The WIPO treaty for the Protection of Broadcasting Organization: The Way Forward?
On day 2 of Standing Committee on Copyright and Related Rights (SCCR) 27, it looks as if the US delegation was showing the SCCR delegates a “way forward” for a new treaty for broadcasting organizations. It seemed as if US diplomacy was working efficiently and the US proposal was gathering support. However, while the US proposal was indeed gathering support, public interest groups and copyright owners also became more vocal in their opposition to the proposal on the table.
Let me highlight aspects of the first 2 days (Monday and Tuesday 28-29 April, 2014) of discussions on the treaty. Wednesday half day is in principle devoted to conclusions on the first topic of the SCCR 27 and will be dealt with in a separate blogpost.
On Monday, led by Martin Moscoso, a most efficient Chair, the delegates moved quickly through the text (with many alternatives) and discussed the various technological platforms as well as the various forms of transmission for broadcasting. They decided to come up (later) with a matrix to, if not clarify at least simplify the work on the proposal. Monday was about the object of protection (what is a signal?) and Tuesday was about Article 9. which is the Article about rights. The issues were: what are the rights that will be granted or not granted to the broadcasters in the treaty.
Until lunch time Tuesday, the mood was quite optimistic and it was no longer “if there is a treaty” …but when there is a treaty. Delegates were chatting everywhere and one could almost feel a treaty fever coming to the SCCR again.
The discussions were quite diplomatic but also technical. The Delegates are, after all, copyright and related rights experts obviously enjoying arguing and debating, subject matter protection, scope and of course nature of rights. Here is the Secretariat comprehensive review of Article 9 which include the many Exclusive rights that are on the table.
SECRETARIAT: this very high level. We have for Article 9 on page 8 two alternatives, alternative A and Alternative B. Then we have Article 9 in the annex, a proposal from India and then we also, of course, have the new proposal on, in that document, annex 6, I believe this is covered in Article 6 of the cablecasting organizations.Starting with the working text,Ssccr/27/2rev. Both of these Articles, they deal with exclusive rights to authorize by broadcasting organizations, the first one lists fewer rights it covers retransmission, performance, the use of a pre-broadcast signal with them and then with the performance (?), it leaves it as a matter of domestic law to determine the conditions under which this may be exercised provided that the protection is adequate and effective.
Alternative B has a more extensive list of exclusive rights that broadcasting organizations may authorize.
Fixation, direct, indirect production, retransmission by any means, communication to the public, making available, transmission for the reception by the public following fixation and making available to the public of the original and copies of fixations of broadcasts with respect to this alternative, there are two subparagraphs, two and three, that address some flexibilities. Two says that the indirect reproduction and retransmission rights may be a matter for domestic law where the protection of the right is claimed to determine the conditions under which it may be exercised provided that the protection is adequate and effective.
It is possible under 3 to deposit a notification with the Director General saying that instead of the exclusive right of authorizing providing for in subparagraphs 2, 4, 5, 6 and 7 there could be a right to prohibit with a notification.
Then there’s a general final subparagraph talking about adequate, effective legal protection to signals.
With the means of the protection being governed by legislation of the country where the protection is claimed.
The Annex includes various proposals and the Chair asked each proponents to explain:
For example, here is the US Intervention:
The U.S. proposal for discussion is found in the annex at page 4, we first suggested this concept a year ago at intercessional meeting and fleshed it out in actual language at the last SCCR session. As we described then, the goal of our suggested language for discussion is to try to cut through the same debate of the scope of rights for this treaty that’s been going on for in the range of 15 years now. What we were attempting to do was to identify a single core right, that would be very narrowly focused to address the fundamental concerns of broadcasters, to do so within the scope of the General Assemblies mandate to deal with signal protection, signal-based protection. As you see from the language, I won’t go in a lot of detail, we have described this before, we would suggest that no post-fixation rights would be required at the international level, just protection for the signal itself and that after fixation we would be relying on protection for the content rather than the signal so not through this treaty, but through other treaties and through national laws.
So the way we formulated it was to focus on simultaneous or near simultaneous retransmission to the public of both the signal and the pre-broadcast signal because the broadcasters had made a case for the need of protection for pre-broadcast signal as well. As you can see from our proposed definition for discussion purposes we would define near simultaneous retransmission to be a transmission that’s delayed only to the extent necessary to accommodate time differences or to facilitate the technical transmission of the signal. So recognizing that — well sometimes there’s a delay but we would be talking about delays of something more like seconds and hours rather than years.
What we would also like to do at this point, rather than spend many hours having everyone discuss again what their original proposals were, perhaps there’s a way forward that this committee could consider. We do have a number of complex alternatives with multiple rights for Article 9 before us at this point.
And in the interest of being able to make progress, we would like to put forth an idea for consideration. In the discussion of our proposal for discussion purposes of this new approach we have not yet in the meetings that we have held since we first put it forward, we have not yet heard opposition to the Treaty covering at least that much and the main area of this agreement seems to be whether there should also be additional rights particularly relating to post-fixation uses. So one suggestion we put forward for consideration on how to move forward in this meeting would be to see if we can as a committee try to narrow the range of choices before us and there are a number of ways that this can be done. One possibility would be to say that one choice is the U.S. suggested approach in our proposal for discussion, and the other main choice would be to start with that, but then also add some version of the various post-fixation rights that other Delegations have proposed as the alternative. Maybe there’s a way that the proponents could combine some of their catalog of rights into a shorter catalog or a single more general right dealing with post fixation uses and then although certainly the United States isn’t in a position to agree to such a broader catalog, we would have a clearer idea of what the two main fundamental approaches are, and that would help us all clarify the situation and present the alternatives to be negotiated as we move forward and make it easier to look for potential compromises.
I don’t know if that’s entirely clear, and I would be I don’t know if that’s entirely clear, and I would be glad to describe in more detail what we were thinking about, but we put this out for everyone’s consideration as a possible way to move forward rather than just to continue to go in circles with everyone explaining their own position. And again, you know, as we keep saying, we want to stress that all we’re talking about again is a international minimum and that doesn’t prevent anyone from having the entire catalog of rights that they may have in their current national system to preserving those rights and urging others to adopt them as well. We’re looking for something that we can all agree to at international level.
This US Proposal which is about a narrow right (a signal-based approach) and also a way to limit the proposals on the table by having only two fundamental approaches on the table. The signal-based narrow approach or the US proposal by contrast with the catalog of rights proposed by the EU (and its supporters).
One had to note that what was in December for SCCR 26, an informal US proposal in the annex, had gathered many supporters. For example, the US proposal was supported in some ways by India:
INDIA: Good morning, Mr. President.
I think Belarus, the Distinguished Delegate from Belarus and the Distinguished Delegate from the U.S. started the day with good morning, with good initiatives. We’re open to discuss those issues. Going back to the comments made by the Distinguished Delegate from belarus, we do agree that no additional protection to the content should be given because content, the content, it is either author or the performer, asper the convention or the WCPT or the sin graphic producer, the producer of the sin graphic or the sound performing. Already the protection, is that.
What we need to protect here, it is the signal as said by the Distinguished Delegate of the United States also. The signal-based approach, that’s what it says, the signal has to be protected. If you look at the definition of signal which India has given in annex, Article 5, page 1, it clearly said that the signal means an electronically generated carrier consisting of a specific program whether encrypted or not and then encryption, it is the dpm, we all know that, you know that that’s the business model, the technical model followed by most. Coming to the program carried by the signal, that’s the broadcast content.
So we have to see what exactly the signal is carrying the broadcast. It contains, you know, various types of Intellectual Property that’s a copyrighted material that we can divide into four main categories. One is, of course, the program content, whether it is in-house production, created by — acquired from the content owner, and then the other content is the advertisement, and then the moment you will see these two things, each has its own look and appearance just like CNN or BBC, the moment that content is on the screen, you know this is CNN content, you know that this is BBC content, even the same if their live casting, this, you see, in the Standing Committee, you know how it is different, it is a CNN journalist, a B cc journal. Then becomes the way they arrange the content, that’s the full thing. The way it is presented. So, these are the four things, the signal, broadcast content, content, so various licensing and arguments are there. The advertising appearing between the few seconds in the BBC journal is different than what advertisement of the CNN and apart from the look and feel of the journal, and then coming to the proposal I would like to briefly explain and make sure we’re given the Article 9. It is totally based on the signal-based approach in
We have explained here that the broadcasting organization hall enjoy the right to prohibit if done without authorization the rebroadcast of the signal through traditional procedure casting means, so rebroadcast not only the broadcast, the rebroadcast has to be protected. Here the question of fixation comes, you know, the fixation to be allowed only for the purposes of the rebroadcasting are in the near simultaneous broadcast, which was our Distinguished Delegate from the U.S. was telling, maybe deferred on the delayed — unless you fix it, you don’t do that. Coming to the simultaneous broadcasting, the U.S. Delegate was talking about, here simultaneous in the traditional sense only, it is clear it is a signal-base aid approach in the traditional sense, not the webcasting or simulcasting, what we need to protect here, if any unscrupulous guy, unauthorized manner taking this program-carrying signal, putting it over the internet, the investment of that broadcaster has to be protected. So that’s what our proposal talks about, not about the simulcasting, live screaming and other platforms. So there — otherwise, we will be including the webcasting and simulcasting in the traditional approach. In the traditional platform doesn’t carry the webcasting of the simulcasting in the traditional sense and also in the webcasting. That’s the simulcasting, doing the same thing, in two different platforms.The simulcasting can be allowed here in the traditional sense, if the BBC wants to, at the same time, broadcasting the same problem, the reach of the B cc in that territory would be different and it is different, they’re covering different parts of the world. So, that’s what I
So, that’s what I would approach here. Then with that, the Distinguished Delegate from U.S. raising the post mixation rights, one significant until appears on the screen, there is l. C or led, nowadays the technology, it is crazy. It is on the screen. So only the content, not the signal. So the fixation of signal, then post-fixation don’t come in the signal-based approach. What we need to do is the Protection of Country the signal and if fixation is coming, that fixation is allowed only for the rebroadcast, deferred or delayed broadcast purposes. We’ll come back in these issues as the further discussion continues.
And by by Mexico.
> MEXICO: Thank you, Chairman. It gives me great pleasure to see you Chairing and you have the full support of my Delegation in all your work and moving forward in the topics of this committee such valuable work from Mexico. I would like to thank the Secretariat for the document that they provided us with in such a punctual manner. Thank you for helping us with our work.
I would like to recall all Delegations. That we need to be seeking the establishment of general standards to feel more comfortable within the legal framework of these particular topic. We shouldn’t be looking for participation on any individual basis because we will move forward with our work.
I recall that any international Treaty has to be based on general principles and not on details and the details should be stipulated in the respective domestic legislation of each Member State. On that note I would like to support the proposals from the Distinguished Delegate from the United States that we should, yes, move forward in this way with the work of this committee
And by Japan:
JAPAN: Good morning, Mr. Chair.
Good morning, everyone. I’m speaking on behalf of the Japanese Delegation.
We’re in the position to support the suggestion by the Distinguished Delegates from the U.S. to put to option related to scope of protection. With respect to scope protection, some Member States seems to find great value in wide variety of rights including fixation rights, including the right of production and the right of making available after the fixation. For such members, post-fixation rights should be included in this Treaty. On the other hand, some Member States are of the view that the minimum fixation rights, simultaneous or near simultaneous retransmission and the right of pre-broadcast is enough under this Treaty.
Here we would like to point out that in order to find the way forward in our discussion more flexible approach may be necessary. From our perspective one possible way while setting the common denominator among all Member States of subject matters for minimum mandatory protection, other rights which not all the members must — most members think is necessary and this is treated as the subject matter for optional protection. Of course, even if we take such an approach we have to further discuss which rights should be mandatory protection and which rights should be optional protection.
And by South Africa:
SOUTH AFRICA: Thank you very much, Mr. Chairman.
In fact, I would like to associate myself with the previous speaker, Mexico and the U.S. I think it would be better to have just a general and another scope of rights for the broadcasters sips we’re dealing with the signal-based approach and so as always to avoid having to include issues and list of issues that are covered by other Treaties. It may cause a problem in the long run in the sense that some Member States may find themselves want to be a part of this Treaty having to do a balancing act as to whether they need to join into this Treaty to be parties to the other Treaties or to the other issues that are being included in this particular Treaty. It would favor a very narrow, general scope of rights as I think the U.S. has captured that very well. I think it will help us to move forward. Otherwise we’ll never — a long, protracted kind of discussion and we have a very good experience in this, we have been looking at this for a very long time and part of the problems lie in this — having a very long list of rights and so on, so on. I think that domestic legislation can do justice into the catalog of rights that Member States will now want to prescribe.
But things were not that easy with the EU:
EUROPEAN UNION: Thank you very much, Mr. Chairman. Good morning to everyone. We tried to look at all the possibilities and options on the table and tried to think of some matrix as you proposed yesterday for which we have to find for both the object of protection and for the rights. Looking at what was presented and discussed today, we tried to put this into some kind of order also in response to the proposal by the Delegation of The United States. What I will present now is our understanding of where we understand with these discussions on various rights and, of course, there may be rates where we have not understood properly.
To us, it seems that there is a consensus in the room as to simultaneous, as to the right to authorize a prohibited or prohibit simultaneous retransmission by any means. As long as we talk about simultaneous retransmission we think from the discussions that took place here, but everybody agrees with simultaneous transmission, that should be covered by the catalog of rights.
Then the other category, the important category here, are any transmissions from fixation. In our view, we should in a way separate the discussion on transmission from fixation from other post fixation points. I think often we use here the term simultaneous retransmission versus post-fixation rights. I think there is a bit of a more nuance to the situation here because we have the post fixation rights because of the reproduction and distribution which we’ll talk about later. We have the core right here, the core right which is a retransmission from fixation.
In the U.S. proposal there is also an element of such transmission from fixation as far as we understand, but it is limited. It is limited by technical means and limited in time because it is only to take account of time zones.
In other alternatives that we have on the table as far as we understand in the working document, alternative A, Alternative B, the proposal which was presented today by Belarus on behalf of some members of the CACEEC group, and to the extent that we understand the proposal of the Delegation of India, all these proposals include the right to authorize and prohibit only the right to prohibit in case of the proposal from India transmissions from fixation. We have — atlas the way we see it, on one side we have the U.S. proposal with transmissions from fixations limited in some way and specifically in time, and then we have a number of proposals where we have transmissions from fixations included. For us, that would be the second block after the simultaneous retransmission, the second block to look at is this block of transmission from fixation. Within this block there are a number of Delegations that in the very explicit way include the so-called making available right. This is the case of Alternative B in the working document, this is the case of the proposal — proposal presented by Belarus today and this of course has been the position of the European Union as well.
So that’s for us, the second thing to look at, maybe to put in this matrix.
We would like to somehow maybe separate this block of transmissions from fixation from what we usually call post-fixation rights. When we move to post-fixation rights you have — this is always interesting, helpful to look at the table proposed by by the Japanese Delegation, there are a number of rights so that you have the right of fixation itself, of course, that’s not exactly post-fixation rights but I think belongs to this group of rights, reproduction and distribution and the right of public performance in places without accessible, for repayment of the fee. All these rights, we think belong to this third block. To be looked at.
Of course, there are certain overlaps, when you look at the various proposals, some extend to all the rights, some extend to only some of these rights. In our view, these three groups are — it is something to be looked at.
Further, I think if we look at this, if we create in matrix in that sense, it will help us to move further. Then, of course, for us, the next step of the discussion is to then understand in more detail various proposals and I’ll just give a couple of examples. I think it is clear for everybody in the room to understand the proposal of the United States on near simultaneous transmission T will have to be very clear what is near simultaneous means, and especially since it is limited in time, in the U.S. today, they indicated, that limited in time not in terms of years, but rather in terms of hours or let’s say shorter periods of time, it is very important to know how this would be, how it would be understood and how it works in practice. I think as regards to proposal from India, one thing for us is still maybe not entirely clear is this reference that in all cases the protection has to be subject to the extent of rights acquired from the owners of copyright and related rights. That’s, for example, in terms of transmissions of sport events, which are not covered by copyright, we don’t understand how this would be covered or whether the proposal of India is, but these would not be covered at all by these Treaties but there is a number of issues that we can go into more depth with each of these proposals. I think that the final, final block is what kind of rights are we talking about in terms of exclusive rights, rights to prohibit. That’s all other rights.
In a number of these proposals, we have the right to offer us and prohibit, why for example in the proposal from India we have clearly right to prohibit. That’s the final element of the matrix with which we have to look at because maybe not necessarily for all of the rights we have to have the same right. In the sense the same category of right. Maybe we can have some rights that are exclusive rights and for some rights, rights to prohibit, of course, we should not finally forget the protection for the pre-broadcast signal because we have not mentioned it today, but I think on that element also there is quite a broad consensus to have this as a right to the protection for pre-broadcasting. Thank you very much.
After quite a few confused and confusing interventions, the US took the floor again urging the delegates to separate the two main issues, what are we trying to protect and with what rights:
A lot of issues have been raised in the last round of interventions. I do think it is important to keep our minds fixed on the idea that there is two separate issues and one is the scope or object of protection and the other is what the nature of the rights are. Sometimes I think we’re conflating them in the discussions, if we look at the matrix, the object of protection, what that is, I just wanted to note one more time while we’ve got the broadcasters in the room that I do think there is still some open questions that would be good to get answers to if not — if it is not possible to get the answers this week, then the next time that this committee meets, and those were my questions about to what extent the uses of new technology described by the BBC and summarized in Japan’s little summary document, to what extent the uses of new technology have become standard and how widely adopted they are among broadcasters in different countries and of different types and sizes. I think that would be helpful to know.
Also where the piracy takes place, where it is that those who are Pirating, getting the signals from would be useful to know as well and I partly raise these questions because to the extent we’re debating the inclusion of or consideration of simulcasting, deferred, on demand transmission signals, in addition to the question of what extent the piracy problems would be covered by copyright in the content and another question with could be could this be seen an an issue of infringe.
Rather than the issue of protection. If we’re protecting over the air broadcast signals, is the problem that the piracy of those signals is taking place using the simulcast versus using the actual over the air broadcast. That’s why I see the issues as related, and I think it would be helpful to get more answers to those questions as we look at whatever matrix is prepared.
In terms In terms of the rights, the Article 9 issues, the EU asked a number of questions, I think the Delegate from the EU is correct that there’s — it is not just that the rights are prefixation and post fixation, there is probably at least three different types of things we’re talking about. In the language the U.S. has proposed for discussion we’re not presuming that the existence of a fixation at any point along the way negates the right, not at all. In fact, you certainly could have a simultaneous, near simultaneous near transmission of the public even where the retransmission is made from a fixation and indeed some technologies may require the use of a fixation to enable the retransmission.
I think what we’re focusing on is the idea that there is no right to control the fixation itself or what is otherwise done with subsequent copies, including consumer copying, that would not fall within the right.
Then, just to say that we appreciated the comments from the Delegate of Brazil and also wanted to clarify our proposal was really a matter of process, not substance. We agree with Russia that we’re looking to move this forward and so even though our view is that a single right rather than a combination is the most likely way to be able to make progress and move the debate forward, and achieve an outcome, we also think we could make progress here this week if we could simplify the full range of rights that are on the table and figure out a way to present two options for consideration and further negotiation.
That would only be for purposes of the negotiation rather than an agreement on substance at this point, that that’s the right approach so then each of us could still be able to convince other Member States of our own view or to find some way to accommodate the concerns once we see what the two approaches clearly are.
It is a matter of process to be able to move forward from the complex text that we currently have before us.
Then just finally, we also agree that we still have open the exact wording of what the right would be in Article 9, is it a right to authorize, exclusive right to authorize, a right to prohibit, prevent, maybe at this point in time we need to keep those things in brackets also for further consideration, negotiation, including the issue razed by the E.U. Delegate that possibly the exact wording may be different depending on what the right is that we’re talking about.
Following the US intervention, India discussed the very many different kind of piracy. Then, the Chair gave the floor to the NGOs and before lunch, the NAB (the demandeur for the treaty) made some clarifications related to the Monday presentation by the BBC (the red button or on demand webcast of BBC programs). Which was followed by KEI which stated:
This is not a treaty about copyright piracy but a special ride for broadcasters. I think it is not a good idea to sort of refer to cases where there is already a right, the copyright owners have (kei) unless you make it relevant to what’s discussed here this week. IP rights are a form of regulation, and they create monopolies, rights to exclude, new layers of rights to clear, a shrinking of the public domain, and more obligations for consumers, libraries, businesses to pay more money not to copyright holders,but to the distributors of content. Don’t go overboard. Don’t approach this like you’re a rich relative giving gifts to nephews and nieces, interventions should be narrow and only where they’re actually needed to solve a problem like signal piracy to the extent that it is understood and can be remedied through an instrument, or to achieve a predictable, a desired redistribution of income to broadcasters. You’re in this case extending rights to entirely new beneficiaries, it is not just people that broadcast in radio and television which was what the Rome convention addressed and make the service available that no one could charge for. Now you’re talking about pay services protected by under legal protections such as regulatory provisions, contracts, theft of service laws, you’re talking about cable tv service shut off if you didn’t pay, cable — satellite services that are shut off if you don’t pay, you’re talking about a wide-range of internet delivery issues and people are talking about post fixation rights.
You have what the BBC has described, you have people talking about services now provided under services in the United States such as hulu using platforms like these decidings, tablet computers, the explosion of services, and most of the people doing most of the innovative services outside of BBC are not here demanding a WIPO treaty but doing things, it is working, exploding and it is happening without this new form of regulation. So, I would say conclude by saying that the Rome convention or the WPPT or the Beijing treaty should not be the basis of the rights. Those rights already exist, they address different issues. You’re talking about something new today and this new thing should be justified by some coherent explanation of a problem you are trying to solve and should be comfortable because of the cost of the regulation you’re introducing to the information society is somehow justified by the benefit.
The Chair called then on the American Society of Archivists:
Thank you, Mr. Chair. On behalf of the society of American Archivists, the largest organization of archivists, we want to commend you for the continued wise chairmanship of the srcr and thank you to the Secretariat for the excellent support of the Committee’s work. For decades archives included not just paper records but also important sound and video recordings, many of which have come from broadcasters. These are invaluable documents for connecting society to its past. Think of a major event in the past 15 years, the fall of the Berlin wall or the collapse of the twin towers on September 11th, without the video images that were created, these are the documents that will provide the stuff of history that connects future users to the archives. Thus, regardless of whatever measures are put into place to provide the signal protection that broadcasters need, the new rights should not add any further layers on the already existing copyright protection that exists in the content. Over the long passage of time the archives have to span, and given the vigories of institutions that disappear with regularly, adding a new right on broadcast content would add imher rationally for the orphan work in providing abscess to the dock ministry sector that is such an important part of society’s historical record.
After the lunch break, eIFL took the floor. The giddy mood of “moving forward” that we had witnessed in the morning was slowly changing (the momentum keep changing said a broadcaster sitting behind me).
eIFL: As stated at previous sessions of this Committee we see no compelling public policy reason for a new international treatment on the protection of broadcast organisations because piracy of broadcast signals is adequately dealt with under existing laws and
treaties as outlined in the earlier statement by KEI. And the creation of a new layer of rights that affects
access to content is of great concern to librarians because it imposes an additional barrier on access to knowledge especially to content in the public domain.
As stated which the Delegation of Ecuador, a new layer of rights will in addition to creating problems for users create froshes rights holders of content that will impact on their ability to freely licensed their works. Libraries have practical experience of such over protection caused by multiple layers of rights. For example, a library in northern Europe wanted to publish a sound recording from their archive that was originally broadcast in the 1950s. The recording was taken from a rebroadcast in the 1980s. And all of the performers’rights had expired and the authors waived their fees due to the importance of the work, the library had to pay $10,000 for the permission to use the recording because the signal protection applied also to the the retransmission.
So for many libraries, as you can imagine, such costs are out of the question. As a result, socially valuable works remain inaccessible in libraries and archives, depriving the public of the enjoyment of their work. So Distinguished Delegates, please consider the costs to taxpayers and society as well as the perceived benefits of this proposed treaty. Thank you.
After the Libraries, –except for the European Broadcasters under ACT which came to support the NAB and the proposed treaty–, other consumer/public interest groups such as TACD and CIS (India) followed by many many right holders (copyright holders or as they say at WIPO content owners) such as IFPI, FILA, BCC and FIAPS (representing authors, performers, music producers) took the floor one after the other to express their strong opposition to the proposed treaty. The main point for the Music industry representative was that before the broadcasters get a new exclusive rights, they should first recognize the rights of the music producers and pay for music that they broadcast. While this is actually happening in many countries already, the US broadcasters do not pay and that should change first according to the IFPI. Finally (and that was a surprise for many), a representative from Direct TV attending the SCCR for the first time expressed its strong concerns for a treaty that would give broadcasters exclusive rights and thus more power to control the media market.
Here is the Indian NGO CIS statement:
We have some concerns regarding the intended scope and language of Article 9 in Working Document SCCR/27/2 Rev. We believe that this expands the scope of this proposed treaty and is likely to have the effect of granting broadcasters rights over the content being carried and not just the signal. On this issue, we have two brief observations to make:
First- Article 9 envisages fixation and post fixation rights for broadcasting organizations- for instance among others, those of reproduction, distribution and public performance This, we believe is not within the mandate of this Committee, being as it is, inconsistent with a signal based approach.
Second- we express our reservations on the inclusion of “communication to the public” reflected in Article 9 Alternative B, which also relates to the definition of communication to the public under alternative to d of Article 5 of this document. Communication to the public is an element of copyright and governs the content layer, as distinct from the “broadcast” or “transmission” of a signal. Therefore, attempts to regulate “communication to the public” would not be consistent with a signal based approach.
Notes during the excellent IFPI statement as well as statements by the other copyright owners will be in my next blog for your enjoyment.