[Ecommerce] NGO Draft for a treaty on the protection of broadcasts and broadcasting organizations

[Manon Ress]

The Standing WIPO Committee on Copyright and Related Rights is meeting
on November 17-19, 2004 in Geneva to discuss the broadcasters,
cablecasters and webcasters' treaty.

The Chair has prepared a second draft, the "Revised Consolidated text
for a treaty on the protection of broadcasting organizations".

The proposed treaty has been controversial for several reasons
including:  it creates new exclusive rights (distribution, transmission
of fixation, making available, pre transmission) for broadcasters,
cablecasters and webcasters (2 new beneficiaries).  It proposes
extending the term of protection existing in Rome and TRIPS from 20
years to 50 years and give brooadcasting, cablecasting and webcasting
organizations new technological protection measures and rights
management information.

If this treaty was limited to SIGNAL clearly differentiated from
CONTENT, there will not be much controversies.  But since, the
consolidated text is still not clear on this, an informal group of NGOS
has produced a second draft of their signal protection only proposal.
It is available at :

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

SNIP:
Objectives of the new NGO draft:

All of the undersigned NGOs have previously expressed reservations about
the discussions on a possible new Instrument in many respects. After
closely examining the Chairman s Text   and the rights-based formulation
upon which it is based   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:

  " 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;

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

" 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   a number of NGOs have used
this same Convention as the basis for several modifications and
additions to the Chairman s Text, which has been provided to delegations
for their consideration separately;

" It is essential that balance be maintained in the international
copyright system   and that broadcasters  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 Convention1
that Article 22 obliges Contracting States to Rome to use a rightsbased
formulation to provide greater rights   however we do not believe this
is the case. 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 understand that there are many parties to the Rome Convention and,
though we believe that Convention granted rights far in excess of what
broadcasters actually need or should have, we accept that memberstates
will be unwilling to fundamentally revise that Convention. As a
consequence, and in order to illustrate that no conflict between a
signal-protection-based approach exists, we have updated this text to
include the provisions of the Rome Convention which apply to
broadcasters, for broadcasters only; we have retained the
signal-protection-based approach for cablecasting.

We are troubled by the number of minor reservations and notifications
which the Chairman s Text provides   and note that the latest draft has
introduced several more of these, rather than reducing those in the text
introduced for SCCR 11. 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 support legal protection for broadcast
signals until the point of reception and their initial fixation. We
understand that the signals used to carry broadcasting content cease to
exist upon reception by the receiver as the receiver renders the signal
perceivable by viewers. Article 1(2) of the Chairman's Text recognizes
that the Treaty is intended to cover only broadcasters' signals, and is
not intended to provide rights that might conflict with copyright and
related rights in program material incorporated in broadcasts, but in
our view additional clarity is required which we have provided by
inserting additional language to this effect in Article 1(b), and
providing a definition of  Signal  in Article 2. Unfortunately, many of
the rights provided in the draft Text, including the rights to reproduce
(Article 9), distribute (Article 10), deferred transmission following
fixation (Article 11) and making available to the public (Article 7),
are not rights that can exist in signals per se, but are instead
predicated on granting exclusive rights in downstream uses of the
fixations of signals. We believe that the Treaty is not intended to, and
should not, extend to subsequent uses of fixed signals, because these
may interfere with the overlapping copyright and related rights that
already exist in the content of previously fixed broadcast signals   and
therefore that the extra clarity we ve provided in Article 1(b) is of
great importance.

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   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.


Point of Contact We welcome any comments or queries which either
delegations or other NGOs may have. Nick Ashton-Hart of the IMMF is
acting as the co-ordinator of the working group; any questions or
queries can be referred to him and he will pass them on to the rest of
the group, and/or help interested parties reach those with particular
expertise on the particulars of different sections of the text. He can
be reached as follows: Main Telephone: +44 (20) 8800-1011 Mobile
Telephone: +44 (7774) 932 798 Email: nicka@immf.net


1 Article 22 of the Rome Convention reads as follows:  Contracting
States reserve the right to enter into special agreements among
themselves in so far as such agreements grant to performers, producers
of phonograms or broadcasting organisations more extensive rights than
those granted by this Convention or contain other provisions not
contrary to this Convention.  NGO Proposal for SCCR 12 Page iii














--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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