TWN Info Service on Intellectual Property Issues (May14/01)
2 May 2014
Third World Network

WIPO: Work resumes on treaty to protect broadcasting organisations
Published in SUNS #7794 dated 30 April 2014

Geneva, 29 Apr (Alexandra Bhattacharya) -- Member States of the World Intellectual Property Organisation (WIPO) resumed textual discussions on a treaty to protect the rights of broadcasting organisations.

The 27th session of the Standing Committee on Copyright and Related Rights (SCCR) is taking place in Geneva from 28 April to 2 May. This potential treaty has been on the agenda of the WIPO committee since 1998.

[The 26th session of the SCCR, after intensive discussion, decided that during the current session two and one-half days would be devoted to the Protection of Broadcasting Organisations; and two days for the discussion on Limitations and Exceptions for libraries and archives, for educational and research institutions and for persons with other disabilities.]

Textual discussion was based on the Working Document for a Treaty on the Protection of Broadcasting Organisations (SCCR/27/2 REV). The document is available here: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf

According to WIPO, "International rules to protect television broadcasts from piracy have not been updated since the 1961 Rome treaty (on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations), drafted at a time when cable was in its infancy and the Internet not even invented."

In 2007, WIPO's General Assembly agreed to pursue a "signal-based approach" to drafting a new treaty, to ensure that provisions on signal theft in themselves did not give broadcasters additional rights over program content. But this still left many of the underlying differences of view in place.

The key issues on the table include the scope of application of the potential treaty particularly with respect to whether it should be confined to traditional broadcasting (including cablecasting) or whether it should include transmission over the Internet. Another important issue relates to the scope of rights or protection and particularly whether post-fixation rights should be included.

The conclusions reached at the end of the discussions on the broadcasting treaty revealed that there was agreement that broadcasting and cablecasting organisations in the traditional sense would be the beneficiaries of the protection provided by the proposed treaty, subject to clarification of the inclusion of cablecasting organisations in the definition of broadcasting organisations in nationals laws.

Similarly, it was also understood that broadcasting and cablecasting would be included in the scope of protection on a signal-based approach, subject to the clarification of the inclusion of cablecasting organisations in the definition of broadcasting organisations in national laws and of the effect of that inclusion on the scope of application.

However, at the heart of the remaining issues was whether the scope of protection should extend to transmissions over the internet and to what extent.

The issue of transmission over the internet is linked to whether the work undertaken was within the mandate of the 2007 General Assembly (GA) Decision which had confirmed the 2006 GA decision which stipulated that "The scope of the Treaty will be confined to the protection of broadcasting and cablecasting organisations in the traditional sense," but also asked that the convening of a diplomatic conference only be considered "after agreement on objectives, specific scope and object of protection has been achieved."

At the start of the session, Brazil, on behalf of the Development Agenda Group (DAG), proposed the addition of an agenda item "The Contribution of the SCCR to the implementation of the respective DA (Development Agenda) Recommendations", which was consistent with the "best practice of the Committee".

Japan, on behalf of Group B (developed countries), stated that there would be another SCCR session in June prior to the convening of the WIPO General Assembly in September, and in this context queried if the DAG wanted to propose this agenda item for that session.

Brazil said that it would take the issue back to the Group (DAG) and inform the SCCR of its decision.

OPENING STATEMENTS

Kenya, on behalf of the African Group, stated that with respect to the agenda item on the protection of broadcasting organisations, the discussion should continue on the basis of the working document (SCCR/27/2 Rev). It noted that various proposals and alternatives regarding the definition of signal were the critical element in the proposed Treaty.

With respect to the exceptions and limitations as they related to libraries and archives, the African Group noted that this discussion was critical in achieving a balance in the international copyright system. Libraries and archives performed a critical function in providing information which was essential for the advancement of knowledge and culture in society, it added.

The African Group also noted that a legally binding instrument on this issue was therefore necessary as it provided an opportunity for libraries and archives to carry out their work in an increasingly globalised and digital environment. In this regard, the Group requested that the textual suggestions in the working document (SCCR/27/REF/SCCR/26/3) be separated as this would accelerate discussions in order for the SCCR28 to make a recommendation to the General Assembly.

On the agenda item in relation to limitations and exceptions for education and research institutions and persons with other disabilities, the African Group noted that limitations and exceptions were important for all Member States, as education and research continued to play a key role in all societies and in meeting many problems and challenges.

Belarus, on behalf of the regional group of Central Asian caucuses and certain Eastern European countries, expressed support for the work currently being undertaken in the SCCR, noting that "This work took account of the real interest that exists in specific areas and we think this is of great value to all countries not in our region but indeed throughout the world".

It noted that for the Group, the issue of protection for broadcasting organisations was of high priority and expressed concern about the rate of progress thus far.

Japan, on behalf of Group B, welcomed the efforts by Member States during the last session of the SCCR to advance the mutual understanding with respect of the protection of broadcasting organisations. It stated that it expected that the increased focused would be on the text-based discussion towards developing an international Treaty for the protection of broadcasting and cablecasting organisations in the traditional sense, "maintaining the momentum for consensus we have created so far".

Regarding the exceptions and limitations for libraries and archives and education and research institutions, it was "ready to exchange our experiences" and work within "the existing framework of international treaties and Conventions which already enable these institutions to fulfill their roles both in the analog and digital world."

Uruguay, on behalf of GRULAC (Group of Latin American and Caribbean countries), reiterated that according to the work program adopted by the GA in 2012, the SCCR should continue its work on international instruments for limitations and exceptions.

The Czech Republic, on behalf of CEBS (Group of Central Europe and Baltic States), underlined that the broadcast treaty was the main priority for the Group and that the issue had to be discussed in the context of the technological developments of the 21st century. It also called on the SCCR to discuss issues related to licensing in the digital era.

CEBS stated that the discussion on a potential broadcasting treaty should take into account "today's and tomorrow's business models" and "online transmission must be reflected." It stated that "we should avoid a treaty which is outdated upon entry into force".

The Republic of Korea, on behalf of the Asia-Pacific Group, reaffirmed its commitment to a signal-based approach in the development of a broadcasting treaty as per the 2007 WIPO GA mandate. It called for "meaningful technical consultations" to settle outstanding issues.

It also called for effective solutions for the development of an inclusive framework for libraries and archives, research and education institutions and for persons with other disabilities.

The European Union said it was ready to explore various "possible compromise options" with respect to the protection of broadcasting organisations. It stated that in order to achieve a treaty, broad consensus needs to be built as to the problems that needed addressing and the scope of protection.

With respect to the issue of exceptions and limitations, the EU stated that the current international copyright framework was adequate both for the analogue and digital age. Hence, it reiterated its view that there was no need for further rule-making at the international level. It was of the opinion that the exchange of best practices and experiences was the best way forward.

The EU informed the Committee that it would be signing the Marrakech Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired on 30 April.

(India is also expected to sign the Marrakech Treaty during SCCR/27.)

UK PROPOSAL: PRESENTATION BY THE BBC ON INTERACTIVE TELEVISION

The SCCR then moved to a substantive discussion on the agenda item on the Protection of Broadcasting Organisations.

For the current SCCR, the UK tabled a proposal (SCCR/27/3) "to shed light on a number of different technologies already being used by broadcasters from around the world".

It proposed that the BBC, a public service broadcaster (which is independent of the UK government), be invited to attend the 27th SCCR to give a presentation to the plenary session on these services which would "enable delegates to learn more about the types of advanced technology being used by broadcasters around the globe."

In this context, the SCCR was presented with an overview by Mr. Neil Memmott, BBC Head of TV and Mobile Platforms, on the BBC's red button, red button connect and iPlayer features, which allow advanced features such as internet-delivered services and on-demand video services.

In response to a question from El Salvador, Mr. Memmott said that the BBC's content is protected "loosely" and as it is a free-to-air broadcaster in the UK. However, its internet content was protected from access overseas. He added that the BBC made its own content and also worked with other third parties.

A number of delegations noted that although the presentation was useful from a technical perspective, a number of legal questions posed remained unanswered.

SCOPE OF APPLICATION OF THE PROPOSED TREATY

The presentation by the BBC provided impetus for the SCCR to deal with the key issue of the Scope of Application of the proposed treaty (as found in the Working Document SCCR/27/2 Rev.), where divergent views remain. Member States expressed their national positions with no evident regional positions.

(The conclusions of the 26th SCCR showed that the key remaining issue with respect to scope related to the inclusion, in the scope of application, of transmissions over the Internet and if this protection should be mandatory or optional.)

There was also a discussion as to which categories of transmission over the internet should be included: (i) simultaneous and unchanged transmission of broadcasting program (simulcasting): (ii) transmission of original program (webcasting), (iii) on-demand transmission of broadcasting program or original program: (iv) deferred and unchanged transmission of broadcasting program.

The discussion during the first day of the 27th SCCR27 was particularly focused on differentiating and further elucidating the different concepts related to transmissions over the internet.

A number of delegations (India, Brazil) emphasised that any protection afforded to broadcasting organisations should not impact the intellectual property rights of content holders. Additionally, Ecuador also noted the need to take into account the effect on the end users from the creation of the rights of broadcasting organisations.

South Africa noted that it was not always easy to differentiate between the type of signal being pirated and in this context it was necessary to pursue a "technology neutral approach" especially since "the issue of technology was a moving target".

The European Union, in a detailed intervention, stated that the focus on "traditional" broadcasting and cable- casting was a limitation and there was a need to look for protection which responded to how broadcasters and cable-casters operated in reality. It added that protection for simultaneous and unchanged transmission should be the minimum.

It added that there is need to further look into providing protection for on-demand transmission which is "becoming more and more popular" and to realise that there were different on-demand transmissions, especially with regard to the link to the traditional broadcast or the newer broadcast.

The United States said there was a need to understand the facts of broadcasting to further the discussion. In this context, it was important to reach consensus with regard to the difference of demand transmission of broadcasting program or original program from deferred and unchanged transmission of broadcasting program.

Argentina stated that the scope of protection should include broadcasting transmissions and media made through any medium process by broadcasting organisations traditionally recognised; in other words, radio, companies, open TV companies, cable companies, and excluding the webcasting entities.

Brazil posed an important question to the committee, querying why there was still a need for additional protection for broadcasts if the content was already protected by copyright. It questioned: "How would the protection granted to a transmission over the Internet when not simultaneous and unchanged differ from the protection granted by copyright to the content itself?" It added that this question was at the centre of the debate.

India also questioned whether the discussion was regarding the scope of signal-based broadcast in the traditional sense or if it had exceeded the mandate given by the WIPO General Assembly in 2007.

The United States said that it agreed that there was a need to be working within the scope of the General Assembly's mandate; however, it was a question of interpreting the mandate and there was a need to achieve greater clarification on specific concepts.

The EU stated that the discussion was regarding the right of broadcasting organisations in protecting their own signals and was not meant to broaden their rights with respect to content creators. It added that even if broadcasting organisations can only broadcast by traditional means, they should be able to stop somebody intercepting this signal and showing it over the Internet.

The Chair urged the Committee to think about a matrix of different platforms with respect to transmission over the internet in order to determine consensus areas.

The SCCR will continue discussion on the protection of broadcasting organisations for the next day and half. It is expected that during the afternoon of the third day (30 April), the SCCR will consider the issue of limitations and exceptions.