WIPO Draft Broadcasting Treaty: NGO Views On What To Keep, What To Change

The World Intellectual Property Organization draft treaty for the protection of broadcasting organisations was the focus not only of informal meetings among delegates this week, but also outside the negotiating room. On 27 November, Knowledge Ecology International (KEI) provided committee participants the impressions of five speakers keen on the topic, each with a different point of view underlining things they feel have to be improved to get to an effective treaty.

Panel l-r: Villaroel, Hackett, Ress, Sinha, Nobre, Love

The side event to this week’s meeting of the WIPO Standing Committee on Copyright and Related Rights (SCCR) was moderated by Manon Ress, director of Information Society Projects at KEI. The latest version of the text at issue is here: (IPW, WIPO, 28 November 2018).

Anubha Sinha of the Centre for Internet & Society in India reflected on the consequences of the treaty on balancing the position of broadcasters and internet streaming entities, fearing most the creation of an unequal playing field.

“This would be the first, immediate impact,” she said. “To then catch up, perhaps, internet streaming services would look to satisfy the treaty requirements to avail protection and this would involve satisfying the definition of a broadcasting organisation, and for their country to have ratified the treaty.”

“The point I’m trying to make is that this treaty seems to be set to protect a narrow slice of broadcasters, with significant market power in their home markets,” she said.

Sinha offered a piece of advice for the drafters: “I think that fundamental concepts and terms need to be properly clarified to arrive at an understanding that is shared across all stakeholders; and a corresponding strengthening of limitations and exceptions is urgently needed.”

Teresa Hackett gave the perspective of Electronic Information for Libraries (EIFL), highlighting the fact that preservation concerns born-digital content too.

“Professional, long-term preservation strategies require planning, funding and for the activity to be legal,” she said. “How do we ensure that protection for the broadcast signal, the carrier that delivers the content, does not impede preservation and access to the content?”

She recalled the intervention of Prof. Bernt Hugenholtz of the University of Amsterdam at a seminar organised by KEI on 3-4 October. “He warned about the dangers of over-protection. Nowadays, he said, we must think very carefully about the scope of any new rights being created. Why? Because enforcement of rights is increasingly automated or robotic, and robots do not recognize exceptions.”

The key point of this topic, in Hackett’s opinion, are four principles for limitations and exceptions in any broadcast treaty: not depriving someone of a lawful right to use content or access to content in a public domain; creating a treaty which is future-proof with a mechanism to allow for new exceptions introduced for content; not allowing licence terms or technological protection measures (TPMs) to take away the exceptions and agree on the fact that exceptions must be mandatory.

“To mitigate against the risk of over-protection, in this case defined as going beyond the stated objective of the treaty to protect against signal theft, exceptions must be mandatory and enforceable,” she said. “In other words, they must have a strong set of teeth.”

Luis Villaroel spoke on behalf of Innovarte, suggesting a collaboration, not an opposition, between broadcasters and the interest of the civil society.

“Something that would be useful is if broadcasters would support the inclusion in the broadcasting treaty proposal of enough safeguard for the public interest, particularly for libraries, disabilities and other activities that are important for the functioning of the society and, even, the economy,” he said.

“To reject the inclusion of a list of safe harbours for these activities and only rely on the three-step test, I think, is a mistake and, in consideration to what is the current understanding of the value of exceptions, necessarily creates opposition for a new instrument,” he said. “We think that would be a bright move from broadcasters if they would support a more positive provision with regard to mandatory exceptions within their instrument.”

Teresa Nobre of Communia presented the views of Creative Commons creators and users, evidencing the fact that broadcasters, following the treaty as it is proposed at the present time, get an additional right above and beyond the ones granted to the copyright holder.

“Anyone who wants to use a broadcasted work that is under a CC license is compelled to get permission from the broadcaster in addition to the CC license,” she said. “This negatively affects users of CC licences because they are prevented from doing the things that licences allow them to do, such as fixing the broadcast, sharing and reusing it.”

She concluded her statement by quoting Ryan Merkley, the CEO of Creative Commons: “Promoting and delivering content should not provide rights over the content itself, whether we call it a signal or something else.”

The closure was entrusted to James Love, from KEI, who said the real issue is not signal privacy, but something different.

“If the broadcasters just wanted a treaty to address the signal piracy, they could have had it before, these are solvable problems. But the fight is really over post-fixation rights,” he said.

“Broadcasters are facing complications from internet-based services [like Netflix, Amazon and Hulu] that operate with fewer rights, but provide services that the public prefers,” Love said. “They [internet-based services] do not have the related rights and this doesn’t seem to bother them. The broadcasters are the ones asking to not give rights to them, but only to themselves.”

Love also raised concern that civil society may not be being consulted sufficiently on the negotiations.

Image Credits: William New