[Ecommerce] India: UNESCO should look at WIPO Casters' treaty (explanatory note)

[Manon Ress]

Sorry for crossposting this but here is an excellent description of the
casters' treaty by India.

For the 171 session of UNESCO,  India proposes item 65 on the agenda.
Full text of statement with proposed draft decision at the end of this
message.

QUOTE:
SNIP
Broadcasters are generally not the creators of the works they transmit.
They distribute the information embodied in the created works. Creators,
on the other hand, are granted protection over their works through the
various acts pertaining to copyright. Thus, broadcasters who are not the
creators of the works as such are not awarded rights over the content of
the programmes they transmit, but only over the use of their signals.
This separation between content and contentcarrying signal is crucial
for maintaining a proper balance between the rights of copyright-holders
as creators of works, and broadcasters as transmitters. It is vital to
maintain this distinction between the rights of copyright-holders as
creators of works, and of broadcasters as mere transmitters of signals.
Signal protection introduces a new layer of IP-like rights over and
above the IP rights of copyright-holders, thus impacting on the rights
of both the copyright-holder(s) and the rights of the public at large.

SNIP

The current proposals being mooted in the new broadcasting treaty under
consideration in WIPO are to extend protection to traditional broadcasts
   wireless means of transmissions, cablecasts, wired transmission,
transmission, and to even include webcasting transmissions over the
Internet computer networks. The exclusive rights that are proposed are
normally reserved for creators of works and not in respect of the
signals, as these would create a new layer of rights over those existing
in copyrights, whereby the separation between signal protection and
content could be blurred.

SNIP

The ability to access information is crucial in promoting the
dissemination of knowledge and production of more creative works,
including new technological developments. For developing countries in
particular, the question of accessing information is of primary
importance. Most of the cutting-edge research is done in developed
countries and thus the ability to access this information is a key
determinant for their development. Information in the public domain,
free for public use, benefits developing countries in that the costs of
access are either non-existent or low. It is in this context that
broadcasting organizations call for an  update  of their rights, which
while initially couched as a call for the protection of their signals
may go beyond this and extend to include exclusive rights, essentially
aimed at the protection of their investments.

12. If there has to be an understanding on broadcasters  rights, it must
at the very least ensure that it promotes access to knowledge and its
dissemination in the digital environment. Such rights must (page 3) not
interfere with the rights of the public and of other stakeholders to
protect and preserve the public domain.

13. The issue has implications for public policy goals, ethical issues,
economic, social and cultural rights, education and access to knowledge
and technology. They would require a broader perspective and discussions
with the participation of all stakeholders including civil society,
NGOs, academics and performers/artists/writers.

SNIP

  It is clear from the foregoing that the treaty for protection of
broadcasting organizations being formulated by WIPO seeks to create a
broad range of new rights that do not exist anywhere in any national law
by the creation of pseudo rights. It is likely to have a damaging impact
on the free flow of information. It attempts to superimpose a new layer
of rights on top of the rights of copyright owners. There is thus a risk
of privatization of information and knowledge currently in the public
domain. Moreover, the treaty intends to extend the term of protection to
50 years against the currently existing 20 years.

END OF QUOTE

Manon

STATEMENT:

United Nations Educational, Scientific and Cultural Organization
Executive Board ex Hundred and seventy-first session 171 EX/59 PARIS, 8
April 2005 Original: English

Item 65 of the provisional agenda

PROTECTION OF THE RIGHTS OF BROADCASTING ORGANIZATIONS SUMMARY

This item has been included in the provisional agenda of the 171st
session of the Executive Board at the request of India.

An explanatory note together with a proposed decision are attached.
Decision proposed: paragraph 18. 171 EX/59 EXPLANATORY NOTE 1.


Among the United Nations agencies, UNESCO is the specialized agency,
that works as a  laboratory of ideas and standard setting  to forge
universal agreements on emerging ethical issues. It serves as   a
clearing house for the dissemination and sharing of information and
knowledge . Its mandate, inter alia, includes, promoting international
cooperation in the diverse fields of education, science, culture and
communication.

2. It may be added that the Draft Programme and Budget for 2006-2007 (33
C/5) of UNESCO has identified the principal priority for the
communication and information sector as: empowering people through
access to information and knowledge, with special emphasis on freedom of
expression; and that the main thrusts of action under this principal
priority shall be: promoting freedom of expression, creating an enabling
environment which is conducive to facilitating universal access to
information and knowledge, developing effective infrastructures, and
stimulating the development of, and access to, diverse contents. It
further recommended that the  other priorities  include, inter alia,
promoting communication development, with special regard to an
independent and pluralistic media; and advancing the use of ICTs.

3. There has been, of late, much discussion on the protection of
broadcasting in different forums and it is necessary to appraise the
rights and role of UNESCO in this regard. As per the core mandate of
UNESCO, broadcasting is a part of the activities of the Communication
and Information Sector of UNESCO. Besides, UNESCO is engaged in
activities aimed at building a knowledge society. While bridging the
digital divide, UNESCO has been promoting freedom of expression and
freedom of access to information. It also serves as a watchdog for press
freedom. All these issues are relevant and must be factored into the
ongoing discussions on the protections of broadcasting rights.

4. The World Intellectual Property Organization (WIPO) is currently
engaged in the drafting of a separate treaty to protect broadcasting
rights. The distribution of information in the form of works can be done
through various means of transmission, including wireless media such as
satellite, radio or television, or through wireless communications such
as cable networks or though simulating and webcasting using the
Internet. At present, broadcasting organizations are granted legal
protection only over those transmissions made through wireless means.

5. Broadcasters are generally not the creators of the works they
transmit. They distribute the information embodied in the created works.
Creators, on the other hand, are granted protection over their works
through the various acts pertaining to copyright. Thus, broadcasters who
are not the creators of the works as such are not awarded rights over
the content of the programmes they transmit, but only over the use of
their signals. This separation between content and contentcarrying
signal is crucial for maintaining a proper balance between the rights of
copyright-holders as creators of works, and broadcasters as
transmitters. It is vital to maintain this distinction between the
rights of copyright-holders as creators of works, and of broadcasters as
mere transmitters of signals. Signal protection introduces a new layer
of IP-like rights over and above the IP rights of copyright-holders,
thus impacting on the rights of both the copyright-holder(s) and the
rights of the public at large.

6. The protection granted to broadcasting organizations is intended to
be limited to the signals of the broadcasts they transmit in order to
prevent third parties from using these without their authorization (i.e.
signal piracy) that could cause economic losses for broadcasters
particularly in the cases where they receive payment for their emitted
transmissions of works. Some additional rights have been granted to them
over the use of their signals in recognition of the investments they
make in providing for the transmission of works that benefit the
eventual consumers.

171 EX/59   page 2

7. Protection of broadcasting organizations is already provided for in
several international treaties, namely the 1961 Rome Convention on the
Protection of Performers, Producers of Phonograms and Broadcasting
Organizations, and in the TRIPS Agreement. The Rome Convention 1961,
vide Article 6, provides for national treatment to broadcasting
organizations subject to certain conditions. Article 7 gives the right
to performers to prevent broadcasting or communication to the public,
fixation, reproduction of fixation and describes the relation between
the performers and broadcasters. It allows domestic law to regulate such
protection. However, the domestic law is not to operate to deprive the
performers of the ability to control their relations with a right to
authorize or prohibit rebroadcasting, fixation and reproduction and
communication of television broadcasts in public places accessed by
paying a fee.

8. The Berne Convention of 1971 provides authors of literary and
artistic works the exclusive right of authorizing the broadcast of their
work or communication to the public by wire and wireless, rebroadcast by
an organization different from the first and public communication by
loudspeaker, etc. of the broadcast. It allows for compulsory licensing.
The members can legislate to allow ephemeral recordings by broadcasters
and it allows for preservation for documentary purposes.

9. The Brussels Convention (Satellite Convention) of 1974 protects
broadcasters  rights by allowing members to prevent distribution of
programme-carrying signals by any distributor for whom the signals are
not intended. The duration is to be decided by national law. However,
the restriction does not apply where signals are to be received directly
by the public. This also allows fair practice use for information,
education or scientific research in developing countries. This provision
does not limit the rights of authors, performers, etc. It allows members
to prevent abuses of monopoly. The TRIPS Agreement, on the other hand,
provides less protection for broadcasting organizations than that given
under the Rome Convention. It establishes that broadcasters have the
right to prohibit   but not to authorize   the fixation, reproduction of
fixation, and the rebroadcasting by wireless means of broadcasts and
live performances. Where members do not grant such rights to
broadcasters, the copyright-owners may be provided such rights subject
to the provisions of the Berne Convention.

10. The current proposals being mooted in the new broadcasting treaty
under consideration in WIPO are to extend protection to traditional
broadcasts   wireless means of transmissions, cablecasts, wired
transmission, transmission, and to even include webcasting transmissions
over the Internet computer networks. The exclusive rights that are
proposed are normally reserved for creators of works and not in respect
of the signals, as these would create a new layer of rights over those
existing in copyrights, whereby the separation between signal protection
and content could be blurred.

11. The ability to access information is crucial in promoting the
dissemination of knowledge and production of more creative works,
including new technological developments. For developing countries in
particular, the question of accessing information is of primary
importance. Most of the cutting-edge research is done in developed
countries and thus the ability to access this information is a key
determinant for their development. Information in the public domain,
free for public use, benefits developing countries in that the costs of
access are either non-existent or low. It is in this context that
broadcasting organizations call for an  update  of their rights, which
while initially couched as a call for the protection of their signals
may go beyond this and extend to include exclusive rights, essentially
aimed at the protection of their investments.

12. If there has to be an understanding on broadcasters  rights, it must
at the very least ensure that it promotes access to knowledge and its
dissemination in the digital environment. Such rights must (page 3) not
interfere with the rights of the public and of other stakeholders to
protect and preserve the public domain.

13. The issue has implications for public policy goals, ethical issues,
economic, social and cultural rights, education and access to knowledge
and technology. They would require a broader perspective and discussions
with the participation of all stakeholders including civil society,
NGOs, academics and performers/artists/writers.

14. As previously mentioned, UNESCO s mandate includes standard setting.
It has previous experience in issues that are directly related to
intellectual property rights and education. In 1952, UNESCO adopted the
Universal Copyright Convention, which served to extend copyright
protection to numerous States, not then party to the Berne Convention,
for the protection of literacy and artistic works. The Universal
Copyright Convention was revised in 1971 to extend intellectual property
protection from scientific and literacy texts to films and sculpture.
Given its experience with this instrument, UNESCO is eminently qualified
to address the concerns of broadcasters in a digital society, while
recognizing ethical issues such as access to knowledge, societal
interests, and issues of the basic economic, social and cultural rights
of all the stakeholders. One of UNESCO s programmes for creative content
seeks to stimulate innovation in the legal content of protection for
television, radio and news media in developing countries by promoting
cultural and linguistic diversity. For all these reasons, UNESCO is
uniquely placed to address all the related issues of broadcasters.

15. It is clear from the foregoing that the treaty for protection of
broadcasting organizations being formulated by WIPO seeks to create a
broad range of new rights that do not exist anywhere in any national law
by the creation of pseudo rights. It is likely to have a damaging impact
on the free flow of information. It attempts to superimpose a new layer
of rights on top of the rights of copyright owners. There is thus a risk
of privatization of information and knowledge currently in the public
domain. Moreover, the treaty intends to extend the term of protection to
50 years against the currently existing 20 years.

16. The main question arises as to whether the protection of
broadcasting signals is at all an issue of copyright alone. The Rome
Convention involved UNESCO, ILO and WIPO while the Brussels Convention
involved ITU in addition to the other three agencies. Hence there is a
need for UNESCO to be watchful in this area, which in any case relates
to its core mandate and operations.

17. It may be concluded that the protection of the rights of
broadcasting organizations, to the extent it is warranted, is already
provided in several international treaties. It can be argued, therefore,
that there is perhaps no need to have a separate treaty and that a
convention could very well address the issues at stake. However, if some
additional work remains to be done in this area, then UNESCO can fully
address these issues given its wide mandate on core areas of
communication, information, culture and education. UNESCO should be
involved in these efforts together with organizations like WIPO. We
propose that these ideas could form the basis for a discussion paper for
the forthcoming meeting of the Executive Board and subsequently at the
General Conference later this year. Proposed draft decision

18. Taking into consideration the above-mentioned points, the Executive
Board may wish to adopt a decision along the following lines: 171 EX/59
   page 4

The Executive Board,

1. Having examined document 171 EX/59,

2. Noting that the issue related to broadcasting comes within UNESCO s
core mandate as part of the activities of the Communication and
Information Sector,

3. Recalling that the principal priority identified for the
Communication and Information Sector is  empowering people through
access to information and knowledge , with special emphasis on freedom
of expression,

4. Further recalling the Rome Convention on the Protection of
Performers, Producers of Phonograms and Broadcasting Organizations, the
WIPO Performance and Phonograms Treaty (WPPT), the WIPO Copyright Treaty
(WCT) and the TRIPS Agreement which already provide protection to the
rights of broadcasters,

5. Takes note of the developments at World Intellectual Property
Organization (WIPO) aimed at finalizing a new convention on broadcaster
s rights;

6. Recognizing that attempts to impose another layer of rights over and
above the intellectual property rights of copyright holders impact the
rights of both the copyright holder(s) and the rights of public at large
and act as impediment to preservation of information and universal
access to it and participation of all in the emerging global information
society,

7. Stresses the importance of promoting and enhancing the public domain
as a vital means of providing access to information and knowledge and
ensuring that any convention on broadcasting does not curtail access to
public domain materials that are accessible only through broadcast;

8. Also recognizing that such regulations have a negative impact on the
free flow of information essential to building of knowledge societies
and that the separation between content and content-carrying signals is
crucial for maintaining the distinction between the rights of
copyright-holders as creators of works and broadcasters as transmitters
of signals,

9. Reaffirms that UNESCO is committed to promoting freedom of
expression, creating an enabling environment, which is conducive to
facilitating universal access to information and knowledge, developing
effective infrastructures and stimulating the development of and access
to, diverse contents;

10. Thanks the Government of India for taking an initiative on this
issue of immense concern to UNESCO;

11. Invites the Director-General to ensure that UNESCO, as the
specialized agency within the United Nations system dealing with the
issue of communication and information, plays an active role at any
deliberations that impact its mandate;

12. Further invites the Director-General to place before the General
Conference at its 33rd session a roadmap for the preparation of a
convention on broadcasting and emerging technologies to protect and
enhance access and sharing of knowledge and information.
--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

Consumer Project on Technology in Washington, DC PO Box 19367,
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