[A2k] IP-Watch: NGOs Offer Views For WIPO Members Creating IP Rights Treaty For Broadcasters

Thiru Balasubramaniam thiru at keionline.org
Wed Dec 10 08:36:57 PST 2014


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

10/12/2014 BY CATHERINE SAEZ <http://www.ip-watch.org/author/catherine/>,

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

Negotiations have been based on a draft text
<http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf> [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

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
<http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_6.pdf> [pdf]
submitted by several countries in May (Armenia, Azerbaijan, Belarus,
Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Turkmenistan, Ukraine and

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

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

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.”

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