WIPO Broadcasting Treaty: What Broadcasters Really Want To Protect Their Business From Piracy

In discussion for close to 16 years at the World Intellectual Property Organization, a treaty aimed at protecting broadcasting organisations’ intellectual property rights has not reached conclusion. Intellectual Property Watch sat down recently with the European Broadcasting Union to understand what broadcasters actually say they need to protect their businesses against piracy. As to what they see hindering the technical resolution of the treaty? Politics.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is where the negotiations for a broadcasting treaty are being held. According to a WIPO background brief,  after WIPO members agreed the so-called WIPO Internet treaties in 1996 – the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (sound recordings) – “broadcasters too began to press for updated protection for the new broadcasting technologies.” Separately, in 2011, the Beijing Treaty on Audiovisual Performances was adopted.

The Geneva-based European Broadcasting Union (EBU) is “the world’s leading alliance of public service media.” It has 73 members in 56 countries in Europe, and 34 associates in Asia, Africa and the Americas.

EBU members operate almost 2,000 television and radio channels together with numerous online platforms. Together, they reach audience of more than one billion people around the world, broadcasting in more than 120 languages, according to Heijo Ruijsenaars, head of the Intellectual Property, Legal Department at the EBU. The EBU operates the Eurovision and Euroradio services.

A treaty can only deal with the cross-border situation and seeking to provide the same protection to foreign broadcasters as the national law provides for national broadcasters. What happens at the domestic level is not dealt with by the potential treaty, he said.

Broadcasters are always transmitting a signal to the public which can be done either over the air, by terrestrial means, by wire, by satellite, and on the internet. On the internet, there are basically two systems: a closed system, in which the public has to have a subscription or log-in account to access the content, and an open system, where the website is accessible to everybody, he explained.

All those signals carry content, for which rights have been paid by the broadcasters. Each signal can be copied and redistributed by the same means as the delivery mode for a broadcast, he said, adding that every kind of broadcast can be pirated, mostly popular ones, such as sports events, series, films, and even news.

Retransmission

There are two elements to it, according to Ruijsenaars. Under the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, rebroadcasting is already covered, and this is where the “classical piracy” takes place. That is a situation in which a broadcaster takes the signal from another broadcaster and broadcasts it at exactly the same time, simultaneously. But “rebroadcasting” is defined as only by “wireless” means.

Today, broadcasts can be retransmitted by wire so there is a gap in the Rome Convention, and this is what cablecasters do, they retransmit simultaneously, he said. Even at the European Union level, there is no exclusive retransmission right. But it exists at the national legislation in all member states, he said, adding that there is a need to include also “deferred” retransmission, because the piracy can take place a day, a week or months after the pirated broadcast.

The definition of retransmission must be clear in covering that situation in the treaty, he said. The proposal for a “near-simultaneous” retransmission does not meet the concern of broadcasters because it is defined as only covering a certain time period exclusively for technical reasons. This is likely to be interpreted narrowly, so can be two seconds or perhaps one hour, but would not cover longer delays and thereby fails to include most online piracy of broadcasts, Ruijsenaars said.

Pre-Broadcast Signal – Sport Events

Most “pre-broadcast” signal piracy takes place in respect to large sport events, he explained. A typical example is the Olympic Games where a lot of things are happening at the same time, and the local production units send their live signals to the broadcaster who has paid for the rights and who can broadcast it.

“We are talking about hundreds of signals at the same time, and the broadcaster can only use part of those signals in its programme schedule. At the same moment when the signal is sent to the broadcaster for editing and adding its commentary for broadcasting it, the signal can be intercepted by a pirate, and used simultaneously or put on the internet,” he said.

This signal would not be considered as a broadcast because it was not intended to be delivered to the public. But since the broadcaster has already paid for the content rights, if somebody else uses it, that use is economically detrimental to the broadcasters, he further explained.

On-Demand Services

Broadcasters would like the treaty to include their on-demand services. These include catch-up services with the exact same content as the original broadcast, and also catch-up services which provide additional content, for example a longer video clip than the one originally provided in a news story, he said. That would be called “related” online material, he added.

Rights

For broadcasters, there is the retransmission right and the making-available right. The making-available right is included in the other existing treaties, and is the core of the potential treaty at WIPO.

The retransmission right is an extension of the Rome Convention, and would include wire and internet transmission, simultaneous and maybe deferred transmission.

The retransmission is always different from the making-available because with a retransmission the consumer cannot determine the time of reception. It is the transmitter who decides. In the making-available, the consumer decides on the time of use, he said.

There is also a difference between exclusive rights and the right to prohibit. The difference dates back to the Rome Convention and the protection of performers. Some countries wanted to have the possibility to provide for the right to exist not in their copyright law but in other laws. The US came up with that idea because their existing rights for broadcasters are not dealt with under copyright law but under communications law, he explained.

The right to prohibit is thus intended to make it possible for the contracting party when implementing the treaty not to use copyright law but another law.

The right to authorise is an exclusive right so it is the same as any other copyright. That is what broadcasters would wish for, as it is the same in any other treaty.

Wish List

Long delays in the debate since 2006-2007 have been caused by an increased political dimension and lack of technical expertise in the SCCR, Ruijsenaars told Intellectual Property Watch. At the beginning of the discussions, from 1999 to 2005, discussions at the SCCR were conducted among experts, mainly heads of copyright offices, he said.

One of the elements that hindered the final adoption of a basic text was the introduction of webcasters in the beneficiaries of the treaty, according to Ruijsenaars. There was no obvious solution for that situation.

The adoption of the 2007 WIPO Development Agenda also initiated a different type of discussion at the SCCR, which became more political, with less copyright expertise and more non-substantial issues, he said.

When in 2007 the subject of limitations and exceptions to copyright became part of the SCCR discussions, it led to a politicisation of the process and to unnecessary linkages between the SCCR topics, which caused delays in discussions, he added.

According to Ruijsenaars, “the perfect treaty would be a future proof treaty in the sense that it would be as far as possible technological neutral and covering all activities conducted by broadcasters.”

“Politically that might not be achievable, and I can understand that in order to make a distinction between webcasting organisations and broadcasting organisations you need to have some kind of compromise,” he said. “But it is a drafting issue, it is not an impossible task.”

After 18 years, since the start of the discussion at the SCCR in November 1998, broadcasters have not lost hope, because the reasons for the delay have always been political linkages and were never due to the substance of the treaty itself, he told Intellectual Property Watch.

“However, I fear that if the broadcasting discussion remains linked to other discussions at WIPO and if such linkages will continue to be made for political reasons, any further delay will make the process no longer credible,” he said.

“It is a general WIPO norm-setting dilemma. Each topic should be looked at on its own merit, otherwise no topic will ever reach its desired destination,” he said.

“We do not have any issue with limitations and exceptions, and we are users of limitations and exceptions to copyright so we have no problems with such discussion to take place also at WIPO, but every copyright lawyer knows that establishing one single treaty on all possible limitations and exceptions is – given the substantial differences in the national laws – a much more challenging task than a broadcasters’ treaty. But it does not mean these issues are not important,” he concluded.

Piracy Rampant

Meanwhile, according to a December press release by Irdeto, “the world leader in digital platform security,” content theft “by pirates has become a full-fledged business and a formidable competitor to established pay TV operators.”

Data collected by Irdeto show that “today there are more than 2.7 million advertisements on e-commerce websites, including Amazon, eBay and Alibaba for illicit streaming devices,” and those advertisements can also be found on social networks, including Facebook, Twitter, and other social media platforms, the release said.

Irdeto also notes that “while some consumers are aware that they are purchasing pirated content, others do not realize that the subscriptions they are purchasing are pirate operations.”

 

Image Credits: Flickr – pbkwee