[A2k] PK Intervention(s)

John Bergmayer john at publicknowledge.org
Tue Nov 29 03:35:36 PST 2011

Public Knowledge presented the following intervention today during the plenary discussion on the BT:

"Thank you Mr. Chair. We appreciate the effort by member states, particularly Mexico, South Africa, and India, to constructively engage on this issue.  However, we are still concerned that the text prepared by South Africa and Mexico contains language which could be construed as granting copyright-like rights to broadcasters, and does not focus narrowly enough on granting broadcasters protection against the misappropriation of their signals, in line the the General Assembly mandate.  Preambular language is not enough to ensure this focus, when substantive language moves in another direction. In particular, Alternative A of Article 6 grants a bundle of rights to broadcasters that are unnecessary for a signal-based approach, such as fixation, and Alternative B grants broadcasters rights over public performances.  Many of these rights seem aimed at providing broadcasters means to prevent content piracy.  But it would be better, instead, to look to solutions that enable copyright holders to address the infringement of copyrighted works.  Despite preambular language to the contrary, granting new content-related rights to broadcasters could interfere with the rights of copyright holders as well as frustrating the needs of consumers."

Also, we made a few interventions during the Saturday informal session.  This was our first one:

"Thank you.  We would like to thank the delegations of the United States and India for their view that the object of protection should be the signals of broadcasters, and these discussions should be not be closely linked the Rome Convention.

We are not convinced that an instrument is needed, because the harms that have been identified in the record are generally harms to copyright holders and not to intermediaries like broadcasters.  That said, we are interested in engaging on these issues and we think that the best way forward is to limit the scope of consideration to the wholesale unauthorized retransmission of broadcast signals, rather than to the infringement of individual programs or works. For that reason we object to language that suggests that the object of protection is "works" or "programs," as this seems to go beyond a signal-based approach.

We note that there is a distinction between allowing broadcasters to enforce the copyrights of works they have licensed, which is a procedural issue that does not create new rights, and granting them new rights in and of themselves.  

In short, if there is an interest in protecting broadcasters in a specific instrument, they should be protected in their role as broadcasters and not granted new rights in programs, works, or content."

John Bergmayer
Senior Staff Attorney
Public Knowledge
(202) 861-0020

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