Potential Treaty To Protect Broadcasters’ IP Rights: Technicalities Explained

Negotiations for a treaty providing protections for broadcasting organisations have been long and difficult at the World Intellectual Property Organization. In the corridors of WIPO, questions to a number of delegates are often answered with a puzzled look and what seems to be little understanding of technical issues. Intellectual Property Watch recently tried to untangle some of the technicalities of the discussions.

The work of the WIPO copyright committee on the treaty is sometimes difficult to understand for delegates, in particular when missions do not have a copyright expert to send to the negotiations.

During the last session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), delegates worked from a document (Revised Consolidated Text on Definitions, Object of Protection, and Rights to be Granted [pdf]), prepared by the SCCR chair, Martin Moscoso of Peru (IPW, WIPO, 21 November 2016), which focused on three issues: definitions, object of protection, and rights to be granted.

Discussions are held in a closed setting, with no press access and few reporting opportunities.

The issue of the protection of broadcasters has been on the agenda of the SCCR since its first meeting [pdf] in 1998.

Definitions

For the neophyte, the negotiating text is a nightmare. Beyond the vocabulary used, it is also heavily bracketed, making the understanding difficult.

For example, what is a “programme-carrying signal”? That should be simple enough, and according to an informed source, there is support for the definition in the current text, which states that it “means an electronically generated carrier carrying a programme as originally transmitted and in any subsequent technical format.”

Programme is defined as “live or recorded material consisting of images, sounds or both, or representations thereof.”

So far so good. However, defining broadcasting proves more complicated and there are currently two alternatives on the table. The first one (Alternative A) refers to a more “traditional” approach, providing two separate definitions of broadcasting and cablecasting.

According to an informed source, there are two categories of cablecasters: cablecasting organisations which transmit through cable (wired) networks, programmes or content selected or produced by themselves (cable-originated transmission); and others which transmit simultaneously programmes which are being broadcast over the air by other organisations. The latter can make deferred retransmissions of programmes which previously have been broadcast.

Alternative A thus has two parts, one for broadcasting (c)(1), inspired by the most recent definition of broadcasting contained in the Beijing Treaty on Audiovisual Performances, as well as the 1996 WIPO Performances and Phonograms Treaty (WPPT) and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, according to the source.

Alternative A (c)(1) says that broadcasting means the transmission of a programme-carrying signal by wireless means for reception by the public, such as transmission by satellite, of encrypted signals where the means for decrypting are provided to the public by the broadcasting organisation or with its consent.

A bracketed sentence (indicating no agreement) states that transmissions over computer networks shall not constitute broadcasting.

Alternative A (c)(2) defines cablecasting. The issue of cablecasting has been a difficult part in the negotiations as in some national legislation. Cable-originated transmissions of programme-carrying signals are protected in the same way as broadcasting, and the cablecaster enjoys the same right as the one granted to broadcasters. However, some national legislations do not recognise cablecasting as part of broadcasting.

As currently proposed in the text, cablecasters who merely transmit programmes without any changes would not be covered by the treaty, the source said.

Now comes Alternative B, inspired by a proposal by South Africa, which states that broadcasting means “the transmission either by wireless means or any other means for reception by the public of a programme-carrying signal,” such as transmission by satellite, and transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organisation or with its consent. The alternative however notes that transmissions over computer networks shall not constitute broadcasting.

Beneficiaries

There is no definition of the term “broadcasting organisations” in the Rome Convention, and there is not really an agreement on the current formulation. It states that “broadcasting organisation means the legal entity that takes the initiative and has the editorial responsibility for broadcasting, including assembling and scheduling the programming carried on the signal.”

The “legal and editorial responsibility” seems to be one of the most relevant factors of the definition, the source said.

Retransmission

For the term retransmission, the text currently includes two alternatives. The first one (A) provides for a broad definition, and states that transmission refers to reception by the public by any means of a programme-carrying signal from any other entity than the original broadcasting organisation. Such retransmission can be simultaneous, or near-simultaneous in cases where simultaneous transmission is slightly deferred for technical/distance reasons, or deferred.

Alternative B, however, provides for a narrower approach, and does not include deferred transmissions, which refers to a rebroadcasting at a later time than the original broadcast.

This is a core issue of the discussions, according to several sources. Some developing countries have been insisting on a “signal-based approach” of the treaty, and it seems there is broad consensus around that concept.

There is also general consensus that the treaty should protect the broadcast-programme carrying signal, in order to prevent piracy.

However, one approach has been to consider that the main focus should be on the protection of the “live signal”, and that would not concern deferred transmissions. For some countries, protection should in some cases extend to “post-fixation” such as deferred transmission. This would address the issue of unauthorised use of broadcast signals via the internet on a deferred basis, the source explained.

What Should Be Protected?

The current text has three paragraphs. One (1) says that the protection extends only to programme-carrying signals transmitted by a broadcasting organisation, but not to programmes themselves. The phrasing of this paragraph is meant to clarify that the protection does not cover the signal’s content, which may or may not be protected by copyright and/or related rights.

Paragraph 2 states that the treaty shall not protect mere signal retransmissions.

Paragraph 3 has two alternatives. The first (A) provides for simultaneous and near-simultaneous transmissions by any means. B includes deferred transmissions and the “making available right” which would allow broadcasters to control on-demand transmissions, but also offers a possible limitation to the protection.

What Rights Should Be Granted?

Divisions in perspective are reflected in two paragraphs, each of which has two alternatives. Paragraph 1 (Alt1) offers a “traditional” model of protection under exclusive rights, according to the source. It gives the possibility to broadcasters to authorise or prohibit the retransmission of their programme-carrying signal to the public, and also covers the making-available to the public of their broadcasts including in an interactive way.

Alternative B of the first paragraph only provides broadcasters with a right to prohibit the retransmission of their programme-carrying signal and the making available of their broadcast. That is considered as a “single right” approach.

Paragraph 2 (Alt A) refers to the right of broadcasters to prohibit the unauthorised retransmission of their pre-broadcast signal. Alt B says that broadcasting organisations shall enjoy adequate and effective protection for their pre-broadcast signals.

Landscape Evolving, Next Session

According to Carole Croella, senior counsellor, Copyright Law Division, Copyright and Creative Industries Sector, at the next session of the SCCR, from 1-5 May, delegates are likely to also engage in more in-depth discussions of “other issues”, of a potential treaty text, those include beneficiaries, limitations and exceptions, term of protection, technical protection measures, and rights management information.

Since the beginning of the discussions at the SCCR, the landscape of broadcasting has evolved significantly to become more complex and larger, in particular with a growing number of broadcasting channels and other kinds of programme transmitting entities, she told Intellectual Property Watch.

This evolution is especially significant for developing countries where broadcasting represents a commercial and cultural opportunity for creation and distribution of local content. Piracy has become easier and more sophisticated. This has underlined the need for a global solution, she said.

“The challenge is to come up with a meaningful, future-oriented treaty that will secure protection of broadcast signals across the world and the investment by so-called traditional broadcasters in the new technological environment against all forms of signal misappropriation,” she said.

A revised version of document SCCR 33/3 will be prepared by the chair for the next session of the SCCR, according to Croella. The committee asked the chair to take into account the progress made during informal discussions held among member states, as well as to incorporate proposals for additional treaty elements to be discussed by the committee.