[A2k] Xcasters Treaty Rising Again . . .

Seth Johnson seth.p.johnson at gmail.com
Sun Jun 24 08:22:27 PDT 2012


Hello all:

I certainly don't track the discussion among the treaty-makers, but
here we see the xcaster's treaty rearing its head again with a
proposal from Japan apparently intended to narrow the alternative
approaches to various provisions down.  If you on A2K already have
this, my apologies . . .

See some comments by me below.

> http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=207943
>
>
> Document Code SCCR/24/3 Meeting Code SCCR/24
> Publication Date Jun 14, 2012
>
> Renewal Version of Revised Draft Basic Proposal for the WIPO Treaty on
> the Protection of Broadcasting Organizations (SCCR/15/2 Rev.)





Below I've ripped the text from the pdf, and removed the explanatory
comments, so this is chiefly the text of the treaty as Japan proposes.

First a Quick Overview:

It has the following exclusive rights, some of which have alternative proposals:

 6 - Right of Retransmission
 7 - Right of Communication to the Public
 8 - Right of Fixation
 9 - Right of Reproduction
10 - Right of Distribution
11 - Right of Transmission Following Fixation
12 - Right of Making Available of Fixed Broadcasts

They're saying they're emulating the Phonograms Treaty.

It has two alternatives for term of protection: 20 years or 50 years.

It allows for limitations and exceptions.  It excludes formalities.

It appears to my untrained eye that the main contention is over
whether re/transmissions include computer networks.

It allows signatories to make reservations regarding all these rights
except retransmission and fixation.  They can also make reservations
regarding beneficiaries.

Retransmissions are defined as simultaneous, not delayed
retransmissions after a fixation.  Broadcasts are defined as wireless,
cablecasts as by wire, and both are defined as excluding computer
networks.

They have two proposals for the right of retransmission: 1) by any
means including computer networks, or 2) by broadcast/cablecast,
excluding computer networks, but providing for a right of making
available to the public by wire or wireless.

They have two proposals for the right of transmission following
fixation: 1) provide a right of authorizing transmission after
fixation by any means, with an option to instead prohibit
transmissions from unauthorized fixations without consent; or 2)
provide a right of authorizing transmission after fixation, by
broadcast/cablecast, for reception by the public, excluding over
computer networks, with an option to instead prohibit transmissions by
broadcast/cablecast from unauthorized fixations without consent

They have two proposals for limitations and exceptions: 1) signatories
may provide the same limitations and exceptions they do in national
law for copyright in literary and artistic works and related rights,
but these must be confined to special cases that don't conflict with
normal exploitation of broadcasts and that don't prejudice xcasters'
legitimate interests; or 2) they may make exceptions from a specific
enumerated list, including private use, short excerpts for current
events, ephemeral fixation, and teaching or scientific research,
plusprovide the same limitations and exceptions they do in national
law for copyright in literary and artistic works and related rights.

It also says signatories must have an anticircumvention regime and
disallow the removal of rights management information.


Seth


SCCR/24/3

DATE:  JUNE 7, 2012

Standing Committee on Copyright and Related Rights
Twenty-fourth Session
Geneva, July 16 to 25, 2012

RENEWAL VERSION OF REVISED DRAFT BASIC PROPOSAL FOR THE WIPO TREATY ON
THE PROTECTION OF BROADCASTING ORGANIZATIONS

(SCCR/15/2rev)

proposal by the delegation of Japan



INTRODUCTORY NOTE OF NEW DRAFT PROPOSAL

This New Draft Proposal on Protection of Broadcasting Organizations
basically follows and
narrows down the alternatives in SCCR/15/2.

The main purpose of this draft proposal is to show the text which has
flexibility and to move
forward the discussion for the adoption of the new treaty, and not all
provisions in this poroposal
necessarily reflects the Japan’s position. Therefore, the Government
of Japan reserves the
right to make amendments or further proposals basedon subsequent
international or domestic
discussions.

After SCCR/S2 on June 2007, we have been discussingupdating Protection
of Broadcasting
Organizations for almost five years at SCCR. Although there are many
alternatives in
SCCR/15/2, now we believe we could narrow down the alternatives in
SCCR /15/2 based on the
past discussions at SCCR.

For establishment of new treaty, we have to finalize the object,
objective and scope of protection
in accordance with the mandate of 2007 General Assembly. As to the
objective, no one would
deny it is the establishment of the protection against piracy of
signals transmitted by
broadcasting and cablecasting in traditional sense.Furthermore, we
have almost reached the
consensus that the objective is the signal transmitted by broadcasting
and cablecasting in
traditional sense. Only the scope has some differences of opinion and
is left unfinished on the
floor.

Fortunately, we have a proposal by South Africa andMexico (SCCR/23/6)
for the base of our
discussion. However, scope of application of SCCR/23/6 is different
from that of SCCR/15/2. It
would be our great pleasure if narrowed down version of SCCR/15/2
would contribute to
promote our discussions by comparing these two proposals.

Therefore, here we propose New Draft Proposal on Protection of
Broadcasting Organizations,
which is a narrowed down version of alternatives inSCCR/15/2, as a
base of discussions. We
have flexibility and are welcome to accept other alternatives
following the discussions among
Member States at future SCCR. We hope this would be useful for
promotion of our discussion
and early establishment of new broadcasters’ treaty.

Preamble

The Contracting Parties,

Desiring to develop and maintain the protection of the rights of
broadcasting organizations in a
manner as effective and uniform as possible,

Recognizing the need to introduce new international rules in order to
provide adequate
solutions to the questions raised by economic, social, cultural and
technological developments,

Recognizing the profound impact of the development and convergence of
information and
communication technologies which have given rise toincreasing
possibilities and opportunities
for unauthorized use of broadcasts both within and across borders,

Recognizing the need to maintain a balance between the rights of
broadcasting organizations
and the larger public interest, particularly education, research and
access to information, and
the importance of cultural diversity,

Recognizing the objective to establish an international system of
protection of broadcasting
organizations without compromising the rights of holders of copyright
and related rights in works
and other protected subject matter carried by broadcasts, as well as
the need for broadcasting
organizations to acknowledge these rights,

Stressing the benefits to authors, performers and producers of
phonograms of effective and
uniform protection against illegal use of broadcasts

Have agreed as follows:

Article 1

Relation to Other Conventions and Treaties

(1) Nothing in this Treaty shall derogate from existing obligations
that Contracting Parties
have to each other under any other copyright and related rights treaties.

(2) Protection granted under this Treaty shall leave intact and shall
in no way affect the
protection of copyright or related rights in program material
incorporated in broadcasts.
Consequently, no provision of this Treaty may be interpreted as
prejudicing such protection.

(3) This Treaty shall not have any connection with,nor shall it
prejudice any rights and
obligations under, any other treaties.

Article 2

Definitions

For the purposes of this Treaty,

(a) “broadcasting” means the transmission by wireless means for the
reception by the public
of sounds or of images or of images and sounds or of the
representations thereof; such
transmission by satellite is also “broadcasting”.  Wireless
transmission of encrypted signals is
“broadcasting” where the means for decrypting are provided to the
public by the broadcasting
organization or with its consent. “Broadcasting” shall not be
understood as including
transmissions over computer networks;

(b) “cablecasting” means the transmission by wire for the reception by
the public of sounds or
of images or of images and sounds or of the representations thereof.
Transmission by wire of
encrypted signals is “cablecasting” where the meansfor decrypting are
provided to the public by
the cablecasting organization or with its consent. “Cablecasting”
shall not be understood as
including transmissions over computer networks;

(c) “broadcasting organization” and “cablecasting organization” mean
the legal entity that
takes the initiative and has the responsibility forthe transmission to
the public of sounds or of
images or of images and sounds or of the representations thereof, and
the assembly and
scheduling of the content of the transmission;

(d) “retransmission” means the simultaneous transmission for the
reception by the public by
any means of a transmission referred to in provisions (a) or (b) of
this Article by any other
person than the original broadcasting or cablecasting organization;
simultaneous transmission
of a retransmission shall be understood as well to be a retransmission;

(e) “communication to the public” means making the transmissions
referred to in provisions
(a), (b) or (d) of this Article audible or visible,or audible and
visible, in places accessible to the
public;

(f) “fixation” means the embodiment of sounds or ofimages or of images
and sounds or of
the representations thereof, from which they can beperceived,
reproduced or communicated
through a device.

Article 3

Scope of Application

(1) The protection granted under this Treaty extends only to signals
used for the
transmissions by the beneficiaries of the protection of this Treaty,
and not to works and other
protected subject matter carried by such signals.

(2) The provisions of this Treaty shall apply to the protection of
broadcasting organizations in
respect of their broadcasts.

(3) The provisions of this Treaty shall apply mutatis mutandisto the
protection of cablecasting
organizations in respect of their cablecasts.

(4) The provisions of this Treaty shall not provideany protection in
respect of:

(i) mere retransmissions by any means of transmissions referred to in
Article 2(a), (b)
and(d);

(ii) any transmissions where the time of the transmission and the
place of its reception
may be individually chosen by members of the public.

Article 4

Beneficiaries of Protection

(1) Contracting Parties shall accord the protectionprovided under this
Treaty to broadcasting
organizations that are nationals of other Contracting Parties.

(2) Nationals of other Contracting Parties shall beunderstood to be
those broadcasting
organizations that meet either of the following conditions:

(i) the headquarters of the broadcasting organization is situated in
another Contracting
Party, or

(ii) the broadcasts are transmitted from a transmitter situated in
another Contracting
Party. In the case of satellite broadcasts, the relevant place shall
be the point at which,
under the control and responsibility of the broadcasting organization,
the program-carrying
signals intended for direct reception by the publicare introduced into
an uninterrupted
chain of communication leading to the satellite anddown towards the earth.

(3) By means of a notification deposited with the Director General of
the World Intellectual
Property Organization (WIPO), any Contracting Partymay declare that it
will protect broadcasts
only if the headquarters of the broadcasting organization is situated
in another Contracting
Party and the broadcasts are transmitted from a transmitter situated
in the same Contracting
Party. Such notification may be deposited at the time of ratification,
acceptance or accession,
or at any time thereafter; in the last case, it shall become effective
six months after it has been
deposited.

Article 5

National Treatment

(1) Each Contracting Party shall accord to the national broadcasting
organizations of other
Contracting Parties treatment no less favorable than it accords to its
own broadcasting
organizations in respect of the application of the rights recognized
expressly under this Treaty.

(2) The obligation provided for in Paragraph (1) does not apply to the
extent that another
Contracting Party makes use of the provisions in Article7(3), Article
9(2), Article10(3),
Article 11(2), and Article 12 (2) of this Treaty.

Article 6

Right of Retransmission

Alternative 6.1

Broadcasting organizations shall enjoy the exclusive right of
authorizing the retransmission of
their broadcasts by any means, including rebroadcasting,
retransmission by wire, and
retransmission over computer networks.

Alternative 6.2

Broadcasting organizations shall enjoy the exclusive right of
authorizing the retransmission of
their broadcast by broadcasting or cablecasting excluding over
computer networks, and the
right of making available of their broadcasts to the public, by wire
or wireless means, in such a
way that members of the public may access them from a place and at a
time individually chosen
by them.

Article 7

Right of Communication to the Public

(1) Broadcasting organizations shall enjoy the exclusive right of
authorizing the
communication to the public of their broadcasts, ifsuch communication
is made in places
accessible to the public against payment of an entrance fee.

(2) It shall be a matter for the domestic law of the Contracting Party
where protection of the
provision of paragraph (1) is claimed to determine the conditions
under which it may be
exercised.

(3) Any Contracting Party may, in a notification deposited with the
Director General of WIPO,
declare that it will apply the provisions of paragraph (1) only in
respect of certain
communications, or that it will limit their application in some other
way, or that it will not apply
these provisions at all. If a Contracting Party makes such a
declaration, the other Contracting
Parties shall not be obliged to grant the right referred to in
paragraph (1) to broadcasting
organizations whose headquarters are in that Contracting Party.

Article 8

Right of Fixation

Broadcasting organizations shall enjoy the exclusive right of
authorizing the making fixation of
their broadcasts.

Article 9

Right of Reproduction

(1) Broadcasting organizations shall enjoy the exclusive right of
authorizing the direct or
indirect reproduction, in any manner or form, of fixations of their broadcasts.

(2) Any Contracting Party may, in a notification deposited with the
Director General of WIPO,
declare that it will establish for the broadcastingorganizations,
instead of the exclusive right of
authorizing provided for in paragraph (1), the following rights:

(i) broadcasting organizations shall enjoy the exclusive right of
authorizing the
reproduction of their broadcasts from fixations made pursuant to
Article 14 when such
reproduction would not be permitted by that Articleor otherwise made
without their
authorization, and

(ii) reproduction, without the consent of the broadcasting
organizations, of fixations of
their broadcasts other than those referred to in subparagraph (i)
shall be prohibited.

Article 10

Right of Distribution

(1) Broadcasting organizations shall enjoy the exclusive right of
authorizing the making
available to the public of the original and copies of fixations of
their broadcasts, through sale or
other transfer of ownership.

(2) Nothing in this Treaty shall affect the freedomof Contracting
Parties to determine the
conditions, if any, under which the exhaustion of the right in
paragraph (1) applies after the first
sale or other transfer of ownership of the originalor a copy of the
fixation of the broadcast with
the authorization of the broadcasting organization.

(3) Any Contracting Party may, in a notification deposited with the
Director General of WIPO,
declare that it will establish protection for the broadcasting
organizations, instead of the
exclusive right of authorizing provided for in paragraph (1), by
providing that the distribution to
the public and importation, without the consent of the broadcasting
organizations, of
reproductions of unauthorized fixations of their broadcasts, shall be
prohibited.

Article 11

Right of Transmission Following Fixation

Alternative 11.1

(1) Broadcasting organizations shall enjoy the exclusive right of
authorizing the transmission
by any means for the reception by the public of their broadcasts
following fixation of such
broadcasts.

(2) Any Contracting Party may, in a notification deposited with the
Director General of WIPO,
declare that it will establish protection for the broadcasting
organizations, instead of the
exclusive right of authorizing provided for in paragraph (1), by
providing that the transmission,
without the consent of the broadcasting organizations, of their
broadcasts from unauthorized
fixations of their broadcasts shall be prohibited.

Alternative 11.2

(1) Broadcasting organizations shall enjoy the exclusive right of
authorizing the transmission
by broadcasting or cablecasting, excluding over computer networks for
the reception by the
public of their broadcasts following fixation of such broadcasts.

(2) Any Contracting Party may, in a notification deposited with the
Director General of WIPO,
declare that it will establish protection for the broadcasting
organizations, instead of the
exclusive right of authorizing provided for in paragraph (1), by
providing that broadcasting or
cablecasting, without the consent of the broadcasting organizations,
of their broadcasts from
unauthorized fixations of their broadcasts, shall be prohibited.

Article 12

Right of Making Available of Fixed Broadcasts

(1) Broadcasting organizations shall enjoy the exclusive right of
authorizing the making
available to the public of their broadcasts from fixations, by wire or
wireless means, in such a
way that members of the public may access them froma place and at a
time individually chosen
by them.

(2) Any Contracting Party may, in a notification deposited with the
Director General of WIPO,
declare that it will establish protection for the broadcasting
organizations, instead of the
exclusive right of authorizing provided for in paragraph (1), by
providing that the making
available to the public, without the consent of the broadcasting
organizations, of their
broadcasts from unauthorized fixations, by wire or wireless means, in
such a way that members
of the public may access them from a place and at atime individually
chosen by them, shall be
prohibited.

Article 13

Protection in Relation to Signals Prior to Broadcasting

Alternative 13.1

Broadcasting organizations shall enjoy adequate and effective legal
protection against any acts
referred to in Article 6 to 12 of this Treaty in relation to their
signals prior to broadcasting.

Alternative 13.2

Contracting Parties shall provide adequate and effective legal
protection in relation to their
signals prior to broadcasting. The means of the protection granted by
this Article shall be
governed by the legislation of the country where protection is claimed.

Article 14

Limitations and Exceptions

Alternative 14.1

(1) Contracting Parties may, in their national legislation, provide
for the same kinds of
limitations or exceptions with regard to the protection of
broadcasting organizations as they
provide for, in their national legislation, in connection with the
protection of copyright in literary
and artistic works, and the protection of related rights.

(2) Contracting Parties shall confine any limitations of or exceptions
to rights provided for in
this Treaty to certain special cases which do not conflict with a
normal exploitation of the
broadcast and do not unreasonably prejudice the legitimate interests
of the broadcasting
organization.

Alternative 14.2

(1) Any Contracting Party may, in its domestic laws and regulations,
provide for exceptions to
the protection guaranteed by this Treaty:

(a) private use;

(b) use of short excerpts in connection with the reporting of current events;

(c) ephemeral fixation by a broadcasting organization by means of its
own facilities and
for its own broadcasts;

(d) use solely for the purposes of teaching or scientific research;

(2) Irrespective of paragraph 1 of this article, any Contracting Party
may, in its domestic laws
and regulations, provide for the same kinds of limitations or
exceptions with regard to the
protection of broadcasting organizations, as it provides, for in its
domestic laws and regulations,
in connection with the protection of copyright in literary and artistic works.

Article 15

Term of Protection

Alternative 15.1

The term of protection to be granted to broadcasting organizations
under this Treaty shall last,
at least, until the end of a period of 50 years computed from the end
of the year in which the
broadcast took place.

Alternative 15.2

The term of protection to be granted to broadcasting organizations
under this Treaty shall last,
at least, until the end of a period of 20 years computed from the end
of the year in which the
broadcast took place.

Article16

Obligations Concerning Technological Measures

(1) Contracting Parties shall provide adequate legal protection and
effective legal remedies
against the circumvention of effective technological measures that are
used by broadcasting
organizations in connection with the exercise of their rights under
this Treaty and that restrict
acts, in respect of their broadcasts, that are not authorized by the
broadcasting organizations
concerned or are not permitted by law.

Article 17

Obligations Concerning Rights Management Information

(1) Contracting Parties shall provide adequate and effective legal
remedies against any
person knowingly performing any of the following acts knowing, or with
respect to civil remedies
having reasonable grounds to know, that it will induce, enable,
facilitate or conceal an
infringement of any right covered by this Treaty:

(i) to remove or alter any electronic rights management information
without authority;

(ii) to distribute or import for distribution fixations of broadcasts,
to retransmit or
communicate to the public broadcasts, or to transmit or make available
to the public fixed
broadcasts, without authority, knowing that electronic rights
management information has
been without authority removed from or altered in the broadcast or the
signal prior to
broadcast.

(2) As used in this Article, “rights management information” means
information which
identifies the broadcasting organization, the broadcast, the owner of
any right in the broadcast,
or information about the terms and conditions of use of the broadcast,
and any numbers or
codes that represent such information, when any of these items of
information is attached to or
associated with (1) the broadcast or the signal prior to broadcast,
(2) the retransmission,

(3) transmission following fixation of the broadcast, (4) the making
available of a fixed
broadcast, or (5) a copy of a fixed broadcast.

Article 18

Formalities

The enjoyment and exercise of the rights provided for in this Treaty
shall not be subject to any
formality.

Article 19

Reservations

Reservations to this Treaty shall be permitted only according to the
provisions of Articles
4(3), 7(3), 9(2), 10(3), 11(2) and 12(2).

Article 20

Application in Time

Alternative 20.1

(1) Contracting Parties shall apply the provisions of Article 18 of
the Berne Convention,
mutatis mutandis, to the rights of broadcasting organizations provided
for in this Treaty.

(2) The protection provided for in this Treaty shall be without
prejudice to any acts
committed, agreements concluded or rights acquired before the entry
into force of this Treaty
for each Contracting Party.

Alternative 20.2

(1) Contracting Parties shall accord the protection granted under this
Treaty to fixed
broadcast that exists at the moment of the entry into force of this
Treaty and to all broadcastings
that occur after the entry into force of this Treaty for each
Contracting Party.
SCCR/24/3

(2) Notwithstanding the provisions of paragraph (1), a Contracting
Party may declare in a
notification deposited with the Director General ofWIPO that it will
not apply the provisions of
Articles 6 to 12 of this Treaty, or any one or more of those, to fixed
broadcasts that existed at
the moment of the entry into force of this Treaty for each Contracting
Party. In respect of such
Contracting Party, other Contracting Parties may limit the application
of the said Articles to
broadcasting that occurred after the entry into force of this Treaty
for that Contracting Party.

Article 21

Provisions on Enforcement of Rights

(1) Contracting Parties undertake to adopt, in accordance with their
legal systems, the
measures necessary to ensure the application of this Treaty.

(2) Contracting Parties shall ensure that enforcement procedures are
available under their law
so as to permit effective action against any act ofinfringement of
rights or violation of any
prohibition covered by this Treaty, including expeditious remedies to
prevent infringements and
remedies which constitute a deterrent to further infringements.

ADMINISTRATIVE AND FINAL CLAUSES

Unchanged (SCCR/15/2):

Article 22 – Assembly
Article 23 – International Bureau
Article 24 – Eligibility for Becoming Party to the Treaty
Article 25 – Rights and Obligations Under the Treaty
Article 26 – Signature of the Treaty
Article 27 – Entry into Force of the Treaty
Article 28 – Effective Date of Becoming Party to the Treaty
Article 29 – Denunciation of the Treaty
Article 30 – Languages of the Treaty
Article 31 – Depositary




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