[Upd-discuss] 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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