[A2k] TWN Info: Work resumes on treaty to protect broadcasting organisations

Sangeeta Shashikant sangeeta at twnetwork.org
Fri May 2 01:00:15 PDT 2014

TWN Info Service on Intellectual Property Issues (May14/01)
	2 May 2014
	Third World Network
	www.twn.my <http://www.twn.my>
	WIPO: Work resumes on treaty to protect broadcasting organisations
	Published in SUNS #7794 dated 30 April 2014
	Geneva, 29 Apr (Alexandra Bhattacharya) -- Member States of the World
Intellectual Property Organisation (WIPO) resumed textual discussions on a
treaty to protect the rights of broadcasting organisations.
	The 27th session of the Standing Committee on Copyright and Related
Rights (SCCR) is taking place in Geneva from 28 April to 2 May. This
potential treaty has been on the agenda of the WIPO committee since 1998.
	[The 26th session of the SCCR, after intensive discussion, decided that
during the current session two and one-half days would be devoted to the
Protection of Broadcasting Organisations; and two days for the discussion
on Limitations and Exceptions for libraries and archives, for educational
and research institutions and for persons with other disabilities.]
	Textual discussion was based on the Working Document for a Treaty on the
Protection of Broadcasting Organisations (SCCR/27/2 REV). The document is
available here: 
	According to WIPO, "International rules to protect television broadcasts
from piracy have not been updated since the 1961 Rome treaty (on the
Protection of Performers, Producers of Phonograms and Broadcasting
Organisations), drafted at a time when cable was in its infancy and the
Internet not even invented."
	In 2007, WIPO's General Assembly agreed to pursue a "signal-based
approach" to drafting a new treaty, to ensure that provisions on signal
theft in themselves did not give broadcasters additional rights over
program content. But this still left many of the underlying differences of
view in place.
	The key issues on the table include the scope of application of the
potential treaty particularly with respect to whether it should be
confined to traditional broadcasting (including cablecasting) or whether
it should include transmission over the Internet. Another important issue
relates to the scope of rights or protection and particularly whether
post-fixation rights should be included.
	The conclusions reached at the end of the discussions on the broadcasting
treaty revealed that there was agreement that broadcasting and
cablecasting organisations in the traditional sense would be the
beneficiaries of the protection provided by the proposed treaty, subject
to clarification of the inclusion of cablecasting organisations in the
definition of broadcasting organisations in nationals laws.
	Similarly, it was also understood that broadcasting and cablecasting
would be included in the scope of protection on a signal-based approach,
subject to the clarification of the inclusion of cablecasting
organisations in the definition of broadcasting organisations in national
laws and of the effect of that inclusion on the scope of application.
	However, at the heart of the remaining issues was whether the scope of
protection should extend to transmissions over the internet and to what
	The issue of transmission over the internet is linked to whether the work
undertaken was within the mandate of the 2007 General Assembly (GA)
Decision which had confirmed the 2006 GA decision which stipulated that
"The scope of the Treaty will be confined to the protection of
broadcasting and cablecasting organisations in the traditional sense," but
also asked that the convening of a diplomatic conference only be
considered "after agreement on objectives, specific scope and object of
protection has been achieved."
	At the start of the session, Brazil, on behalf of the Development Agenda
Group (DAG), proposed the addition of an agenda item "The Contribution of
the SCCR to the implementation of the respective DA (Development Agenda)
Recommendations", which was consistent with the "best practice of the
	Japan, on behalf of Group B (developed countries), stated that there
would be another SCCR session in June prior to the convening of the WIPO
General Assembly in September, and in this context queried if the DAG
wanted to propose this agenda item for that session.
	Brazil said that it would take the issue back to the Group (DAG) and
inform the SCCR of its decision.
	Kenya, on behalf of the African Group, stated that with respect to the
agenda item on the protection of broadcasting organisations, the
discussion should continue on the basis of the working document (SCCR/27/2
Rev). It noted that various proposals and alternatives regarding the
definition of signal were the critical element in the proposed Treaty.
	With respect to the exceptions and limitations as they related to
libraries and archives, the African Group noted that this discussion was
critical in achieving a balance in the international copyright system.
Libraries and archives performed a critical function in providing
information which was essential for the advancement of knowledge and
culture in society, it added.
	The African Group also noted that a legally binding instrument on this
issue was therefore necessary as it provided an opportunity for libraries
and archives to carry out their work in an increasingly globalised and
digital environment. In this regard, the Group requested that the textual
suggestions in the working document (SCCR/27/REF/SCCR/26/3) be separated
as this would accelerate discussions in order for the SCCR28 to make a
recommendation to the General Assembly.
	On the agenda item in relation to limitations and exceptions for
education and research institutions and persons with other disabilities,
the African Group noted that limitations and exceptions were important for
all Member States, as education and research continued to play a key role
in all societies and in meeting many problems and challenges.
	Belarus, on behalf of the regional group of Central Asian caucuses and
certain Eastern European countries, expressed support for the work
currently being undertaken in the SCCR, noting that "This work took
account of the real interest that exists in specific areas and we think
this is of great value to all countries not in our region but indeed
throughout the world".
	It noted that for the Group, the issue of protection for broadcasting
organisations was of high priority and expressed concern about the rate of
progress thus far.
	Japan, on behalf of Group B, welcomed the efforts by Member States during
the last session of the SCCR to advance the mutual understanding with
respect of the protection of broadcasting organisations. It stated that it
expected that the increased focused would be on the text-based discussion
towards developing an international Treaty for the protection of
broadcasting and cablecasting organisations in the traditional sense,
"maintaining the momentum for consensus we have created so far".
	Regarding the exceptions and limitations for libraries and archives and
education and research institutions, it was "ready to exchange our
experiences" and work within "the existing framework of international
treaties and Conventions which already enable these institutions to
fulfill their roles both in the analog and digital world."
	Uruguay, on behalf of GRULAC (Group of Latin American and Caribbean
countries), reiterated that according to the work program adopted by the
GA in 2012, the SCCR should continue its work on international instruments
for limitations and exceptions.
	The Czech Republic, on behalf of CEBS (Group of Central Europe and Baltic
States), underlined that the broadcast treaty was the main priority for
the Group and that the issue had to be discussed in the context of the
technological developments of the 21st century. It also called on the SCCR
to discuss issues related to licensing in the digital era.
	CEBS stated that the discussion on a potential broadcasting treaty should
take into account "today's and tomorrow's business models" and "online
transmission must be reflected." It stated that "we should avoid a treaty
which is outdated upon entry into force".
	The Republic of Korea, on behalf of the Asia-Pacific Group, reaffirmed
its commitment to a signal-based approach in the development of a
broadcasting treaty as per the 2007 WIPO GA mandate. It called for
"meaningful technical consultations" to settle outstanding issues.
	It also called for effective solutions for the development of an
inclusive framework for libraries and archives, research and education
institutions and for persons with other disabilities.
	The European Union said it was ready to explore various "possible
compromise options" with respect to the protection of broadcasting
organisations. It stated that in order to achieve a treaty, broad
consensus needs to be built as to the problems that needed addressing and
the scope of protection.
	With respect to the issue of exceptions and limitations, the EU stated
that the current international copyright framework was adequate both for
the analogue and digital age. Hence, it reiterated its view that there was
no need for further rule-making at the international level. It was of the
opinion that the exchange of best practices and experiences was the best
way forward.
	The EU informed the Committee that it would be signing the Marrakech
Treaty to Facilitate Access to Published Works for Persons Who Are Blind,
Visually Impaired on 30 April.
	(India is also expected to sign the Marrakech Treaty during SCCR/27.)
	The SCCR then moved to a substantive discussion on the agenda item on the
Protection of Broadcasting Organisations.
	For the current SCCR, the UK tabled a proposal (SCCR/27/3) "to shed light
on a number of different technologies already being used by broadcasters
from around the world".
	It proposed that the BBC, a public service broadcaster (which is
independent of the UK government), be invited to attend the 27th SCCR to
give a presentation to the plenary session on these services which would
"enable delegates to learn more about the types of advanced technology
being used by broadcasters around the globe."
	In this context, the SCCR was presented with an overview by Mr. Neil
Memmott, BBC Head of TV and Mobile Platforms, on the BBC's red button, red
button connect and iPlayer features, which allow advanced features such as
internet-delivered services and on-demand video services.
	In response to a question from El Salvador, Mr. Memmott said that the
BBC's content is protected "loosely" and as it is a free-to-air
broadcaster in the UK. However, its internet content was protected from
access overseas. He added that the BBC made its own content and also
worked with other third parties.
	A number of delegations noted that although the presentation was useful
from a technical perspective, a number of legal questions posed remained
	The presentation by the BBC provided impetus for the SCCR to deal with
the key issue of the Scope of Application of the proposed treaty (as found
in the Working Document SCCR/27/2 Rev.), where divergent views remain.
Member States expressed their national positions with no evident regional
	(The conclusions of the 26th SCCR showed that the key remaining issue
with respect to scope related to the inclusion, in the scope of
application, of transmissions over the Internet and if this protection
should be mandatory or optional.)
	There was also a discussion as to which categories of transmission over
the internet should be included: (i) simultaneous and unchanged
transmission of broadcasting program (simulcasting): (ii) transmission of
original program (webcasting), (iii) on-demand transmission of
broadcasting program or original program: (iv) deferred and unchanged
transmission of broadcasting program.
	The discussion during the first day of the 27th SCCR27 was particularly
focused on differentiating and further elucidating the different concepts
related to transmissions over the internet.
	A number of delegations (India, Brazil) emphasised that any protection
afforded to broadcasting organisations should not impact the intellectual
property rights of content holders. Additionally, Ecuador also noted the
need to take into account the effect on the end users from the creation of
the rights of broadcasting organisations.
	South Africa noted that it was not always easy to differentiate between
the type of signal being pirated and in this context it was necessary to
pursue a "technology neutral approach" especially since "the issue of
technology was a moving target".
	The European Union, in a detailed intervention, stated that the focus on
"traditional" broadcasting and cable- casting was a limitation and there
was a need to look for protection which responded to how broadcasters and
cable-casters operated in reality. It added that protection for
simultaneous and unchanged transmission should be the minimum.
	It added that there is need to further look into providing protection for
on-demand transmission which is "becoming more and more popular" and to
realise that there were different on-demand transmissions, especially with
regard to the link to the traditional broadcast or the newer broadcast.
	The United States said there was a need to understand the facts of
broadcasting to further the discussion. In this context, it was important
to reach consensus with regard to the difference of demand transmission of
broadcasting program or original program from deferred and unchanged
transmission of broadcasting program.
	Argentina stated that the scope of protection should include broadcasting
transmissions and media made through any medium process by broadcasting
organisations traditionally recognised; in other words, radio, companies,
open TV companies, cable companies, and excluding the webcasting entities.
	Brazil posed an important question to the committee, querying why there
was still a need for additional protection for broadcasts if the content
was already protected by copyright. It questioned: "How would the
protection granted to a transmission over the Internet when not
simultaneous and unchanged differ from the protection granted by copyright
to the content itself?" It added that this question was at the centre of
the debate.
	India also questioned whether the discussion was regarding the scope of
signal-based broadcast in the traditional sense or if it had exceeded the
mandate given by the WIPO General Assembly in 2007.
	The United States said that it agreed that there was a need to be working
within the scope of the General Assembly's mandate; however, it was a
question of interpreting the mandate and there was a need to achieve
greater clarification on specific concepts.
	The EU stated that the discussion was regarding the right of broadcasting
organisations in protecting their own signals and was not meant to broaden
their rights with respect to content creators. It added that even if
broadcasting organisations can only broadcast by traditional means, they
should be able to stop somebody intercepting this signal and showing it
over the Internet.
	The Chair urged the Committee to think about a matrix of different
platforms with respect to transmission over the internet in order to
determine consensus areas.
	The SCCR will continue discussion on the protection of broadcasting
organisations for the next day and half. It is expected that during the
afternoon of the third day (30 April), the SCCR will consider the issue of
limitations and exceptions. +

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