[A2k] NGO Objections to the Proposed WIPO Broadcasting Treaty

Thiru Balasubramaniam thiru at keionline.org
Wed Oct 23 06:35:49 PDT 2019

https://www.keionline.org/31905NGO Objections to the Proposed WIPO
Broadcasting Treaty
Posted on October 23, 2019 by James Love


23 October 2019

Re: Objections to the Proposed WIPO Broadcasting Treaty

Dear delegates to SCCR 39,

We oppose the Chair’s proposal for a broadcast treaty.

The proposal would give broadcasters effectively perpetual rights over
content that they do not create, own or license, including works where
there is no underlying copyright or where the copyright holders have not
been paid and/or license their works for use by the public at no cost, such
as under Creative Commons licenses.

The SCCR work on broadcasting is clearly deeply uninformed as to the
dramatic rise of new Internet streaming technologies that feature
encryption, require payments from users, and for which the most important
are controlled by very large multinational technology companies, such as
Google’s YouTube TV platform, Netflix, Spotify, and Amazon Prime rather
than locally owned broadcast entities.

In the agreed statement on equivalent deferred transmissions and other
deferred transmissions (footnote 2), Chair Daren Tang’s treaty text
(SCCR/39/4)/1/ proposes that the scope of application includes new
beneficiaries such as on-demand and catch up services, parallel sport
events, extra footage on news or programs, additional interviews,
behind-the-scenes programs, pure on-demand streaming channels, and
on-demand catalogues.

While some negotiators see the WIPO Broadcasting Treaty as a treaty that
will benefit local broadcasters, that is likely to be true only in the
short term. And even in the short term, the more ambitious versions of the
treaty are also designed to create economic rights for large foreign
corporations that “schedule the content” for cable and satellite channels,
such as Disney, Vivendi, and AT&T.

In the longer run, the treaty would create a new legal regime that will
establish rights for giant technology firms largely based in the United
States or Europe, that are creating global platforms for video and sound
recording content, including Amazon Prime, Netflix, Hulu, YouTube,
Google/YouTube TV, Hulu TV, Yahoo, Twitter, Sling TV, Facebook, Spotify,
Apple Music, Google Play Music, and Pandora, all companies that could
qualify as broadcasters by owning a single broadcast station. The
predictable outcome of any new intellectual property rights for
broadcasting that includes transmissions, delivered at the time and
choosing of the user, would be to give these companies intellectual
property rights in someone else’s creative works.

In relation to the term of protection, the October 2019 (SCCR/39/4) Tang
text proposes options for a 50, 20, or “x” term of protection for the
rights. Clearly, this implies the broadcasters will obtain post fixation
rights in works they did not create nor license. A 50 year term of
protection or even a 20 year term of protection makes a mockery of the
notion that this is a signal based treaty or is only concerned with signal
piracy, as it effectively extends the protection beyond the term of
copyright. Furthermore, it seems to be a recipe for disaster as regards
orphan works at a time when individual countries are in the process of
trying to solve the orphan works problem. To protect against signal piracy,
a short term of 24 hours would make more sense than 5 decades from the date
of every broadcast.

Under no circumstances should post fixation rights apply to every mere
re-transmission of a broadcast signal — a policy that would in practice
result in perpetual protection of the signal, and give broadcasters more
durable protection than copyright holders.

The proposals for exceptions in the Chair’s text are narrow, give
broadcasters more robust rights than copyright owners or performers
themselves, and narrower exceptions to protect users than exist for
copyrighted works. The draft text says countries “may” extend the same
exceptions that exist for copyright, but, obviously, can chose not to, and
even then, a three step test is placed on exceptions. This is more
restrictive than the Berne Convention, which has mandatory exceptions for
news of the day and quotations, and permissive exceptions for educational
and other uses, not subject to a three step test.

If the broadcasters’ right does not extend to post fixation rights, or has
an extremely short term, the exceptions language may be less important. But
since broadcasters are seeking rights that last for half a century, i.e.
post fixation rights, the exceptions become extremely important and should
include those in Berne (news of the day and quotation), as well as for
education and training purposes, personal use and preservation and
archiving. The agreement should also permit non-mandatory exceptions that
address both specific uses and more general frameworks such as fair dealing
or fair use. Compulsory licenses should not be prohibited.

Exceptions for broadcasting rights should not be less enabling for users
than the exceptions to copyright and in the treaty should never give
broadcasters post fixation rights in works in the public domain, or that
are openly licensed.


Center for Democracy & Technology (CDT)
Centre for Internet & Society (India) (CIS)
Consumer Association the Quality of Life( EKPIZO)
Corporación Innovarte
Creative Commons
Electronic Information for Libraries (EIFL)
European Bureau of Library, Documentation and Information Associations (
Fundación Karisma
Global Expert Network on Copyright User Rights
International Federation of Library Associations and Institutions (IFLA)
Knowledge Ecology International (KEI)

1/. Revised Consolidated Text on Definitions, Object of Protection, Rights
to be Granted and Other Issues, Prepared by the Chair, SCCR/39/4, 1 October

Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International
41 22 791 6727
thiru at keionline.org

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