NGOs Offer Views For WIPO Members Creating IP Rights Treaty For Broadcasters

World Intellectual Property Organization members have been working in relative secrecy this week to decide how far to apply intellectual property rights protections on broadcasts. To guide them, nongovernmental organisations offered a range of views, from sweeping protections to scaling back the proposed treaty.

The WIPO Standing Committee on Copyright and Related-Rights (SCCR) is meeting from 8-12 December.

The best part of the first two days were devoted to work on definitions, scope and rights, which condition further progress on a potential treaty to protect broadcasting organisations against signal piracy. Non-governmental organisations took the floor to comment on their approach to definitions.

The broadcasting treaty is one of three topics of the week for the SCCR, and talks are expected to shift to exceptions and limitations on the third day.

Negotiations have been based on a draft text [pdf] of the broadcasting treaty dated 25 March for several sessions, and negotiators have been trying to come up with a way forward on the scope of protection and the kind of protection to be awarded.

SCCR Chair Martin Moscoso circulated two charts in last sessions to aid discussions among member states. One of the charts is a table detailing the type of transmissions to be protected: pre-broadcast signal, broadcasting, and transmission over internet. The second chart refers to the rights to be granted according to the type of retransmission, whether it is simultaneous and near-simultaneous, transmission of the broadcast signal to the public from a fixation and over any medium, or the fixation of a broadcast signal.

This week, Moscoso came up with a third chart related to definitions and concepts. The current draft text contains an article on definitions (Article 5), including a number of alternatives that show member state differences over whether to include cablecasting, computer networks or other means. The chair’s chart lays out three main definitions: Broadcasting or cablecasting organisation, broadcasting and cablecasting transmission, and signal.

Sources say the issue of definitions is key to the discussions and links to both the scope of protection, currently addressed in Article 6 (Scope of application), and the nature of protection, addressed in Article 9 (Protection for Broadcasting Organisations).

After general statements in plenary on the first day of the meeting, the discussions went into an informal setting. Those not able to participate in the informal discussions were allowed to follow discussion in the plenary room.

However, all member states and observers were requested to refrain from publicly communicating about the discussions in those informal meetings, and the charts were distributed only on request, under the conditions that they are not publicly disclosed.

Definitions contained in the chart distributed on the first day of the session are based on contributions made by several delegations in previous SCCR meetings, Moscoso said. In particular, the document refers to some definitions in Article 5 of the draft text, and to some definitions from a treaty text proposal [pdf] submitted by several countries in May (Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan).

The document also includes existing definitions in international treaties: WIPO Beijing Treaty on Audiovisual Performances; WIPO Performances and Phonograms Treaty; and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.

Moscoso reported progress in the plenary on the second day of the meeting, both in the morning and in the afternoon.

In the morning, new WIPO Deputy Director General for the Culture and Creative Industries Sector Ann Leer said she “was encouraged to see so much positive energy and commitment.” She said several member states gave “very valuable contributions,” such as the European Union asking for a treaty “which is meaningful in terms of the technological reality,” and was echoed by the Czech Republic and Belarus.

“It echoed around the room,” she said “we want a meaningful treaty that will enhance and promote and protect intellectual property in the broadcasting world.” She concluded with a wish for the delegates “to keep up the good work,” adding she would be checking on the progress the following day.

At the beginning of the afternoon session, Moscoso said that efforts were being made in informal sessions to bridge gaps between several elements of definitions, and ponder if they should be included or not, so as to narrow the positions on those definitions. He also said work was done on the previous charts because of their interconnection with definitions.

He mentioned that the issue of pre-broadcast signals, signals that are not yet broadcast, was discussed and “some interesting road” was taken, with a possibility of having a different set of rights for pre-broadcast signals to protect them from piracy. This avenue might mellow “the total resistance that arose some meetings ago,” and allow for further discussions on the possibilities to address the issue, he said, but views are still divergent.

Civil Society Worried About Scope

Several non-governmental organisations (NGO) took the floor to comment on the ongoing discussions on definitions.

Knowledge Ecology International’s representative said it is more appropriate to provide protection for free services that are traditionally provided by radio and television and less appropriate for pay services. He added that following a number of discussions in the SCCR, there should be a definition of live sport broadcast. It might be that in some cases a more extensive protection would be provided for live broadcast, as this area presents particular challenges within the copyright system, he said.

The main concern on definition, KEI said, is that there is no guarantee that the treaty will not apply to anyone who creates a web page or anybody who creates a method of distributing information. It is problematic, he said, “in the sense that wireless technologies are now quite ubiquitous in terms of receiving internet transmissions.”

The TransAtlantic Consumer Dialogue representative said he was concerned that the scope of the definitions discussed and the protection of rights could mean a threat to access to culture, to freedom of speech and to the public domain, in particular public broadcasting signals. He advised avoiding post-fixation rights by having a very narrow definition of simultaneous or near simultaneous traditional broadcasting signals to the public in the air.

The Electronic Frontier Foundation said the treaty should be limited to addressing the unauthorised simultaneous and near-simultaneous retransmission of traditional broadcast to the public, “without assigning new exclusive rights in the content of those signals.” Creating new exclusive rights in post-broadcast fixation would impede access to public domain materiel, and material over which copyright limitations and exceptions may apply, said the representative.

Broadcasters Claim Gap in Copyright System

The European Broadcasting Union (EBU) stressed the importance of having a treaty adaptable to future technological developments, and of protecting pre-broadcast signal as piracy of that signal can take place before the broadcast for which broadcasters have acquired the rights to that signal or the content of that signal.

The British Copyright Council said there is a gap within the international copyright framework, which is used by “those who wish to side step the legitimate interests of copyright owners in an increasingly technological world.”

The gap should not be “filled by one set of rights replacing others,” the representative said, but filled in a way that compliments their effective application in the future, he added. “The unauthorised access undermines not only the value of the services provided by the broadcasting organisations, but also the value of rights carried by the signals issued by those broadcasting organisations,” he said.

The BCC representative added that keeping the definition of broadcast distinct from broadcasting organisations who may be recognised as the owners of any relevant rights is important.

Content Producers: Broadcasters Have to Respect their Rights

IFPI, which said it represents the recording industry worldwide, said recorded music is essential content for broadcasters, “yet, in some countries, artists and record companies have no or very limited rights as regards the use of the sound recordings in broadcasting.”

The representative added that a treaty, to which IFPI does not object, creating yet another layer of rights to broadcast organisations, should as a precondition require that contracting parties grant adequate broadcasting rights to artists and record companies.

The representative added that the definition in the treaty “should not blur the traditional definitions used in international copyright treaties, in particular that of broadcasting and other transmission activities.” She also said distinction should be made between broadcast organisations and other transmitting entities, and the treaty should be limited to protection required to fight signal theft.

The International Federation of Film Producers Associations (FIAPF) said signal theft affects the economic sustainability of broadcasting organisations, which are a substantial market for the film industry. The representative said FIAPF supports “a signal-based technologically neutral treaty.”

On the protection to be awarded, he said “we do not believe this protection requires granting exclusive rights as they may conflict directly with exclusive rights of individual content producers and distributors.”