WIPO Delegates Progressing On Once-Moribund Broadcasting Treaty

A meeting meant to advance discussions on a treaty to protect the rights of broadcasting organisations held last week at the World Intellectual Property Organization yielded substantive results, according to the meeting chair. However, civil society remains cautious about potential side effects of such an instrument, while countries appear to have divergent views on the practicalities of the treaty.

The Inter-sessional Meeting on the Protection of Broadcasting Organizations took place from 10-12 April. Delegates chose to focus on three main topics of the treaty: beneficiaries, scope of protection, and the rights to be attributed to broadcasting organisations, and clarified their positions, Alexandra Grazioli, chair of the meeting, told Intellectual Property Watch.

According to some sources, non-governmental organisations offered very active participation in the meeting. Grazioli said the work of the inter-sessional meeting had been important for text-based work at the next session of the Standing Committee on Copyright and Related Rights (SCCR) to be held from 28 July-2 August. Delegates will then work on the Working Document for a Treaty on the Protection of Broadcasting Organizations [pdf].

During the three-day meeting, a number of delegations took the floor to deliver points of views which were sometimes divergent on essential points.

One of the issues discussed was the interpretation of the mandate of the WIPO General Assembly, which in 2006 approved the convening of a diplomatic conference (a highest level negotiation) on the Protection of the Rights of Broadcasting Organizations. The 2007 General Assembly [pdf] confirmed the 2006 decision which stipulated that “The scope of the Treaty will be confined to the protection of broadcasting and cablecasting organizations in the traditional sense,” but also asked that the convening of a diplomatic conference only be considered “after agreement on objectives, specific scope and object of protection has been achieved.”

This brought back some discussions last week, as some would like to include internet in the scope of the treaty. Some countries said they would favour a technology-neutral approach so that solutions be found to fight unauthorised downloading on the internet.

On the second day of the meeting, the United States proposed an approach that raised interest among delegates. According to some sources, the US said given the interest of broadcasting organisations, the reluctance of civil society and the nature of the General Assembly mandate, “it seems to us that the only realistic way to achieve results without years of additional debate would be to find a compromise based on a core of common agreement.”

According to sources, the US suggested focussing on “true” signal piracy, which they described as real time transmission of the signal to the public without authorisation. They said the protection should be formulated so as to be technology-neutral “in the sense of the platform through which the piracy takes place as opposed to the objective protection.”

This approach, they said, would avoid discussions about post-fixation uses. Post-fixation of a signal refers to recording of the content brought by the signal. That would be “a minimum international obligation with the freedom for countries to either implement it through whatever means they want in their national law and also with the freedom to have a greater array of rights if they so chose,” they said. Later they added that there should be protection against retransmission over the internet and protection of prebroadcast signal as well as the signal that’s been transmitted.

This was greeted positively by India. South Africa also approved of the suggested approach, as did Brazil, according to sources.

The European Union said the main focus of the treaty should be on the protection of the signal, not on the content. They said preventing illegal retransmission is important and this could occur post-fixation. They said it is important to “offer a full protection of signal.” Some stakeholders, such as India and some non-governmental organisations such as the Computer and Communications Industry Association (CCIA) have said that a fixed signal does not exist, as a signal is the mere means of transporting programmes.

Japan, according to sources, supported the EU and outlined the importance of the rights of fixation and post-fixation rights. Russia also was of the same opinion. Japan issued a document [pdf] for distribution to delegates on the main issues of the broadcasting treaty.

Broadcasting Organisations Voice Support for the Treaty

On numerous occasions, the broadcasting organisations such as the European Broadcasting Union (EBU), the Asia Broadcasting Union, and the US National Association of Broadcasters highlighted the importance of the treaty. The EBU said the treaty would help broadcasters to fight piracy but insisted that the making available right be included in the treaty. “If the consumer demands from the broadcaster to make its programmes available in an on-demand way, then, of course, the broadcaster will demand that there is a protection for such service,” the EBU said, according to sources.

According to the EBU, technological innovations have increased the scope for international signal theft and other forms of misappropriation of broadcast signals. Referring to a 2012 WIPO study on the economic contribution of the copyright industries, the representative said that broadcasting is the third largest of the copyright sectors after software, representing twice as much as the music industry and more than three times that of the film industry. “This is a reason why I cannot see a justification for providing broadcasters with less rights than other rightholders have been given,” the EBU representative said.

The CCIA replied that copyright is designed to protect creativity, and is not something “for sale to the highest bidder. “”The protection enjoyed should be to incentivise creativity and its commercialisation rather than simply be granted because stakeholders have a particular economic position.” The CCIA also said that the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite [corrected] approach of prohibiting the misuse of signals is sufficient for the purposes of preventing piracy.

Civil Society Concerns

At the close of the meeting, a representative from the Brazilian Fundação Getulio Vargas law school said civil society has been opposing the treaty for a long time out of concern that it would potentially harm customers, citizens, innovation and the free flow of information on the internet. Rights included in the treaty would allow broadcasters to block competition and innovation by allowing them to control the types of device that can receive transmissions, the representative said, according to sources. It would also create new liability risks for the internet intermediaries, he said, calling for an approach that would not infringe citizens’ rights and all other stakeholders, and would respect access to knowledge, to culture, the freedom of expression, and the public domain.

Talks for the broadcasting treaty date back well over a decade, and nearly reached the level of a diplomatic conference in 2007 before breaking down over differences (IPW, WIPO, 22 June 2007; IPW, WIPO, 22 June 2007).