[Ecommerce] FromGeneva: WIPO copyright committee discusses simulcasting/webcasting
and mulls way forward
Thiru Balasubramaniam
thiru@cptech.org
Fri May 5 11:09:16 2006
http://fromgeneva.blogspot.com/2006/05/wipo-copyright-committee-discusses.html
WIPO copyright committee discusses simulcasting/webcasting and
mulls way forward
5 May 2006
Thiru Balasubramaniam
16:59 (Geneva time)
This is the last hour of the 14th Session of the WIPO Standing Committee
on Copyright and Related Rights (SCCR) meeting yet again to discuss a
proposed treaty for the protection of broadcasters, cablecasters and
webcasters. Simulcasting has been discussed over the last two days. An
example of simulcasting would be the British Broadcasting Corporation
(BBC) showing a speech or a movie in the public domain on its website.
As currently defined by WIPO's draft basic proposal, simulcasting is
covered by Article 6
Broadcasting organizations shall enjoy the exclusive right of
authorizing the retransmission of their broadcasts by any means,
including rebroadcasting, retransmission by wire, and retransmission
over computer networks.
This wording would give broadcasters the right of simultaneous
retransmission over a computer network. Article 6 has been viewed with
concern by some as a Trojan horse mechanism of giving "webcasting"
privileges to traditional broadcasters. He noted that there was
considerable opposition to the inclusion of webcasting but some broader
support for simulcasting. However, delegations such as India, Brazil and
South Africa expressed reservations to including simulcasting in the
treaty. India suggested deleting the phrase "by any means" and "over
computer networks".
At the wrap-up of last night's session, the Chair (Jukka Liedes of
Finland) underscored the importance he attached to retransmission rights
which would include simulcasting. Mr. Liedes stressed that deleting
references to simulcasting would empty the whole treaty of its purpose.
He also noted that the deletion of simulcasting would deprive
traditional broadcasters of protection of their broadcasts retransmitted
over the internet.
There is a danger if simulcasting is covered under this treaty,
webcasting will creep back into a later formulation of the Treaty text
or a subsequent protocol as evidenced by the intervention of the United
States of America today which articulated its concern that excluding
webcasting while including simulcasting would confer upon broadcasters
and cablecasters an unfair advantage over such corporations as Yahoo.
The delegate from India noted that while his delegation could
"sympathize with concerns of broadcasting organization about signal
piracy or unauthorized retransmission over computer networks" this would
be a difficult obligation to administer because of limited knowledge of
internet enforcement.
He stressed that it is
difficult to know where source of digital transmission is, so to be
effective enforcement would amount to effective regulation of entire
Internet. we therefore find it very difficult. While it seems
attractive conceptually, it is fraught with many practical, legal
uncertainties. Article 6 needs to be cleansed of the words "by any
means" and "over computer networks"...Simulcasting or transition by
computer networks should not be contained in the draft basic
proposal on traditional broadcasting...I would remind many that we
often have technology neutral goals but in actuality many member
states have much more specific laws relating to the Internet and
other forms of digital transmission and case law on the subject is
extremely limited. Therefore it is better and more appropriate for
all of us to hasten slowly and not plunge, until we know the
consequences of what is involved.
Mr. Tilman Lueder from the European Commission speaking on behalf the
European Communities and its 25 Member States gave a lengthy
intervention on the nature of simulcasting. Mr. Lueder highlighted that
in large countries such as the United States, Brazil, India and Canada,
"retransmission is the lynchpin to make a signal more perceptible over
long distances" where signals could not travel coast to coast but needed
to be relayed. Mr. Lueder noted that the protection of digital signals
was of utmost importance and underscored that fact that television is
mostly about entertainment and not just limited to educational and
scientific purposes. He remarked that if broadcasters and those who
scheduled and assembled content were not protected, there would nothing
left to steal.
India responded by thanking the European Communities for being educated
on the distinction between analog and digital signals. He stated that
content is now being digitalized, but the difference is that the content
may be digitalized but it may still be transmitted over analog waves.
We are talking about retransmission on the terrestrial network where
signal does get abated and needs to get 'boosted' and retransmitted,
whereas digital signal does not abate. Satellite carriers carry
digital signals in a more efficient manner. Therefore
'retransmission' has a very different meaning today. Notwithstanding
this issue as to what retransmission exactly means. What we are
talking about is the IPR over those transmissions. We need to define
the broadcast clearly so that we know who has IPR over that
broadcast. When we talk about the internet we are talking about
something outside of traditional broadcasting. My understanding of
Berne and TRIPS is that even the content owners don't have full
rights over their work on the internet to then assign a new right
(which does not yet exist) to broadcasters in relation to the
internet is unsupportable. What we are really talking about is the
IPR over those transmissions and as I mentioned, the broadcast
itself has to be defined to understand who has the IPRs over the
content. Copyright owners do not have full and adequate protection
themselves on the Internet, therefore to give broadcasters rights
over the Internet becomes even more untenable. Therefore that is why
we have been talking about the IPRs over content. A broadcast needs
to be defined with respect to its relationship with intellectual
property.
As there was considerable opposition to webcasting and simulcasting in
the draft treaty text for the protection of broadcasting organizations
and cablecasting organizations, Mr. Liedes suggested the modalities for
the following SCCR:
A. Protection of traditional broadcasting and cablecasting organizations.
1. One more meeting of the SCCR before the General Assembly
(September/October 2006)
2. The agenda of that meeting will be confined to protection of
broadcasters and cablecasters in the traditional sense (broadcast and cable)
3. A revised basic draft basic proposal will be prepared for the meeting
and all efforts will be made to make it available to the Member States
by August 1 2006. It will be made on the basis of SCCR/14/2 and
SCCR/14/3 and now-existing proposals and taking account the discussions
of this committee.
4. There will be a recommendation to the GA to convene a DC at a
suitable time in 2007.
B. A proposal on protection of webcasting and simulcasting.
1. The deadline for the proposals foreseen at 14th session of SCCR
concerning these webcasting and simulcasting, will be Aug. 1 2006.
2. The revised document on protection of webcasting and simulcasting
will be prepared on basis of SCCR/14/2, and the proposals, and taking
into account discussions of the committee
3. A consultation will be taken on the matter of a meeting of an SCCR to
be convened after the General Assembly.
In response to this proposed work program, the United States noted their
concern about the "missed opportunity" undertaken to create now under
the proposal to separate consideration of webcasting from the
broadcasting/cablecasting instrument.
The United States suggested that if the General Assembly did not make a
recommendation on convening a Diplomatic Conference, the webcasting
could be considered along with traditional broadcasting in following
sessions of the Standing Committee on Copyright and Related Rights.
Although it appears that simulcasting and webcasting will not be
included in the proposed instrument on broadcasting and cablecasting, we
should not rule out their re-appearance in subsequent meetings of the
WIPO Standing Committee on Copyright and Related Rights.
[Inputs from: Jason Pielemeier-Yale Information Society Project, Gwen
Hinze -Electronic Frontier Foundation, and Rufus Pollock- Open Knowledge
Foundation]