Broadcasting Industry Makes Case For WIPO Treaty Revival

To kick off the World Intellectual Property Organization copyright committee meeting this week, representatives primarily from the broadcasting industry gave their views on key developments in the field, and what that means for intellectual property protection. An overwhelming message was the revival of a strong call for a global policy solution to address cross-border challenges in the industry, though a few speakers included attention to the public interest.

The Standing Committee on Copyright and Related Rights (SCCR) is meeting from 25-29 May.

WIPO Director General Francis Gurry stressed at the outset of the 25 May information session that it was intended to be informational only and not a negotiation on a former proposed treaty strengthening IP rights for broadcasters that collapsed in the negotiation process in 2007 (IPW, WIPO, 22 June 2007).

However, a large number of the speakers called for action to protect the rights of broadcasters.

“One of the most important consequences of us not making a decision in this area is serious disparity in the protection enjoyed by broadcasting bodies around the world,” said Luis Alejandro Bustos, corporate legal general director at Televisa Group, Mexico. This “leaves a void for those who don’t invest in the business to get undue advantages,” he added, saying that “thankfully” positions on the broadcasting treaty were not irreconcilable.

But the intellectual property system “has to serve both developing and developed country needs,” said Simone Lahorgue Nunes of Lahorgue Advogados in Rio de Janeiro. This can be complex. Copyright protection is not enough to fight broadcast piracy, she said, but at the same time flexibility might be desirable to allow for library archiving, private copies, protections for visually impaired people, transformative uses of protected works, or freedom of speech.

What is unique about the broadcast media, said Avindra Mohan, executive vice president of Zee Network, an Indian entertainment company, is its universal effect compared with print media which can affect only the literate.

This has made broadcasts “one of the most important tools in disseminating information and education among the masses,” he added.

“Broadcasting is a driving force behind content production,” said Bustos, adding that the industry employs millions of people, and that some “40 percent are highly specialised, with university degrees.”

It even drives democracy through political campaign messages, he added. Bustos said the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations is far outdated given rapid technological change. “It beggars belief that that is the treaty that still regulates our work today,” he said.

Mohan decried the losses to the industry due to piracy, which he said were US$1.75 billion in 2008. The figures came from the Cable & Satellite Broadcasting Association of Asia, an industry-based advocacy group.

“Cable broadcasting may not be an essential commodity in the sense that it is not an item of food,” he added, but its “but its importance cannot be underestimated.” To illustrate this, he showed a photograph of a European family watching television comfortably in their living room and a photograph of a ‘typical Indian family’ watching television despite a flooded living room.

Such piracy is “becoming more and more easy,” as is the redistribution of pirated content, said Lieven Vermaele, director of the technical department of the European Broadcasting Union, an association of broadcasting companies.

Innovation has an important impact on business models, Vermaele added. A lot of piracy is done via peer-to-peer networking, in which a large number of users share just a piece of a file, he said. But this technology could be used legally to assist with live streaming, because it lowers both network and distribution costs.

Viewers “don’t buy brands or technology,” said Tharaka Mohotti, director of engineering at the MTV Channel Limited in Sri Lanka, a private television network. “They buy content,” he added. “Technology is just a gateway, a means to get at the content.” As such “piracy is a plague of the digital era” and the largest threat to the survival of creative enterprises.

Why pirate a sports broadcast? asked David Price, head of Piracy Intelligence at counter-piracy internet consulting firm Envisional in Cambridge, UK.

People pirate because they do not want to pay subscription channel prices, or because they want to watch sports matches not normally broadcast, Price said. They are prepared to do so if they can get real-time (or very close to real-time) broadcasts of sports matches. Such matches are available from several sites, making combating pirates a bit like a game of “whack-a-mole,” he said: stop one service and people will gravitate towards another.

Intellectual Property Watch has previously covered issues in sports broadcasting here: (IPW, Enforcement, 12 February 2009).

Governance, Public Interest

Sisule Musungu of IQsensato said that any IP-related work in this area needs be done according to the conceptual framework laid out in the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement.

TRIPS Article 7 reads: “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”

Thus, Musungu said, a balance must be struck between rights and public interest. Broadcasting has a role in education, in cultural diversity, as a driver of economic growth, and as an instrument of social cohesion. There is a public interest in the use of broadcast spectrums and in affordable or even universal access to broadcasting, he added.

But one “shouldn’t presume to know what public interest means, as it means different things in different societies,” he added.

“A lot of the assumptions around copyright don’t apply to us around the world,” said Alison Gillwald, associate director of think tank the EDGE Institute in Johannesburg, South Africa.

For example, often conversations around broadcasting assume democracy and a regular change of government, as well as freedom of expression. In countries where these conditions do not exist, copyright and related rights implementation does not necessarily follow.

The consumer base needed to carry traditional, expensive, high-value broadcasting “is simply not feasible in many countries” she said. In such places, so-called old media – especially radio – has particular value.

Attention must be paid to what technology is available in a developing country context, said Gillwald. More people have access to telephones than televisions, and few phones are enabled to access broadcasts – and even when they are, the cost is often so high as to be prohibitive. And “there are no computers in Africa,” she said, as less than 5 percent have home internet connectivity in South Africa, which is one of the more connected countries on the continent.

Also speaking at the event were Godfrey McFall, a senior associate at Oliver & Ohlbaum Associates in London, who gave a business perspective on broadcasting rights, and Fernand Alberto, a broadcast media consultant from Manila, Philippines, who presented several case studies of broadcast infringement.

Presentations from the event are available here: Alberto, McFall, Mohan, Mohotty, Musungu, and Vermaele [ppt].