[Ecommerce] Statement by NGOs Concerned with the Protection of Broadcasts and Broadcasting Organisations

[Manon Ress]

The Broadcasters' treaty will be discussed at WIPO headquarters in
Geneva June7-9, 2004. Please find a Joint Statement by NGOs and a
proposal for a signal protection treaty. Feel free to circulate the
statement and the draft and send us comments.
Manon

The undersigned organisations represent a broad cross-section of NGOs
representing constituencies with a direct interest in the discussions
currently underway in the Standing Committee on Copyright and Related
Rights regarding a possible international instrument protecting
broadcasts and the rights of broadcasting organisations.

All of the undersigned have in the past expressed reservations about the
discussions on a possible new Instrument in many respects. After closely
examining the Chairman=92s Text =96 and the rights-based formulation which
it centred on =96 we would submit for the consideration of delegations
that the following fundamental principles should be at the heart of
further discussions, and of any new Instrument which might proceed from
them:


1 *Any new instrument relating to broadcasting should protect the signal
used to carry broadcast programmes only*. We note that there is
effectively universal agreement with this concept amongst participating
delegations, judging by previous meetings of the Standing Committee;

2 *Copyright and/or neighbouring rights protections should be reserved
to protect creativity =96 not signals.* We are also encouraged by the many
delegations who have expressed this view;

3 As has been expressed by many delegations, *signal protection
language, not that of copyright or neighbouring rights, is the most
appropriate to protect the signals of broadcasters. * We note that
several delegations have put forward language along these lines, using
formulations inspired by Article 2 of the Satellites Convention =96 a
number of NGOs have used this same Convention as the basis for several
modifications and additions to the Chairman=92s Text, which has been
provided to delegations for their consideration separately;

4 *It is essential that balance be maintained in the international
copyright system =96 and that broadcasters=92 rights should not surpass
those of other rights-holders, or those of the public. *

We do understand that Contracting Parties to the Rome Convention might
be concerned that a fundamentally signal-protection-based Instrument
would leave them in violation of Article 22 of the Rome Convention =96
that Article 22 in some way obliges Contracting States to Rome to use
the same rights-based formulation to provide greater rights =96 however we
do not believe this is the case =96 it would be very easy to argue that
very comprehensive protection of signals based upon a /mutatis mutandis/
use of Article 2 of the Satellites Convention language would constitute
considerable further protection than Rome provides, were an instrument
based upon such a structure to provide no further exclusive rights at all.

We are troubled by the number of minor reservations and notifications
which the Chairman=92s Text provides. We would submit that this simply
illustrates once again how little agreement on many points of
significant substance exists, and as a result how much more consultation
is required in order to move to the next stages of this process, if such
stages are to be reached at all.

Perhaps more fundamentally, we understand that the signals used to carry
broadcasts from the transmitter to the public are destroyed upon
reception by the receiver as the receiver makes the programme that they
carry perceivable =96 or fixable. As a consequence, providing rights that
depend upon a =91fixed signal=92 such as reproduction, distribution,

and/or making available are fundamentally based upon something which
does not exist. We would submit that it is not congruent to suggest, as
the Chairman=92s Text does in Article 1(2), that the Treaty covers the
broadcasters=92 signals only, and then to provide rights to fixate,
reproduce, distribute, and make available fixations of, signals =96
especially since there is no commercial value to a recording of a signal.

The signal-protection-based approach that we recommend has further benefits=
:

   1. It allows for a much simpler, and much shorter, Instrument to be
      developed whilst providing greater protection than a rights-based
      formulation =96 greater protection against piracy can be provided
      more comprehensively, and more fairly;
   2. The interpretation of the new Instrument, and the provision into
      national law of Contracting Parties, should be much simpler, as
      there is no need to reconcile overlapping similar rights for the
      same beneficiaries which are embodied in the provisions of
      separate Treaties when giving force to the provisions of the new
      Instrument.

We remain at the disposal of the members of the SCCR to further explain
and elaborate the views contained in this paper.


*CPTech
Consumer Project on Technology


EDRi
European Digital Rights


FIPR
Foundation for Information Policy Research


IMMF
International Music Managers Forum

*

*AT:
http://www.cptech.org/ip/wipo/wipo-casting.html

*

*May 20, 2004. Statement by NGOs Concerned with the Protection of
Broadcasts and Broadcasting Organisations
<http://www.cptech.org/ip/wipo/Draft_Joint_Position_v1.doc>* **

***May 20, 2004. PROPOSAL BY NGOS FOR A TREATY ON THE PROTECTION OF
BROADCASTS AND BROADCASTING ORGANIZATIONS - version 2.
<http://www.cptech.org/ip/wipo/ngo-broadcast-proposal-v2.pdf>***

--
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176