Furthermore, it should be pointed out that, as in the corresponding
definition in the WPPT, the definition of fixation does not qualify or
quantify the duration of the life of the embodiment necessary to result
in fixation.  There are no conditions regarding the requisite permanence
or stability of the embodiment.  The definition combines the proposals
made by Argentina, Egypt, Kenya, and the United States of America.

2.12=09In item (g) in Alternative C, the definition of =93webcasting=94 is
based on the proposal of the United States of America.  Its structure
follows the definitions of =93broadcasting=94 and =93cablecasting.=94  The
operative term of the definition is not =93transmission=94 but =93making
accessible to the public of transmissions.=94  This expression implies the
modicum of interactivity in today=92s technological environment that is
necessary to access the streaming of a program-carrying signal.  It is
the receiver who activates or instigates the transmission over a
telecommunications path.  The elements =93to the public=94 and =93at
substantially the same time=94 serve to limit the definition to
accessibility of real-time streaming that may be received by several
receivers at the same time.  The receiver may log in to the program flow
at a given point of time and receive what follows but cannot influence
the program flow otherwise.  The definition confines the making
accessible of transmissions to such activity over computer networks,
which by nature may take place by wire or wireless means.  In the end of
the definition, the explicit exclusion of =93webcasting=94 and =93other
computer network transmissions=94 from =93broadcasting=94 and =93cablecasti=
ng,=94
as proposed by the United States of America, has been omitted from the
consolidated text in view of the fact that the definitions of
=93broadcasting=94 and =93cablecasting=94 include explicit clauses to this =
effect.

2.13=09Item (g) in Alternative D recognizes the fact that a great majority
of Delegations in the debates in the Standing Committee opposed the
extension of the protection to webcasts.  Many Delegations have
indicated that further study is needed and have suggested that the issue
of webcasting deserves to be dealt with in future discussions and not in
the present framework.

[End of Explanatory Comments on Article 2]
[Article 2, continued]

(f)=09=93fixation=94 means the embodiment of sounds or of images or of imag=
es
and sounds or of the representations thereof, from which they can be
perceived, reproduced or communicated through a device;

=09Alternative C
(g)=09=93webcasting=94 means the making accessible to the public of
transmissions of sounds or of images or of images and sounds or of the
representations thereof, by wire or wireless means over a computer
network at substantially the same time.  Such transmissions, when
encrypted, shall be considered as =93webcasting=94 where the means for
decrypting are provided to the public by the webcasting organization or
with its consent.

Alternative D
(g)=09[No such provision]



[End of Article 2]

Explanatory Comments on Article 3

3.01=09Article 3 contains provisions that govern the scope of application
of the new Instrument.  The purpose of this Article is to facilitate the
decision making on this issue, which has been the most debated open
issue before the Standing Committee.  The provisions are formulated and
organized in such a way that the scope of application may be designed in
the new Instrument in an explicit and unambiguous manner, i.e. in the
clearest possible way.  The need for clear provisions is evident in
light of the discussions in the Standing Committee.

3.02=09Paragraph (1) lays down the fundamental basis of the scope of
application of the new Instrument in the area of broadcasting.

3.03=09Paragraph (2) is the provision by which Contracting Parties will
extend protection, by mutatis mutandis application, to the rights of
cablecasting organizations.

3.04=09Paragraph (3) offers to Contracting Parties two main alternatives
concerning the scope of application beyond broadcasting and cablecasting.

3.05=09Paragraph (3) in Alternative E offers the possibility of extending,
by mutatis mutandis application, the rights of broadcasting
organizations to the simultaneous and unchanged webcasting by them of
their own broadcasts (=93simulcasting=94).  It corresponds to the proposal
of the European Community and its Member States, which was based on the
legal techniques of assimilating such simulcasting to broadcasting (=93as
if it were broadcasting=94).  The provision has been reworded for the sake
of preciseness and consistency with the language of the consolidated text.

3.06=09Paragraph (3) in Alternative F offers, in line with the proposal of
the United States of America, the possibility of extending, by mutatis
mutandis application, to webcasting organizations the same protection
that will be accorded to broadcasting and cablecasting organizations.

3.07=09Paragraph (3) in Alternative G recognizes the limited support at
this stage of international debate for protection beyond the areas of
broadcasting and cablecasting.  This alternative would lead to the
adoption of Alternative D in Article 2(g), as the definition of
=93webcasting=94 would not be needed.

--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040