Protection Of Broadcasting Organisations On Firmer Ground At WIPOPublished on 18 December 2013 @ 7:18 pm
By Catherine Saez, Intellectual Property Watch
World Intellectual Property Organization member countries worked this week to find a common understanding of the functions of a potential new treaty protecting broadcasting organisations. Over two days, they tackled definitions, beneficiaries and scope of the new instrument with some success. One of the issues related to whether or not the treaty should cover transmission over the internet, and new proposals arose during the week.
The 26th session of the Standing Committee on Copyright and Related-Rights (SCCR) is meeting from 16-20 December. The schedule of work approved by the SCCR was to devote two days to the protection of broadcasting organisations.
This morning, after two days of discussions, SCCR Chair Martin Moscoso, director of the Peru Copyright Office, presented draft conclusions [pdf] suggesting agreement on beneficiaries and scope. These conclusions were discussed in plenary with a number of countries providing comments and suggested changes.
In particular, some countries underlined the fact that the choice of words describing areas of convergence with “it was agreed” did not reflect the fact that a number of issues did not reach consensus and remained open for discussion.
According to the conclusions, it was generally agreed that the beneficiaries of the treaty would be traditional broadcasting organisations and cablecasting organisations.
Some countries, such as the Group of Central European and Baltic States (CEBS), India, and the Group of Latin American and Caribbean Countries (GRULAC), asked that this description be replaced by “broadcasting organisations and cablecasting organisations in the traditional sense” reflecting the wording of the 2007 General Assembly mandate.
Also generally accepted, according to the conclusions, is that broadcasting and cablecasting are included in the scope of protection, without prejudice to clarification of the inclusion of cablecasting organisations in the definition of broadcasting organisations in national laws.
The draft conclusions also note that member states discussed the inclusion in the scope of protection of transmissions over the internet, which would be limited to transmissions originating from traditional broadcasters and cablecasters.
The conclusions also state that member states agreed to further discuss other possible inclusions in the scope of protection of transmissions over the internet, when originating from traditional broadcasters. These other inclusions would be: original broadcasts, on-demand transmission of broadcasts, or deferred and unchanged transmissions of broadcasts.
On this matter, India remarked that the draft conclusions did not reflect the discussions that arose in the two first days of the SCCR on the mandate of the 2007 General Assembly. India said several member states shared this concern. The SCCR mandate is to work towards developing an international treaty to update the protection of broadcasting and cablecasting organisations in the traditional sense.
India finds that extending the protection to internet goes beyond the 2007 mandate, while other countries think it is a matter of interpretation and that technology developments in the last seven years should be taken into account. Russia and Kenya, for example, illustrated this point. The United States said it considers that the current discussions are consistent with the existing mandate.
India said earlier in the week that that if the mandate was to be reinterpreted it should be done by the General Assembly so that another treaty could be negotiated meeting the demands of the time.
Number of Textual Proposals Submitted
On the first day of the session, delegates retreated to informal consultations at the end of the afternoon to discuss areas of convergence and areas of divergence on broad issues such as the beneficiaries of the potential treaty and the scope of its application.
The informal discussions were based on a non-paper [pdf] proposed by Japan drafted as a chart and presenting the main issues of the broadcasting treaty.
Over the first two days of the SCCR session, several proposals were submitted, such as a proposal from India [pdf] on Article 9 (Protection for Broadcasting Organizations), the transcript [pdf] of a United States intervention on Article 9, a further language for discussion [pdf] proposed by the US also on Article 9, and a set of definitions [pdf] from India for Article 5 (Definitions).
The draft conclusions presented this morning propose to include the proposals as an annex to the working document [pdf] on which member states are currently negotiating. It was agreed at the end of the second day that some definite time would be carved out from the third day of the SCCR to discuss the draft conclusions, which drew concerns from developing countries.
This raised concerns from several delegations. The African Group said that members of the group needed more time to consider proposals and receive instructions from capitals and preferred for those proposals to appear in the report of the session. The US delegation said it could be flexible and its proposals be kept in an annex with the understanding that in the next meeting they would be integrated into the main text. India said it favoured the inclusion of its textual proposal into the text.
GRULAC also said that proposals that had been submitted during the two days be mentioned in the draft conclusions such as the Indian, Japan and US proposals.
South Africa, along with other delegations such as the US and the European Union, suggested that the draft conclusions include reference to the articles discussed during the two previous days. Member states discussed Article 5 (Definition), Article 6 (Scope of Application), Article 7 (Beneficiaries of Protection), and Article 9 (Protection for Broadcasting Organizations).
The discussion on the protection of broadcasting is not a North-South issue, and countries within regional groups often have divergent opinions on the matter.
Moscoso said comments by members states were duly noted and would be considered in a further draft of the conclusions.
Discussion on Articles
Article 9 (Protection for Broadcasting Organisations), as it stands in the working document [pdf] presents two alternatives. Article 9 details rights that broadcasting organisations would have to authorise use of their signals.
The US and India both provided language for this article. The US approach provides a single right and focus on the prevention of the piracy of signals. It would avoid the protection of the content carried by the signal, and would have no post-fixation rights, according to their intervention. It would also include the prevention of signal piracy over the internet and include pre-broadcast signals.
India proposed a third alternative to Article 9. In this alternative, the country suggests that broadcasting organisations “shall enjoy the right to prohibit” a number of unauthorised uses of their signals. The proposal also includes a paragraph stating that this right “shall be subject to the extent of rights acquired or owned by the broadcasting organisation from the owners of copyrights and related rights.”
Article 5 on Definition also gave way to substantial discussions. Japan said that Alternative B to Article 5 is based on a previous proposal by Japan and proposed to define broadcasting instead of defining broadcasting organisations in the first paragraph, as the concept of broadcasting is shared by all member states. Furthermore, Alternative B defines requirements to be met by broadcasting organisations, the delegate said.
The India proposal for different language for Alternative A of Article 5 includes a definition of broadcast which excludes the transmission of electronically generated signals over computer networks.
After comments were received from different countries on the draft conclusions on broadcasting, the chair opened the second topic of this session of the SCCR: the issue of exceptions and limitations to copyright for libraries and archive, for which member states were expected to start work on a working document [pdf] this afternoon.
Catherine Saez may be reached at firstname.lastname@example.org.