New Text On Broadcasting May Open Way To Fresh Discussions On Treaty At WIPO

Years of discussions at the World Intellectual Property Organization on a treaty protecting broadcasting organisations against piracy of their signals have not been enough to reach consensus language on core principles, such as who and what to protect, and what kind of rights should be granted. This week the newly appointed committee chair suggested that an informal text prepared by the previous chair be made a formal document to serve as a basis for further textual discussions.

The proposed text [pdf] tabled this morning is based on a consolidated text drafted by former chair of the WIPO Standing Committee on Copyright and Related Rights (SCCR), Martin Moscoso from Peru.

It adds new elements such as on definitions of broadcasters and broadcasting, object of protection, and rights to be granted.

Moscoso had drafted the text [pdf] after the last session of the SCCR, from 14-18 November, including the result of informal discussions held then.

Yesterday, at the end of the second day of the 34th session of the SCCR, and after a day and a half of closed discussions with strict instructions to participants on non-communication about the conversations, the formal meeting reconvened.

Chair Suggests Way Forward

Newly elected SCCR Chair Daren Tang, chief executive of the Singapore IP Office, said the informal discussions allowed to have a better sense as to which issues are more political, and which technical issues need further discussions.

He said one key policy difference remains on the most intractable issue of deferred transmission, which refers to a rebroadcasting of programmes at a later time than the original broadcast.

No Recommendation for Diplomatic Conference

Tang said that “realistically speaking” the SCCR would not be able to propose a consensus recommendation to the General Assembly to move towards a diplomatic conference. However, some progress has to be shown, he said. The text provided by Moscoso provides a structure with which everyone is comfortable, he said.

Several delegations confirmed this to Intellectual Property Watch.

Tang suggested that Moscoso’s text be transformed as a formal SCCR text, and that divergent views expressed during the informal discussions this week be reflected in that text.

He also suggested to keep the SCCR recommendation to the WIPO General Assembly “short, sharp and sweet,” and indicate that the SCCR working document can be a basis for further discussions, with a view to convene a diplomatic conference, but without specifying a time frame.

Russia and China remarked that working in formal session (plenary) would be more effective. Russia remarked that the whole day in informal meeting did not allow to “move even one step forward.” More would be achieved in plenary session, the Russian delegate said, supporting the chair’s proposal to transform the consolidated text into a formal SCCR document.

The European Union asked that text that has been added be somehow highlighted in the new document to differentiate previously discussed elements from new elements resulting from this week’s discussions. Italy and China supported this idea.

Additional Elements

The draft consolidated text by Moscoso focused on core issues: definitions, object of protection, rights to be granted, and other issues: beneficiaries of protection, limitations and exceptions, obligations concerning technological protection measures, obligations concerning rights management information, and term of protection. Several elements were added by delegations to Moscoso’s draft text.

Two new definitions were added in (Section I – Definitions – Alternative D). One of broadcasting, and one of traditional broadcasting organisations. Some countries had been insisting that the treaty should only protect signal-based transmissions made by broadcasters in the traditional sense.

A whole new section was added (Section X), including four articles: relation to other convention and treaties, general principles, the protection and promotion of cultural diversity, and defence of competition.

In Section II – Object of protection, alternatives were added. Alternative B explains that the protection extends only to programme-carrying signals as broadcast, whenever transmitted by, or on behalf of, a broadcasting organisation (or cablecasting) organisation within the term of protection, but not to programmes contained therein.

One other alternative of Section II notes that broadcasting organisations may also enjoy protection for a deferred transmission made in such a way that members of the public may access it from a place and at the time individually chosen by them.

This answers to countries asking that on-demand services be covered by the treaty, which is not agreeable to other countries. According to a source, some countries consider that once the signal is fixed, in order to be retransmitted, that changes the intellectual property rights involved in the first transmission.

New language has also been introduced regarding limitations and exceptions. A new paragraph (3) states that “it is presumed that the following, inter alia, constitute special cases which do not conflict with the normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of the right holder,” such as private use, the use of excerpts in connection with the reporting of current events, use solely for the purposes of teaching or scientific research, the use by libraries, archives or educational institutions, to make publicly accessible broadcast protected by any exclusive rights of the broadcasting organisation, for purposes of preservation, education and/or research.

Yesterday, several delegations said they needed more time to consider the text and decide on the way forward. They are expected to revisit the broadcasting issue before the end of the week. Delegates have now started discussing the topic of limitations and exceptions to copyright in favour of libraries and archives.

 

Image Credits: WIPO