Draft Broadcast Treaty Takes Restrictive Approach To Limitations And Exceptions 31/05/2018 by Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) The views expressed in this article are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors. By Sean Flynn At this week’s meeting of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights, there was renewed attention to the limitations and exceptions provisions of a proposed treaty for broadcast organizations. Unfortunately, the result of that attention was to make the draft treaty more restrictive for the adoption of exceptions. BROADCAST PROTECTIONS AND EXCEPTIONS The broadcast treaty proposes to require that countries grant broadcasting organizations exclusive rights over the content of program carrying signals to combat signal theft. A key issue in the treaty is the term of protection. Currently, the draft proposes terms of protection of 50 years, 20 years or an undefined period of protection. See http://www.ip-watch.org/2018/05/28/wipo-copyright-committee-opens-ideas-questions-internet-terms-protection/, For any term of protection longer than the life of the signal itself, exceptions for the use of the broadcast by others become paramount. Teachers, for example, need rights to use broadcasted content in teaching materials. Similarly, filmmakers, journalists and other creators of new works may need to use the content of signals in their transformative works, e.g. for the purposes of comment, review or illustration. An overbroad treaty with inadequate exceptions could thus conflict with rights to freedom of expression and to education and be to the detriment of creator and users. ROME CONVENTION The Broadcast Treaty is a kind of update to the Rome Convention, which included protections for broadcast signals in the international framework in 1961. The Rome Convention has two provisions on limitations and exceptions – one specifying permissible exceptions, and the second making clear that a country may “provide for the same kinds of” exceptions for broadcasts as it does for copyright. Rome Convention: Article 15 Permitted Exceptions: 1. Specific Limitations; 2. Equivalents with copyright 1. Any Contracting State may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Convention as regards: (a) private use; (b) use of short excerpts in connection with the reporting of current events; (c) ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts; (d) use solely for the purposes of teaching or scientific research. 2. Irrespective of paragraph 1 of this Article, any Contracting State may, in its domestic laws and regulations, provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms and broadcasting organisations, as it provides for, in its domestic laws and regulations, in connection with the protection of copyright in literary and artistic works. However, compulsory licences may be provided for only to the extent to which they are compatible with this Convention. It is important to note that the Rome Convention provisions on exceptions are entirely geared toward the explication of policy space, not its confinement. It does include the so-called 3-step test or other provisions designed to “confine” exceptions. CHAIR’S DRAFT The Chair’s draft for this round of the broadcast treaty negotiations contained provisions that both explicated and confined policy space. The draft included: Draft Broadcast Treaty Limitations and Exceptions (1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting organizations as they provide, in their national legislation, in connection with the protection of copyright in literary and artistic works, and the protection of related rights. (2) Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the programme-carrying signal and do not unreasonably prejudice the legitimate interests of the broadcasting organization. [Proposal on Limitations and Exceptions (3) It is presumed that the following, inter alia, constitute special cases which do not conflict with the normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of the right holder: (a) private use (b) the use of excerpts in connection with the reporting of current events; (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts; (d) use solely for the purposes of teaching or scientific research; (e) the use to specifically allow access by persons with impaired sight or hearing, learning disabilities, or other special needs; (f) the use by libraries, archives or educational institutions, to make publicly accessible broadcast protected by any exclusive rights of the broadcasting organization, for purposes of preservation, education and/or research; (g) any use of any kind in any manner or form of any part of a broadcast where the program, or any part of it, which is the subject of the transmission is not protected by copyright or any related right thereto.] Proposal on Obligations Concerning Technological Protection Measures ( ) Contracting Parties shall take appropriate measures, as necessary, to ensure that when they provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures, this legal protection does not prevent third parties from enjoying content that is unprotected or no longer protected, as well as the limitations and exceptions provided for in this Treaty. If all the above provisions were adopted, the end result would be relatively balanced. A similar provision to Rome permitting copyright-like exceptions would be present. The 3-step test in paragraph 2 would add an additional restraint on policy space not included in Rome. But there would be a further explication, in paragraph 3, that the Rome permissive exceptions, plus several new issues (disability access and library use), are presumptively in compliance with the 3-step test. Finally, a protection for exceptions to technological protection measures would mirror that included in the Beijing treaty. At this round, the text on limitations and exceptions became decidedly less balanced. While the provision adding the 3-step test to confine exceptions was retained, the language clarifying specific exceptions that could be maintained without 3-step challenge was eliminated. The result is a draft broadcast treaty text that is significantly more restrictive on exceptions than is either the Rome Convention or international copyright law. NGO PROPOSALS During the negotiations, NGOs wrote a letter to the Committee calling for a more expansive set of provisions should the treaty adopt a term of protection extending to post-fixation rights. They wrote: The proposals for exceptions in the Chairman’s text are narrow, and give broadcasters more robust rights than copyright owners or performers themselves. If the broadcasters’ right does not extend to post fixation rights, or has an extremely short term, the exceptions language may be less important. But since broadcasters are seeking rights that last for half a century, i.e. post fixation rights, the exceptions become extremely important. For any treaty involving post fixation rights, the exceptions in the broadcast treaty should include both mandatory and permissive exceptions. Mandatory exceptions should include those in Berne (news of the day and quotation), as well as for education and training purposes, personal use and preservation and archiving. The agreement should also permit non-mandatory exceptions that address both specific uses and more general frameworks such as fair dealing or fair use. Compulsory licenses should not be prohibited. If the treaty creates a layer of rights for entities that do not create, own or license the underlying works, this layer should not be used to prevent legitimate reuses of the copyrighted works. In no event should the exceptions for broadcasting rights be less enabling for users than the exceptions that apply to copyright. https://www.keionline.org/wp-content/uploads/2018/05/Joint-NGO-Broadcast-28May2018.pdf As described above, the treaty negotiations this round went the other way, emerging with a text that is significantly more restrictive than the international framework is for copyright exceptions. A CALL FOR MODERNIZED BROADCAST EXCEPTIONS It is time for the Broadcast treaty – after 20 years of negotiations – to grow into the modern age. Copyright exceptions are as important to promoting creativity and serving the public interest as are exclusive protections. To facilitate both the creation of new works and cross border access to the products of creativity, we need harmonization of exceptions as well as protections. There should be, as we recognized in the Berne Convention, universal enjoyment of quotations and news of the day. It is time to convert the 1961 Rome Convention exceptions into mandatory provisions – so in every country one will know there are rights to personal, educational and research uses. With the conclusion of a library, archives and museums treaty a long way off, those issue should be catered for here. There should also be a fuller explication of policy space for exceptions. These should include the flexibilities identified in the WIPO Copyright Treaties Agreed Statements to devise new exceptions for the digital (or in this case, broadcast) environment – not restrict exceptions to those provided for copyright. The treaty should use the permissive framing of the original Berne convention to ensure that any exception in compliance with the 3-step test is permissible. And the treaty should protect the rights of countries to adopt flexible exceptions such as fair use or dealing, as did the Marrakesh treaty. A better limitations and exceptions provision for the broadcast treaty might read: Broadcast Treaty PROPOSAL Limitations and Exceptions: 1. Mandatory Exceptions; 2. Permitted Exceptions; 1. MANDATORY EXCEPTIONS Parties shall take all appropriate steps, in accordance with international law, to ensure an appropriate balance between the rights of broadcasters and of users and the general public, including by providing limitations and exceptions for legitimate purposes including, but not limited to, quotation and news of the day private use; use of short excerpts in connection with the reporting of current events; ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts; use solely for the purposes of teaching or scientific research, preservation, archiving and other uses by libraries, archives and museums, facilitating access for people with disabilities, uses integral and essential part of a technological process that does not express the work to the public, such as for transmission in a network or to facilitate indexing or search. 2. PERMISSIVE EXCEPTIONS Irrespective of paragraph 1 of this Article, any Contracting State may, in its domestic laws and regulations, provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms and broadcasting organisations, as it provides for, in its domestic laws and regulations, in connection with the protection of copyright in literary and artistic works. Nothing in this agreement prevents a party from using compulsory licences with respect to a protected broadcast. It shall be a matter for legislation to permit the use of such broadcasts in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. Contracting Parties may enact limitations or exceptions specifically for identified purposes, other limitations or exceptions, or a combination thereof, within their national legal system and practice. These may include judicial, administrative or regulatory determinations for the benefit of beneficiary persons as to fair practices, dealings or uses to meet their needs consistent with the Contracting Parties’ rights and obligations under the Berne Convention, other international treaties, and this Agreement. It is understood that the Contracting Parties may carry forward and appropriately extend into the broadcast and digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, Contracting Parties may devise new exceptions and limitations that are appropriate in the digital network environment. It is understood that nothing in this Article prevents a Contracting Party from adopting effective and necessary measures to ensure that a beneficiary may enjoy limitations and exceptions provided in that Contracting Party’s national law, where technological measures have been applied to a broadcast and the beneficiary has legal access to that performance, in circumstances such as where appropriate and effective measures have not been taken by rights holders in relation to that performance to enable the beneficiary to enjoy the limitations and exceptions under that Contracting Party’s national law. Sean Flynn is the Associate Director of the Program on Information Justice and Intellectual Property at American University Washington College of Law, and a member of a coalition of education and research organizations observing the WIPO SCCR.  See Comprehensive and Progressive Agreement for Trans-Pacific Partnership  Berne Convention  Rome Convention  Working Document Containing Comments on and Textual Suggestions Towards an Appropriate International Legal Instrument (in any form) on Exceptions and Limitations for Libraries and Archives, WIPO SCCR 26/3  Marrakesh Treaty  See, e.g., EU Infosoc Directive  Rome Convention  See Rome Convention  Berne Convention  Marrakesh Treaty  WCT Agreed Statements  Beijing Treaty Image Credits: Sean Flynn Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related "Draft Broadcast Treaty Takes Restrictive Approach To Limitations And Exceptions" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.