[Random-bits] KEI's statement on WIPO Broadcasting treaty negotiations
James Packard Love
james.love@keionline.org
Tue Jun 19 10:02:08 2007
This treaty proposal is a real mess, and one could address so many =20
different topics, it is hard to know what to focus on. This is what =20
we addressed in our interventions today (June 19) on the WIPO =20
Broadcasting Treaty.
http://www.keionline.org/index.php?option=3Dcom_content&task=3Dview&id=3D8=
9
KEI June 19, 2007 Statement on WIPO Broadcasting Treaty
Delegates should reject the 20 April non-paper. The 1974 Brussels =20
Convention on the Distribution of Programme-Carrying Signals =20
Transmitted by Satellite=94 May Provide A Useful Model for a Signal-=20
Based Treaty
19 June 2007
Background
The 2006 GA decision focused on =93the protection of broadcasting and =20=
cablecasting organizations in the traditional sense.=94 It provided =20
that the Basic Proposal is document SCCR/15/2, with the understanding =20=
that all Member States may make proposals at the Diplomatic =20
Conference. However, because of the wide differences in views on the =20=
treaty, and to prevent a failed diplomatic conference, the GA called =20
for two special sessions of the SCCR, to =93clarify the outstanding =20
issues=94 with the:
=93aim to agree and finalize, on a signal-based approach, the =20
objectives, specific scope and object of protection with a view to =20
submitting to the Diplomatic Conference a revised basic proposal, =20
which will amend the agreed relevant parts of the Revised Draft Basic =20=
Proposal.=94
If no such agreement is achieved, further discussions are to be based =20=
on document SCCR/15/2, and the decision to hold the diplomatic =20
conference will be difficult, given the strong divergence of views on =20=
substantive provisions.
What the =93signal-based approach=94 is about
The debate at the SCCR concerned the costs and benefits of imposing a =20=
layer of intellectual property rights on broadcasts. Critics of a =20
strong intellectual property right for broadcasters wanted to avoid =20
an outcome that undermined the rights of the copyright owners, =20
created a new thicket of necessary permissions to use works, and =20
harmed consumers.
However, there was support for a treaty that would provide =20
protections against the piracy of signals, to the extent that problem =20=
actually exists.
Those who did not want a strong set of exclusive rights associated =20
with the transmission of broadcasts used to the term =93signal based=94 =20=
to describe a treaty that focuses on the problem of piracy of signals.
The underlying idea was that the broadcasters should have the =20
protection necessary to make sure their broadcasts were not hijacked, =20=
but that once someone received a legitimate broadcast signal, the =20
broadcaster protections would end, and the content of the programs =20
would be protected only by copyright or the related rights associated =20=
with creative parties such as performers and producers of phonograms.
What the Non-Paper Did
The longstanding SCCR Chair supports a =93rights based=94 treaty, and =20=
that is what is presented in his 20 April 2007 non-paper. The =20
sweeping intellectual property rights given to broadcasters are set =20
out most importantly in Article 7:
Article 7
Protection of Broadcasts
Broadcasting organizations shall enjoy the exclusive right of =20
authorizing the retransmission of their broadcasts, and the deferred =20
transmission by any means to the public of their fixed broadcasts.
This appears to give the broadcaster exclusive rights to more than =20
the broadcasts, but to =93any means=94 of transmitting works to the =20
public, including many post fixation rights, including those =20
involving the Internet. During the debate on Monday, the Chair said =20=
that it might be appropriate to give a term of 20 to 50 years to =20
these rights.
The non-paper is a mechanism for the broadcaster to use this right to =20=
compete against the copyright owner for the downstream marketing of =20
copyrighted content, and it imposes a costly additional layer of =20
needed permissions to use works.
The Chairman=92s non-paper also eliminated the protections for the =20
public found in 15/2. The most important operative language for the =20=
defense of competition, cultural diversity and public interest =20
limitations and exceptions (L&E) were eliminated or mentioned only in =20=
the preamble.
The Chair=92s new non-paper provides the narrowest possible set of =20
permissible L&E. Only those that are used for copyright are =20
permitted, and only then if they pass the three-step test. This is =20
quite narrower than the Rome, Berne or the TRIPS, all of which =20
provide for cases where the L&E are not subject to the three-step test.
This is unacceptable, given the importance of access to competition, =20
the risk of anticompetitive practices.
The non-paper should be rejected, or fixed.
The Approach Taken in the 1974 Brussels Convention
The non-paper should have first made an effort to define what a =20
=93signal based=94 treaty would do, and what a =93signal=94 was. It =
should =20
have provided the delegates with an approach that focused on piracy, =20
rather than a new economic right in the programs.
One useful model for such a treaty is the 1974 Brussels =93Convention =20=
on the Distribution of Programme=96Carrying Signals Transmitted by =20
Satellite.=94 This treaty, which is administered by WIPO, provides for =20=
these definitions:
(i) =93signal=94 (ii) =93programme=94 (iii) =93satellite=94 (iv) =
=93emitted =20
signal=94 (v) =93derived signal=94 (vi) =93originating organization=94 =
(vii) =20
=93distributor=94 (viii) =93distribution=94
The Brussels Convention focuses on the measures to prevent use of =20
=93programme-carrying=94 signals by any distributor for which the =20
transmission =93is not intended.=94 The protection does not extend to =20=
legitimate uses of a program from the parties for whom the =20
transmission was intended.
Article 2:
(1) Each Contracting State undertakes to take adequate measures =20
to prevent the distribution on or from its territory of any programme=96=20=
carrying signal by any distributor for whom the signal emitted to or =20
passing through the satellite is not intended. This obligation shall =20
apply where the originating organization is a national of another =20
Contracting State and where the signal distributed is a derived signal.
. . .
(3) The obligation provided for in paragraph (1) shall not apply =20=
to the distribution of derived signals taken from signals which have =20
already been distributed by a distributor for whom the emitted =20
signals were intended.
The Brussels Convention, unlike the Chair=92s non-paper, includes an =20
operative provision on the control of anticompetitive practices =20
(Article 7), as well as one on limitations and exceptions (Article 4) =20=
that is not limited to the 3-step test, including special limitations =20=
and exceptions for uses involving education or science, in developing =20=
countries (Article 4(iii)). These L&E are provided even though the =20
protections of the treaty do not apply when derived signals are =20
distributed by persons for whom the signal was actually intended.
The Brussels Convention may provide a much more useful template for a =20=
treaty than does the Chairman=92s non-paper. It can be modified to =20
incorporate the changes that are needed to make it apply to =20
traditional broadcasting and cablecasting organizations. The =20
Articles from 15/2 regarding limitations and exceptions, defense of =20
competition or cultural diversity could be included, to the degree =20
that such provisions are needed, giving the nature of the obligations =20=
that would be included in a treaty that applied to traditional =20
television and cablecasting.
This could include appropriate restrictions on retransmission on =20
traditional television and cable systems.
Uses of information contained in such on the Internet or other =93non-=20=
traditional=94 platforms should be regulated only by the relevant =20
provisions in copyright laws, or the related rights that apply to =20
creative parties, such as performers or producers of phonographs.
Beneficiaries of a new treaty
The Rome Convention created economic rights for owners of television =20
and radio stations. These were majority owned by nationals in most =20
countries. The new treaty creates rights for cable companies, =20
including both the companies that provide the wired connection to =20
homes as well as the firms that package content for them, through =20
channels. The non-paper defines the beneficiary as the =93the legal =20=
entity that takes the initiative and makes arrangements for the =20
transmission of a broadcast for the reception by the public,=94 and a =20=
=93broadcast=94 as an electronically generated signal =93carrying =
assembled =20
and scheduled programs for the reception by the public.=94 This is =20
designed to provide rights to a handful of large corporate entities, =20
mostly foreign owned, that package =93channels=94 of content for global =20=
distribution. Since television and radio are already beneficiaries =20
under the Rome Convention for their wireless transmissions, this =20
would represent a significant change in the nationality of the =20
beneficiaries. This would be extended further if the right is =20
extended to retransmission on the Internet, where the owner of the =20
=93broadcasters=94 could easily be foreign.
The Relationship Between Limitations And Exceptions And Rights
To the extent that the treaty focuses on piracy of broadcasts, and =20
not the uses by persons who receive the broadcast through legitimate =20
means, the limitations and exceptions can be less comprehensive. =20
However, even here, the 1974 Brussels Convention provides for =20
limitations and exceptions in several key areas, including for short =20
excerpts of reports of current events, quotations compatible with =20
fair practice, and in developing countries the distribution for the =20
purpose of teaching. In addition, the Brussels convention =93shall in =20=
no way be interpreted as limiting the right of any Contracting State =20
to apply its domestic law in order to prevent abuses of monopoly.=94
Because the non-paper goes far beyond the 1974 Brussels Convention, =20
by providing for sweeping exclusive rights for retransmissions and =20
=93deferred transmission by any means to the public of their fixed =20
broadcasts,=94 a much broader set of limitations and exceptions are =20
appropriate, as were included in SCCR/15/2, in Article 2, 3, 4 and =20
17. Failures to include such provisions at this stage of the =20
negotiations would be a grave mistake, given the nature of the =20
proposed rights, and the degree to which broadcasting organizations =20
are fighting for these rights.
National Treatment
KEI strongly objects to alternative K in Article 6 of the non-paper. =20=
This option =93the Berne model,=94 would provide an incentive to =20
implement even more extensive economic rights than are found in the =20
non-paper. One example of this is the recent tit-for-tat expansion =20
of copyright terms from 50 to 70 years, in order for nationals to =20
receive the longer term of protection in foreign markets.
Last Updated ( Tuesday, 19 June 2007 )
----------------------------------------------
James Packard Love
Knowledge Ecology International
mailto:james.love@keionline.org
tel. +1.202.332.2670 / U.S. mobile+1.202.361.3040, Geneva mobile =20
+41.76.413.6584
"If everyone thinks the same: No one thinks." Bill Walton"