South Africa Says WIPO Broadcasting Treaty Would Address Piracy As African Production Grows

As the broadcasting sector is growing in developing countries, concern over piracy of the signal of their broadcasts is rising, according to delegates from South Africa. Delegates attending last week’s World Intellectual Property Organisation copyright committee meeting sat down with Intellectual Property Watch and argued the importance of a potential WIPO treaty protecting broadcasting organisations’ rights.

Because the world is now in the digital age, it has become easy to grab a signal on any platform and transmit it to other parts of the world, said Sithembiso Jake Manzini, director, e-content policy development, Department of Communications. In that case, domestic laws are not applicable and going through litigation takes a long time, he said.

According to Aynon Doyle, technical expert for the South Africa delegation, and employed by a South African broadcasting organisation, piracy is addressed by national copyright law. South Africa signed the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. The reason to get involved in the treaty is to get equal national treatment, he said.

Piracy is no longer just a local problem, said Doyle, as a broadcast might be lifted in South Africa and end up in Shanghai.

“Someone might start a business with six or seven of your channels, which they have not paid anything for, with content for which they don’t have the rights,” he said.

Piracy is not just a problem for paid TV operators, but also a growing problem for developing country public community broadcasters, he said. Most of them have the highest local content requirement, and there is large expenditure on local content out of public money.

There has to be a return on that investment, he argued. Part of that return is the local population being exposed to the content, but that content should be able to be sold on. Piracy undermines national policy objectives to try to grow the industry, he said.

Doyle said that a few years ago, the South African Broadcasting Corporation (SABC), which broadcasts on satellite with an encrypted transmission so it is geographically locked to South Africa, faced a situation where a decoder which circumvented the encryption was sold in Botswana. So SABC broadcasts were received in Botswana to the detriment of the local public community broadcasters who found advertisers did not wish to advertise in Botswana since they already advertised in South Africa and channels were available in Botswana.

“The more developing countries are getting into the production sector, the more you want to protect that content from piracy, otherwise all your objectives are being undermined continuously,” he said.

Rising Importance of a Treaty, with Exceptions

South Africa has copyright and neighbouring rights and has protection for broadcasters, but “we are very aware that some other member countries don’t [have the same kind of legislation] and don’t want to be signatory to Rome,” he said. So the treaty should be very narrowly focused so as to appeal to as broad a base of WIPO members as possible, and be based on the 2007 signal-based approach, he argued.

Developing countries have been saying that the treaty currently being discussed should follow the mandate of the SCCR decided in 2007, which indicates that the protection should cover signals transmitted by traditional broadcasting organisations. Developed countries usually considered that the protection should also cover transmission over the internet.

Last week, a near consensus was reached on the fact that the protection of the signal should cover all platforms as long as it is only traditionally originated and not stored for retransmission (IPW, WIPO, 3 July 2015).

Broadcasters are not too concerned with small snippets that appear on YouTube but rather about somebody taking the entire live stream and rebroadcasting simultaneously or nearly simultaneously outside their jurisdiction and making revenue out of it without having to bear any of the costs.

The loss for the public broadcaster is the inability to sell the content in the country where the pirated signal is being broadcast because there is no incentive for anybody to buy their content, he said.

Much of the discussion at the SCCR is focused on the scope of the treaty and the beneficiaries, he said. However, a neglected aspect relates to elements such as technological protection measures and digital rights management.

With a treaty, a prohibition against circumvention of technological protection measures (technology that forces use of copyright) could be enforced, he said.

For community broadcasters, all they would have to do is to draw the attention to the offense, he said. For bigger broadcasters, it would mean that contrary to copyright law where they need to find the rights holders, they would only have to show that their signal has been intercepted. They would no longer have to go through litigation. A treaty should simplify the prosecution against piracy, he said.

“All you have to do is to draw attention to the government that it is taking place, because that is a criminal offense.”

The scope of the treaty should be limited to the interception of the signal for commercial gain, “and there should be limitations and exceptions for universities and archives, the usual,” he said.

From the South African perspective, “this is has been going on for quite some time and it would be nice to see within the next two years that it would be finalised, because for developing countries harm starts increasing now,” he said. “So it is going to be more and more pertinent over the next few years as we grow more as content producers.”

It would be good for each African country to start growing their production sectors and then to sell that content to other African countries, he said, adding that Africa has strong stories to tell.