[Ecommerce] (Civil Society Coalition) WIPO Broadcasting/Webcasting Treaty: Not Ready for Prime Time-Outstanding Issues

[Thiru Balasubramaniam]

SCCR 14 Geneva May 1-5, 2006

Civil Society Coalition
WIPO Broadcasting/Webcasting Treaty: Not Ready for Prime Time

Outstanding Issues

1. The draft treaty will create untested exclusive rights for webcasters
by making them beneficiaries of the treaty.

The webcasting appendix is part of the main text, despite opposition to
its inclusion in the treaty by a majority of Member States. Even though
webcasting is framed as an =93opt-in=94 provision, it creates a backdoor fo=
r
the upward harmonization of webcasting rights. The current open
architecture of the internet has engendered a robust ICT industry thus
obviating the need for "incentives" supposedly created by exclusive
rights. Furthermore, these new rights will hurt copyright owners by
creating rival channels to exploit their works and threaten the public
domain works. There are serious definitional problems with the
proposal's approach to webcaster rights. It is so broad that it will
burden all World Wide Web content (including text and still images) with
a rights framework that was designed for broadcasting radio waves over
the air.


2. The draft treaty does not effectively address protection against
signal piracy but grants broad exclusive rights to transmitters
regardless of their actual needs.

The draft treaty grants exclusive rights for retransmission, fixation,
reproduction, deferred transmission based on fixation, and making
available of fixed broadcasts in exclusive rights for a term of 50
years. In their zeal to create a treaty to address protection against
signal piracy, WIPO and its Member States have turned to the exclusive
rights based model of WIPO =93Internet=94 treaties for inspiration. It is
not clear why the draft treaty has not adopted a purely signal
protection based approach as it would directly address the issue of
signal piracy without the negative externalities associated with the
current draft. The exclusive rights system envisioned by the draft
treaty is a case of the cure killing the patient.

3. The draft treaty would grants broadcasters, cablecasters and
webcasters a new layer of sui generis rights to protect creative works
already protected by copyright

For the public, a broadcast is not only an important source of
entertainment, it is also and essential source of information, the
dissemination of cultural goods and provides much needed educational
content in many countries. Broadcasts include copyrighted content that
is licensed to a broadcasting organization and content in the public
domain. The proposed treaty on the protection of broadcasting,
cablecasting and webcasting organizations creates new limits on the
rights of citizens to use knowledge goods, undermining important
limitations and exceptions in traditional copyright laws, builds
barriers for innovation and the dissemination of knowledge goods and
increases the opportunity for anti-competitive practices, such as
segmenting markets, which raise costs and limit consumer access to
culture and information. For audiovisual creators and performers,
broadcast is essential to communicate their works and get access to
other creators' works. While we recognize that broadcasters are
providing an important service and need to protect their signal, it is
not clear why they should be granted an additional layer of exclusive
rights "like copyrights". Broadcasting organizations are already
protected all over the world if not under a related rights regime under
other regulatory regimes.

4. The draft treaty does not clearly define the difference between
content and signal and includes all work protected and non protected.

Although Article 3 of the draft treaty is careful to delineate the scope
of application to signals and =93not to works and other protected subject
matter=94, it is silent on the matter of non-protected works and
non-protected subject matter (i.e. data, facts and works in the public
domain). This leaves the door open for abuses of the treaty which could
encroach upon the public domain. Despite the caveat of Article 3 which
appears to give comfort to content owners that their rights will not be
eroded, the treaty confers upon broadcasters, cablecasters, and
webcasters the exclusive rights to authorize retransmission, fixation,
reproduction, deferred transmission following fixation and making
available of fixed broadcasts. This gives rise to a potential logjam of
overlapping rights and conflicts; under the current draft treaty, even
if a copyright holder or related rights holder authorized program
material to be incorporated in a broadcast/cablecast/webcast by a third
party, the third party would still need to seek permission from the
casting entity. In addition, for works in the public domain, the treaty
would have the deleterious effect of locking up works and subject matter
in the public domain for 50 years.

5. The draft treaty is giving more rights than the Rome or TRIPS but
does not grant more exceptions.

The draft treaty does not grant limitations and exceptions commensurate
to the broad rights conferred upon broadcasters, cablecasters and
webcasters. Thus while the proposed treaty strengthens the control of
these casting organizations over their transmissions by providing a
package of exclusive rights on retransmissions, fixation, reproductions,
deferred transmission following fixation and making available of fixed
broadcasts, the limitations and exceptions envisaged by the main draft
treaty text are modest. Article 12 of the draft treaty frames the
limitations and exceptions to the rights of casting organizations under
the architecture of Article 15.2 of the Rome Convention and the Berne
Convention=92s three-step test for copyright. However, these limitations
and exceptions do not adequately address the concerns of right holders
with the respect to the demarcation between copyright and related rights
protection and signal protection. As noted raised by the Government of
Canada at the 10th SCCR,

[i]n the case where a broadcaster would transmit content protected by
copyright or related rights, the owner of that content should have the
right to authorize any act which would otherwise require the consent of
the broadcaster. In this way the rights of broadcasting organizations
would not interfere with the rights in the content.

With respect to the transmission of subject matter NOT protected by
copyright or related rights, the Brazilian intervention at the 13th SCCR
provided language where a Contracting Parties were given the flexibility
of exempting from protection =93[a]ny use of any kind in any manner or
form of any part of a broadcast where the program, or any part of it,
which is the subject of the transmission is not protected by copyright
or any related right thereto=94 provides an effective complement to the
Canadian proposal.

It is disappointing that the main draft treaty text does not contain the
constructive proposals by the Government of Brazil on =93General Public
Interest Clauses=94 and the Government of Chile on =93Defense of
Competition=94. The Brazil proposal on general public interest clauses
underscores the principle that protection for broadcasters, cablecasters
and webcasters should not undermine access to knowledge or cultural
diversity.

Along with limitations and exceptions, competition policy is another
instrument in a State=92s arsenal to curb the abuse of copyright and
related rights. Consequently, the Chilean proposal a timely as it tracks
the language of Article 40 of the TRIPS Agreement which prescribes
measures on remedying anti-competitive practices.


6. The draft treaty extends the term of protection for broadcasts from
20 years to 50 years without providing a clear rationale for the extension.

The explanatory note prepared by the Chair and the International Bureau
asserts that the 50 term of protection in Article 13 corresponds to
Article 17(1) of the WIPO Performances and Phonograms Treaty (WPPT)
concerning the term of protection of performers=92 rights. TRIPS Agreement
and the Rome Convention currently require a 20 year minimum term of
protection for broadcasting organizations which is supported by
Singapore, India, Brazil and the Asian Group. The extension in the term
of protection accorded to broadcasters to achieve parity with performers
is unwarranted considering that this draft treaty creates a precedent
for rewarding investment by conferring monopoly privileges for
non-creative endeavors.

7. The draft treaty creates a new layer of orphan works.

The draft treaty appears to be silent with respect to =93orphan works=94
consisting of subject matter and other works whereby the original author
of a work or subject matter transmitted through a broadcast, cablecast,
and webcast cannot be identified. As the copyright status of orphan
works is ambiguous, the current paradigm of the draft treaty would
create an additional layer of exclusive rights for orphan works.

8. The draft treaty grants broadcasters, cablecasters and webcasters
legally sanctioned technological protection measures that are useless
for works already protected by TPMs and against the public interest in
the case of non-protected works.

The proposal to allow broadcasters the right to use technological
protection measures (TPMs) is not required to protect broadcasters
signals and would pose threats to the rights of consumers and the
investigative work of consumer organizations. TPMs act as locks that can
be used to prevent access to broadcasts, and to segment markets using
region coded TPM=92s so broadcasters can raise prices and limit the
availability of products.

The costs to the public of the restrictions caused by TPMs far outweigh
any benefit to broadcasters. TPMs previously approved by WIPO have been
shown to harm competition and technological innovation but have not been
effective in stopping copyright infringement. It is therefore
inappropriate to grant legal protection to a further and broader layer
of technical measures.

The proposed Treaty outlaws circumvention of technology locks that
prevent fair use. The Proposed Treaty forbids the decryption of
broadcast signals, even if the programming is in the public domain or
when its creator does not wish to suppress its distribution. It outlaws
a broad range of devices (including personal computers), software, and
other technical information that could help a consumer to decrypt a
broadcast signal. Without the ability to circumvent technological locks
consumers are unable to exercise any exemptions, such as private
copying. They are thus left with a paper right without a remedy, while
broadcasters have legally and technologically. enforceable rights. The
restrictions on anti- circumvention should be removed from the treaty.
The Colombian proposal to permit non-infringing use of a broadcast
through the circumvention of a TPM is a welcome step in the right
direction to redress the concerns of the public.



For more information, see:

http://www.cptech.org/ip/wipo/bt/index.html