WIPO Negotiations Threaten Exclusive “Signal-Based” Protection In Broadcasting

The various aspects of the application of copyright and neighbouring rights in the digital age have been discussed under the aegis of World Trade Organization (WTO), United Nations Educational, Scientific and Cultural Organization (UNESCO) and World Intellectual Property Organization (WIPO). As a United Nations (UN) agency responsible for the promotion and protection of intellectual property rights, WIPO has played and will play a significant role in the establishment and adaptation of these rights, which include the protection of the rights of broadcasting organisations. In the modern world, the distribution of information in the form of work can be done through various means of transmissions like satellite, cable network and internet (webcasting)¹.

At present broadcasting organisations have legal protection only over the transmissions made through wireless means (satellite). They are enjoying certain level of protection against signal theft² under the existing international regimes, namely the Rome Convention 1961³, Brussels Satellite Convention 1974⁴, Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement 1994⁵ and WIPO Performances and Phonograms Treaty (WPPT) 1996⁶.

Neighbouring rights are a distinct form of intellectual property protection. The term used to indicate rights of performers and producers to be compensated when their performances and sound recordings are performed publicly, broadcast, rented out or reproduced. Here the rights of performers and broadcasters are protected under ‘copyright law’ against the unauthorised use of their performances and signal theft.

The purpose of ‘neighbouring rights’ is to protect the interests of certain persons or legal entities that either contribute to making works available to the public or produce subject matter that is considered worthy of copyright-like protection, which is not original or creative enough to qualify as a work under a national copyright system⁷. The beneficiaries of neighbouring rights are generally producers of phonograms, performers and broadcasters. Broadcasting has been traditionally conceptualised as a ‘public good’⁸, in the sense that the effort and cost required to provide it to one person is the same as if it is provided to many.

Since the first meeting of the Standing Committee on Copyright and Related Rights (SCCR) in November 1998, WIPO has been addressing the topic of updating the protection of the rights of broadcasting organisations. Most statements of the rationale for the separate treaty for protecting the broadcasting rights are paying attention on the threat of signal theft. With the current treaties’ expansive intellectual property rights framework, a future treaty could focus on a more limited ‘theft of signal’ or services approach. This focus of updating the treaty to consider new technology also implies that the treaty also contains requirements for protecting technological protection measures (TPMs)⁹.

The proposed treaty will provide broadcasters, cablecasters and possibly webcasters¹⁰, a range of new rights that substantially expand both the scope and duration of currently recognised rights. It also seeks to highlight the interests of broadcasting organisations, which had not been included in the Rome Convention and WIPO treaties (WCT, WPPT). By reflecting an apparent need to introduce new international rules in order to provide adequate solutions to the questions raised by socio-economic and technological developments and recognising the impact of the development and convergence of information technology¹¹, the new treaty will create a technological oligarchy in favour of the developed nations.

The WIPO ‘draft non-paper’ released on March 8, 2007¹² claims that a ‘signal-based approach’ will be given copyright-like protection and this is agreed by the WIPO General Assembly and SCCR. However, as there was no agreement as to what was meant by a ‘signal-based approach’ (rights-based); yet the draft incorporates both an ‘exclusive signal-based’ approach and ‘specific protection against signal theft’¹³. This exclusive ‘rights-based’ approach will create a new intellectual property right, such as rights in ‘broadcast signals’, which will be layered upon existing copyright in the underlying ‘programme content’. This was rejected by United States, India, Brazil, and many developing countries¹⁴.

The separation between ‘content’ and ‘content-carrying signal’ is essential for maintaining a proper balance between the rights of copyright holders and broadcasters. Signal protection set up a ‘new layer of intellectual property-like rights over and above the rights of copyright holders’¹⁵. This is because the broadcasters are not usually the creators of the works they transmit; they only distribute the information embodied in the created works. Creators, on the other hand, are granted protection over their works through legislations pertaining to copyright.

The major questions are whether it is justified to grant new rights to broadcasting organisations, similar to those granted to the creators, through new international copyright norms? Will it constrain the rights of the copyright holders in favour of the broadcasting organisations? If so, will it eventually create an ownership over the ‘contents’ broadcasted in favour of the broadcasting organisations?

The television shows and movies that are broadcasted are owned by those who produce them, i.e., copyright holders. Today, in order to use a copyrighted work, users only need permission from the copyright holder. But giving broadcasters a 50-year¹⁶ exclusive right in the content they broadcast, the treaty will force users to acquire permission from broadcasters in addition to copyright holders. Broadcasters will not only be able to claim a share of the limited pool of licensing funds reserved for copyright owners, but will also have the power to determine the conditions under which a work can be used. This will seriously diminish the rights of copyright holders.

The draft text would have given broadcasting and cablecasting organisations exclusive rights over ‘anything they transmit’ equivalent to a new intellectual property right. It provides broad rights which in parallel with scientific measures and protected subject-matter could prevent or restrict the flow of information. With respect to materials which may not be protected by copyright, such as news, or information which are in the public domain¹⁷.

This will restrict rights over recording and retransmission that could substantially raise the costs of using broadcasted material for personal or research and educational purposes, inhibit creativity, and restrict the entry of information into the public domain¹⁸. This approach aims well beyond what was necessary to simply prohibit the theft of signals, which has cost broadcasters and cablecasters advertising and sales revenues. This may weaken the balance between the economic interests of broadcasting organisations and values of freedom of expression.

The WIPO proposed treaty perpetuates the asymmetrical relationship over broadcasting rights between the developed and developing nations. That means developed nations hold more rights than the developing nations. Also, it will create a remarkable skew in favour of the multinational broadcasting companies based in developed nations. The draft treaty may negatively affect the copyright holders¹⁹ and the public²⁰, especially from developing countries. A conflict may be described in the draft treaty, between the rights of the broadcasting organisation and the ‘right to freedom of expression’²¹, which advocates the freedom to receive and impart information and ‘copyright’²².

Relfi Paul is a PhD candidate at Mahatma Gandhi University in Kerala, India on the topic of the global intellectual property rights regime and broadcasting rights with special reference to India. Paul completed an MA in Politics and International Relations from Mahatma Gandhi University in 2004, and holds an M.Phil (International Relations) from Pondicherry Central University. He has published in numerous national journals.

¹ Webcasting means the transmission of sounds or of images or of sounds and images by wire or wireless means over a computer network for the reception by the public, by means of a programme carrying signal which is accessible for members of the public at substantially the same time.

² Using signals without the authorisation of broadcasters, which could cause the economic losses for broadcasting organisations.

³ It establishes that broadcasters have the right to prohibit but not to ‘authorise’ the fixation, reproduction of fixation, and the re-broadcasting by wireless means of broadcasts.

⁴ The Brussels Satellite Convention protects broadcasters’ rights by allowing members to prevent dissemination of programme-carrying signals by any distributor for whom the signals are not intended. The duration is to be decided by national law.

⁵ Article 14(3) – Broadcasting organisations have the right to control the fixation, reproduction, wireless re-broadcasting and communication to the public of broadcasts.

⁶ Articles 15, equitable remuneration for wireless broadcasting or for any communication to the public of phonograms

⁷ Viviana Muñoz and Andrew Chege “The proposed WIPO treaty on the protection of broadcasting organisation: Are new rights warranted and will developing countries benefit” South Centre, September 2006.

⁸ See Judgment delivered by Supreme Court of India (Justice P.B. Sawant and Justice S. Mohan) on 9.2.1995 in the case between the Union of India & Cricket Association of Bengal.

⁹ i.e. technologies that control use and access to digital media content on electronic devices with the technologies installed

¹⁰ Under the United States proposal, but that was not successful so the protection of webcasters was left out of the draft, but it will be part of a separate discussion in the SCCR.

¹¹ See WIPO document, Preamble, Rev.2, SCCR/12/2

¹² www.wipo.org

¹³ See WIPO draft non-paper published on March 8, 2007

¹⁴ Tilman Lueder- copyright and knowledge-based economy, DG Internal Market and Services, European Commission, Bruxelles.

¹⁵ See UNESCO document (Executive Board), session 171, item no.65, Paragraph-5, Paris, 8 April 2005.

¹⁶ Term of protection is only 20 years in the existing international treaties, Rome convention (Art. 14), TRIPs (Art.14 (15)), but in the proposed treaty it is 50 years.

¹⁷ See Partica Akestar “The draft WIPO broadcasting and its impact on freedom of expression” UNESCO, e-Copyright Bulletin, April- June 2006.

¹⁸ Trineesh Biswas (ed), WIPO general assembly finds way forward on broadcast treaty” Bridges Weekly Trade News Digest, Vol-10, No-32, 4 October, 2006.

¹⁹ The draft broadcasting treaty would enable broadcasting and cablecasting organisations to control materials that are in the public domain by transmitting them.

²⁰ See (SCCR/12/2 Rev.2, Preamble), WIPO draft treaty, could weaken the balance between the rights of broadcasting organisations and the larger public interest, particularly education, research and access to information.

²¹ The right to freedom of expression is a fundamental right that has been recognized at international level. According to the Universal Declaration of Human Rights (Art.19), everyone has the right to freedom of opinion and expression, which includes the right to seek, receive and impart information and ideas.

²² See Partica Akestar “The draft WIPO broadcasting and its impact on freedom of expression” UNESCO, e-Copyright Bulletin, April- June 2006.