WIPO Delegates Dig Into Core Issues Of Draft Broadcasting Treaty

The first half of this week’s World Intellectual Property Organization copyright committee meeting was devoted to a potential treaty to protect broadcasters’ rights. Delegations struggled to find common ground on core questions such as the scope of the protection to be granted and specific rights. This was partly attributed to the highly technical nature of the subject and informal consultations were said to have achieved more clarity on issues.

The seventh session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) is taking place from 28 April to 2 May.

On the second day of the meeting, WIPO Director General Francis Gurry, who could not attend the opening of the session, underlined recent successes of the SCCR, including the Beijing Treaty on Audiovisual Performances, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. He noted that both of those treaties await ratification.

“We very much would like to see some action in this regard in the coming months and years,” he said.

Gurry also said that WIPO member states have expressed concern about the number of meetings held by WIPO, which he estimated at over 250 days of meetings per year, and stressed the need for productivity. The world is increasingly complex, he said, and so are the issues. The proposed broadcasting treaty “is in many respect emblematic [of that complexity] with rapid technological developments,” he added.

“We have to be able to show that at the end of the meeting we are in a better position than we were at the start of the meeting,” he said, commenting on the little time left according to the timetable set for the treaty. “We have of course, here present, the copyright elite of the world, so if anybody can do it, you can do it,” he said.

Core Questions Still Under Discussion

Main issues remain to be agreed in the potential treaty, in particular, the scope of the protection and the rights to be awarded to broadcasters by the international instrument. Some member states are worried that some rights that would be granted to broadcasters, in particular for retransmission or on-demand programmes, would not only add another layer of rights over the copyright covering the content of the signal, but might actually run counter to existing copyright owned by content creators.

During the two first days of the meeting, delegates worked from a working document [pdf], which is a draft treaty text, and a new document [pdf] put forward by some countries of the Group of Caucasian, Central Asian and Eastern European Countries (CACEEC) – Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan.

The CCAEE document offers a complete alternative text of the draft treaty, taking a strong position on the protection of broadcasters. On 29 April, the Belarus delegate said that a broad scope of protection should be enjoyed by broadcasting organisations. This protection should cover the signal once fixed, the distribution and the transmission of that fixation. He also said that national legislations should determine the issue of the exhaustion of rights and the extent to which the rights can be continued.

The plenary session was dismissed the afternoon of the second day so that regional coordinators could convene in a smaller informal setting with SCCR Chair Martin Moscoso, director of the Peru Copyright Office, to try to establish a matrix laying out the different issues. The SCCR is still struggling to define what the protection of broadcasters should exactly consist of, and to which broadcasting activities the protection should apply.

Some delegations insist that only the signal should be protected, and so once the signal has been delivered, the copyright covering the content would apply, with some allowance for pre-broadcast signal and near-simultaneous retransmission.

Japan submitted a document during an inter-sessional meeting on the protection of broadcasting organisations held from 10-12 April 2013 (IPW, WIPO, 16 April 2013) which wasa table presenting the main issues of the broadcasting treaty, and was used during this session as a reference. The document lists the different means of transmissionover the internet and the series of rights that could be granted to broadcasters.

Today, during an informal meeting with Moscoso along with regional coordinators plus six members of their group, two documents (prepared by the WIPO secretariat at the request of the chair) were discussed.

The first of those documents is a table including different broadcasting systems (traditional broadcast and cablecasting, and different ways of transmission over the internet, such as on-demand transmission or webcasting) and three choices to be taken by member states: Mandatory protection, opt-in protection or exclusion from the treaty, for every one of the above categories. According to the Chair, these choices correspond to Article 6 (Scope of application of the proposed treaty.

The second document is another table listing broadcasting activities that might be covered by the treaty, such as simultaneous retransmission of the broadcast signal to the public over any medium, pre-broadcast signals, and transmission of the broadcast signal to the public from a fixation and over any medium (not limited in time), including the making available right. This list correspond to Article 9 (Protection for broadcasting organisations) of the draft treaty text, according to Moscoso.

Both Article 6 and 9 were heavily discussed during the two first days of this SCCR session without breaching main differences between positions.

India also put forward an informal document titled “Clarifications on issues in the proposed WIPO Treaty on Protection of Broadcasting Organizations,” the author of the paper, G.R. Raghavender, the Indian registrar of copyrights, told Intellectual Property Watch. He said the document was submitted during the informal discussions today in order to clarify the description of the traditional platform of broadcasting organisations and the platforms relating to new digital technologies. “There is a lot of confusion,” he said.

India also proposed that at the next SCCR meeting in July, an informal meeting be convened with technical experts to clarify the technical issues of broadcasting to the member states.

This proposal was supported by a number of countries such as the United States, Brazil, Canada, and El Salvador.

Many delegations that participated in the informal session today said the meeting was very useful in clarifying issues, however, Brazil said many aspects have still to be clarified, echoed by India. The European Union also said more discussions were needed on some points. The United States said they need to engage in further consultations at home “now that there is a clearer picture of what is on the table.”

The US noted that there is a question about the extent to which piracy may take place from different types of internet transmissions “so that could be a question more related to enforcement than the object of protection itself.”

Simultaneous Transmission or Retransmission

One of the core issues of the discussion is whether protection should be granted to broadcasters in the case of transmission of the broadcast signal to the public after the signal has been fixated. A number of countries insist that only the signal should be protected and that protection should end when the signal is delivered.

Some countries said that technology is a moving target and new technology could not be ignored in the treaty. Broadcasters confirmed that most of them offered on-demand services, some through internet television. Some, such as the European Union, said it was important to look for protection that is adequate for how broadcasting organisations and cablecasting organisations are currently operating.

The Indian document circulated today details three types of traditional broadcasting: terrestrial, satellite, and cable television. Activities carried out for this type of broadcasting include digitisation of the signal, up-linking of the signal, and activities by cable operators to decode and retransmit to TV receivers in homes.

The document further lists the new digital platforms, such as online broadband live streaming or webcasting, internet protocol television, on-demand or catch-up TV broadcasting, simulcasting or near-simulcasting broadcasting, which refers to a broadcast that is simultaenously done through different media at the same time. That might not include internet. Finally, there is deferred or delayed broadcasting.

Delegations have to find consensus on which of those activities should be covered by the treaty, to what extent, and what should be left to national legislation.

The time devoted to broadcasting in this session of the SCCR expired today at noon and the committee moved on to discussing exceptions and limitations for libraries and archives.