WIPO Side-Event Highlights Exceptions, Limitations In Broadcasting Treaty

By Tove Iren S. Gerhardsen
Concerns that a new treaty on broadcasting being discussed at the World Intellectual Property Organization (WIPO) this week will be unbalanced, providing extra protection rights for broadcasters and further limits to users, was the topic of an event alongside the negotiation. The impact on developing countries was of particular concern.

Negotiations on treaty to boost the rights of broadcasters and cablecasters, which have lasted for more than eight years, are taking place at the 18-22 June meeting of the WIPO Standing Committee on Copyrights and Related Rights (IPW, Broadcasting, 19 June 2007).

The 19 June event, sponsored by the intergovernmental South Centre, was entitled, “The Proposed Treaty on the Protection of Broadcasting and Cablecasting Organizations: Will Developing Countries Benefit?”

The broadcasting treaty negotiation is “highly complex” and finding an agreement should not be done in a “simple, quick [and] easy” manner, said one speaker.

Viviana Munoz Tellez of the South Centre said that the impact of such a treaty was likely to be significant for national broadcasting policy and regulatory frameworks, copyright owners, customers and citizens, competitors as well as new media technology development. Referring to an earlier study by the South Centre, she stressed the need in the treaty for access to knowledge, freedom of expression, cultural diversity, competition, technological innovation and flow of information.

“Broadcasting as a public service is critical for development,” Munoz Tellez said, adding that most people in developing countries get their information, education and entertainment mainly from radio and television. She said that the ideal broadcasting scenario for developing countries would be “characterised by plurality and diversity in the number of players in the sector, forms of broadcasting, i.e., public-private and community, and content.” She also stressed accessibility and affordability.

Munoz Tellez referred to legal frameworks for broadcast protection, including the 1961 Rome Convention (which this week’s talks seek to update), the 1974 Brussels Satellite Convention and the 1994 World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). As for this week’s meeting, a chair’s non-paper is on the table but there is disagreement as to its status and contents, sources said.

As for the scope of the treaty, Munoz Tellez said the protection should “stop at the point where the signal is received,” and should only address signal theft. She also called for further impact assessment studies for developing countries, which was echoed by others at the event, although one participant raised concerns about further delays of an agreement. Such assessments have been tentatively agreed to by WIPO members under the Development Agenda recommendations (IPW, WIPO, 18 June 2007).

Dalindyebo Shabalala, director of the Intellectual Property and Sustainable Development Project at the Center for International Environmental Law, referred to limitations and exceptions on broadcasting in terms of content found in older treaties such as the Berne Convention, TRIPS and the WIPO Copyright Treaty (WCT) covering, for example, education and teaching exceptions.

“Exclusive rights are always accompanied by public interest exceptions and limitations,” Shabalala said. “Public interest access to broadcast through limitations and exceptions must be at least as equivalent as would be available for the underlying copyrighted material, or the rationale would not be served,” he said in his presentation.

There should be a “proper balance” between obligations and exceptions, he said, and if rights are mandatory, it would make sense that exceptions and limitations also are. At a minimum, these should include personal use, use for criticism or review, education and library use, scientific or research use, reproduction by the press and enabling access for disabled persons.

Gwen Hinze, international affairs director at the Electronic Frontier Foundation, discussed technological protection measures (TPMs) and compared Article 9 of the chair’s non-paper on “Protection of encryption and rights management information” with Article 19 of SCCR/15/2/Rev, which is still considered the official draft of the treaty.

Article 9 states that, “Contracting Parties shall provide adequate and effective legal protection against unauthorised decryption of an encrypted broadcast, or circumvention of any technological protection measure having the same effect as encryption.” She said that this article is “overbroad” as it would cover even personal computers, which are capable of decryption, and the provision could render exceptions and limitations “meaningless.” She said that TPMs are generally broader than encryption.

Hinze said that TPMs on fixed transmissions or recorded content would impede access to content, affecting students, journalists, librarians and others, and could “restrict consumers’ uses of lawfully acquired programming after reception within home.”

TPMs on unfixed broadcast and cablecast transmissions raised a second set of issues concerning innovation and competition policy, she said, because broadcaster TPMs are enforced by devices. Implementing the TPM provisions would require a technology mandate law over the design of devices that can receive broadcast and cablecast transmissions over the Internet. Under the proposed treaty, broadcasters and cablecasters could use a TPM on transmitted content together with their new retransmission rights to control the market in devices that receive transmissions.

“[The] only way to safeguard exceptions and limitations that protect the public interest, and ensure that [the] treaty doesn’t impact access to knowledge or innovation policy is to remove the treaty’s TPM provision (Article 19 of SCCR/15/2 and Article 9 of the non-paper),” Hinze said in her presentation. “[An] overbroad device ban could render meaningless any exceptions and limitations because consumers will have no practical ability to circumvent for non-infringing purposes.”

Tom Rivers, external legal advisor to the Association of Commercial Television (ACT) in Europe, said from the audience that broadcasters are worried about “wholesale theft” of a broadcasting being retransmitted by a “freebooter.” He said some of this takes place on the Internet, where the brands of companies such as CBS and ABC are used as part of the marketing. He said the WIPO General Assembly had not used the term “signal theft” but “signal-based approach,” so the discussion of the non-paper should not be restricted to signal theft.

Rivers caused debate around material in the public domain. He said that when the phonographic industry releases a recording of Beethoven, it gets (related) rights although it is in the public domain, to pay for investments in infrastructure and for providing material that would otherwise not be made available. He appeared to be concerned that a broadcast of a Shakespeare production, for example, should be covered by the treaty. Some in the audience raised the issue that there are a number of different definitions of what constitutes the public domain.

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.