WIPO Copyright Committee: New Broadcasting Treaty Texts Show Narrowing Of Scope

After a day of informal discussions on a proposed treaty on protecting broadcasters’ intellectual property rights, the World Intellectual Property Organization copyright committee yesterday issued two informal discussion papers showing a narrowing of the issues to be addressed. In particular, webcasting has been cast aside in the discussions for the moment.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is meeting from 30 June to 4 July.

Following the conclusion of the discussion on broadcasting, at the beginning of the afternoon on 2 July, delegates started work on limitations and exceptions to copyright for the benefit of libraries and archives.

The two new informal broadcasting documents followed two previous documents issued at the last session of the SCCR (IPW, WIPO, 30 April 2014).

Scope of Protection

One new one is a table [pdf] relating to the scope of protection of the treaty, and laying out the technological platforms to be considered in the discussions. A large part of the document is dedicated to transmission over the internet.

Out of this version of the document is “internet originated linear transmission,” or webcasting. According to SCCR Chair Martin Moscoso of Peru, who presented the document in plenary yesterday, consensus was reached during informal discussions on the fact that the SCCR should focus on three types of transmission over the internet. These are:

*”simultaneous, near simultaneous and unchanged transmission of broadcast signal (simulcasting)”;

*”deferred linear transmission of broadcast signal”;

*”and on-demand transmission of broadcast signal (catch-up).”

The protection of webcasting was an outstanding issue in previous sessions, in particular because webcasting concerns other stakeholders than broadcasters, including private internet users.

“If we are going to give a treatment to an activity made by some organisations, the same activity made by others may be under unfair rules or different rules,” Moscoso said, explaining that out of the informal discussions came the suggestion to leave webcasting apart and concentrate on other areas.

Also out of the scope of protection is “programme-related material,” which refers to transmission of complementary material that might be offered to users at the same time as some programmes. This material may not be related to the broadcast but merely complement it and may never have been nor ever will be broadcast, Moscoso said.

In an effort to appease some concerns, the document uses the terminology “broadcast signal” versus “broadcast programme” in the earlier version. The use of the word “signal” is closer to the mandate of the SCCR, the chair said, and the use of the word programme is understood by some to refer to works protected by copyrights and that would trigger unintended consequences.

Matrix of Rights

The second document [pdf] is a “matrix” of rights that might be included in the broadcasters’ treaty. The new version of this document shows a reduced list of rights but more horizontal issues that cut across the three areas of rights defined in the document.

The proposed protection covers:

* “simultaneous and near-simultaneous retransmission of the broadcast signal to the public over any medium”

*”transmission of the broadcast signal to the public from a fixation and over any medium (not limited in time) including (the making available right).” Some language in red ink is still under discussion and reads “in such a way that members of the public may access from a place and at a time individually chosen by them,” referring to on-demand transmission

*”fixation of a broadcast signal reproduction of fixations of broadcasts, distribution of fixations (copies) of broadcasts, performance of broadcast signal in places accessible to the public (against payment of an entrance fee)”

Technical Advice from Stakeholders

During the first day of the session, the chair proposed that some broadcasting organisations representatives be invited to the informal discussions to provide some technical information. This was challenged by some member states and it was finally decided nongovernmental organisations and others would be welcome to send technical explanations to the informal group.

Two contributions were received, which were shared yesterday in a compilation [pdf]. A technical explanation working paper was submitted by a number of broadcasting organisations, giving a definition of “Transmission versus retransmission” and “Pre-broadcast signal.”

The second contribution was a diagram illustrating different moments when a pre-broadcast programme carrying signals can be pirated.

The compilation will be extended if and when more contributions are received, Moscoso said.

Civil Society Concerns, Broadcasters Eager

A number of civil society groups delivered statements on 2 July, restating concerns about a new layer of rights provided by the broadcasting treaty. Among them was Knowledge Ecology International, which in its statement said not enough evidence has been provided by the demandeurs of the treaty for their need to have more exclusive rights to fight piracy.

The TransAtlantic Consumer Dialogue stated that the common good of the free flow of information for citizens should not be forgotten, and the Third World Network said that “there is a need to assess the impact of the various elements of the proposed treaty on the public domain, access to knowledge and freedom of expression.”

A representative of the Computer and Communications Industry Association (CCIA) said in a statement [pdf] that fixed signals are “a fiction” and that the programmes that are received are already protected by copyright. CCIA also said it is not necessary to “torture the copyright system by creating rights for signals just to prevent piracy of them.” The existing model in the Brussels Satellite Convention is “eminently suited to that task,” he said.

CCIA further said WIPO should analyse possible negative effects of any treaty such as this, and that requests for technical advice from “experts” should be published in the name of transparency.

Broadcasting organisations who took the floor advocated for a swift convening of a final negotiations to conclude a treaty answering the piracy issue.

William New contributed to this report.