SCCR 27 WIPO *New* Broadcasters’ Treaty: Impact on Rights Owners

As promised in my previous blog, here in their own words, Tuesday April 29, 2014 afternoon session of SCCR 27, the view point of copyright owners on the proposed treaty for broadcasting organizations. The fact that it is quite repetitive is probably one of the points they were trying to make and it was in fact quite effective in “changing” the general mood of the meeting.

The two following quotes summarize the arguments:

IFM: If piracy is the appropriation of a right from legitimate owners of that right, what are we seeing when a broadcasters exploit musical recordings for which they make no payment to the performers or the producers of phonograms?

IFPI: No broadcasting treaty should grant broadcasters rights that are stronger or more extensive in scope than or duplicative of the already existing rights in the content transmitted by the broadcaster. Second, a treaty that gives broadcasters the right to prevent certain uses of their signals must also ensure that performers and producers of sound recordings enjoy either the right to prevent the use of their recordings by broadcasters or the right to equitable remuneration rates from broadcasters who use those recordings. While the WIPO programs and treaty gives producers and sound recording owners right of equitable remuneration rates from broadcasters, the provision granting that right is undermined by giving contracting parties the right to opt out of that provision.

There were many more statements from that side of the room:

CISAC: […] I would like to offer the viewpoint of authors and author societies on the discussions that have taken place here today and yesterday. Of course, with the particular focus on the scope of protection. Let me open by saying that the discussion on the broadcasters treaty is of key importance to CISAC because the royalties collected from broadcasters and other entities that disseminate copyright works to the public are major source of revenue to the authors. La society for author societies, we represent 225 author societies and also referred to as collective management associations from 120 countries, and through this membership we are the voice of over 3 million creators from all artistic field, music, literal, drama, visual arts, many works communicated to the world by broadcasters. The livelihood of these creators depends on their being rewarded for this work. And many of the artists depend on the royalties collected for the broadcasting of their works. […] today many Delegations have expressed the important points that protection for broadcasters should not affect and should not undermine the rights of creators in the underlying content, in the content that is broadcast. This is very much Linked in our view to the discussion on the scope of protection for broadcasters because protection for broadcasters should exist if and only if broadcasters themselves recognize and respect the rights of creators of the underlying contents. CSAC and the creative communities understands the call and desire of the broadcasting organisation lings to discontinue the piracy of the signals, but at the same time the treaty should unless that they creators are duly rewarded for the broadcast of their work. Protection for broadcasters only makes sense if the broadcasters themselves respect rights and obtain licenses for the underlying contents that they communicate. Now, I can share with this Committee that the majority of royalties collected around the world on behalf of authors are collected for the communication to the public of their works, around 75 percent of overall royalties collected by CISAC member societies come from broadcasting and other forms of communication to the public. […] Unfortunately in a number of situations, a number of countries, authors still face reluctance from broadcasters to recognize authors’ rights and obtain licenses for the contents they submit. This is an issue that must be discussed in any discussion of broadcasters in the future in any future broadcasters treaty. 

Broadcasters should benefit from protection only if they protect the rights, TV, films, music, so on. If the broadcasters refuse to pay for content or refuse to recognize the rights of the creators of that content they should not be entitled for the broadcasting of the signals that submits the unlicensed content. To conclude this point, in our view a limits to protection to broadcasters, where the rights of the content were cleared and license was obtained from all relevant rights holders is necessary in the future treaty. Finally I would also say in order not to confuse rights in the signals and rights in the underlying content, we believe that the level of protection granted to broadcasters under the new treaty should be limited to the minimum necessary for broadcasters to address unwritten transmissions of signals. […]

CHAIR: Thank you, CISAC for reminding us that we not only have rights with you also obligations and in meeting our responsibilities as established in international instruments should serve as an example for all parties to these negotiations. IFPI, you have the floor.

Thank you, Mr. Chairman. On behalf of, representing the recording industry worldwide I wish to offer our best wishes to you and your vice chairs as you continue to lead this Committee in its deliberations. We have heard a lot of discussion today about the rights to content. Proponents of a treaty assure us it is not intended to interfere with the rights to the content itself. We welcome those assurances, but we are
not certain that what we have heard necessarily resolves the inherent difficulties that arise when a broadcaster is given rights that seem to be very similar to the rights already enjoyed by those who own the rights to the content that they transmit. But that is not precisely the concern upon which I wish to focus at the moment.  Our consumer relates to certain rights for broadcasters that go beyond the rights for those who create the content that is carried on broadcasters’ signals. I would like to draw the Committee’s attention to the statement distributed by the independent music company’s association, the international federation of musicians, the Latin America federation of artists and performers and FP. Together we represent performers and dose, of the music that constitutes the content transmitted on broadcasting signals. As key stakeholders concerning the proposed treaty for the protection of broadcasting organisations an as holders of rights in much of the content transmitted by broadcasting organisations, we ask that any broadcasting treaty considered by WIPO ensure that any grants of rights to broadcasters be made contingent upon respect and consideration for the rights and interests of those whose content is carried on their signals. It would be remarkable if a treaty for the protection of broadcasters gave broadcasters rights relating to musical recordings that are superior to the rights of those who create and produced those recordings. However, the current draft text threatens to do just that. It tbrants broadcasters protection for their signals, those carrying predominantly or only recorded music even though the producers and creators of music have no right either to prevent the broadcasters from streaming their music or obtaining remuneration rate from the broadcasters of their music. As the creators and holders of the rights of content carried on broadcasters, musicians ask that any treaty recommended by the Committee be consistent with the two following principles: First, broadcasters should not be granted rights that are superior to the rights in the content they carry. Most of the content carried on broadcasting signals is already protected by content or related rights. In most cases those rights will be held by the persons responsible for the creation of the content which in some cases will be the broadcasting organisations themselves.

No broadcasting treaty should grant broadcasters rights that are stronger or more extensive in scope than or duplicative of the already existing rights in the content transmitted by the broadcaster. Second, a treaty that gives broadcasters the right to prevent certain uses of their signals must also ensure that performers and producers of sound recordings enjoy either the right to prevent the use of their recordings by broadcasters or the right to equitable remuneration rates from broadcasters who use those recordings. While the WIPO programs and treaty gives producers and sound rears right of equitable remuneration rates from broadcasters, the provision granting that right is undermined by giving contracting parties the right to opt out of that provision. Although most WPPT parties have not done so, some parties representing major economies have opted out permitting broadcasters to transmit sound recordings without payment of any remuneration rates to performers and producers. A treaty that requires signatories to give protection to broadcasters while the same broadcasters could continue to broadcast recorded music without having to pay for that music or to obtain permission from those who own the rights in that music would be a treaty that condones misappropriation of creative content frequently for commercial gain, the very conduct that broadcasters purport to seek to curtail in pressing for a treaty. We urge that any broadcasting should address the failure in some countries to give to producers and creators rights to those similar to those in other content that is transmitted bring broadcasters and indeed to give them rights similar to those proposed to be given to broadcasters in this proposed treaty. […]

FIA: Thank you. Thank you, Mr. Chairman, for allowing me to address this meeting on behalf of my organisation and since this is the first time we take the floor, please allow me to congratulate you on your reelection. The international federation of actors is a strong collective voice for performers around the world with more 75 trade union members. We speak on behalf of several hundreds of thousands of professional performers whose work it is to entertain millions of people in all continents. Our members performances whether live or on recorded media are delivered to their audiences through a large variety of media, networks, and devices among which are broadcast and cable cast signals. It is undeniable that audio visual work including feature films, TV series and other content that performers contribute to adds great economic value to those signals and sustains the various business models on which they operate. Indeed, drama productions is at times the only content that these signals carry and that audiences agree to pay for. Each of the various business models behind these broadcasts and cable casts aims at offsetting licensing and investment costs while maximizing revenue. To the extent that performers can receive a fair share of these profits, they have a clear interest in the production of the signal that delivers their performances against unauthorized capture and use which profoundly undermines the delivery business models of broadcasters and cable casters. This is why our members broadly acknowledge and share an interest in signal protection. It is fair to say that considerable delays have burdened these negotiation until recently. Mainly due to the desire to stretch the scope of the possible new treaty to also grant broadcasting organisations economic rights that clearly tread of those of all underlying content rights owners. We note that some of the proposals on the table still go way beyond what we believe is necessary to protect a broadcast signal and that further, they further blur the line between the protection of the signal and the protection of the content that is carried by that signal. Which has nothing to do with the current negotiation we believe, and which is the only thing that can be fixed. Authorization for that fixation belongs to the content right owners, not to the broadcasters unless they own the rights in the first place and who can, of course, be licensed to make deferred transmissions that inherently includes the right to makes a fixation. We also urge Member States to not seek analogies with the Rome Convention which did not deal with signal protection but rather with the protection of the broadcast, something we believe is quite different all together.We welcome the U.S. proposal and encourage all WIPO Member States to work collectively to develop a broad consensus around a narrow, purely signal-based approach as proposed by a core number of governments already.  […]

IFM Mr. Chairman, thank you for giving the floor to the international federation of musicians representing federations and unions of musicians in more than 65 countries. On behalf of my organisation I should also like to congratulate you on your reelection. The debate which has continued within this Committee for more than 17 years for the protection of broadcasters against piracy does encounter difficulties in the creation of rights subsequent to fixation in 2007, the terming’s of reference of the SCCR were clarified by limiting two questions of traditional broadcasting and the signal and excluding other methods such as webcasts, while some Delegations continue to demand post fixation rights, that is the content transmitted by the signal, we would like to recall that those same organisations before, in addition to rightholders are consumers. They are consumers of content, particularly of recorded music.

We believe that it would not only be a paradox but indeed incoherent were broadcasting organisations granted new rights by the members of WIPO, rights which violate those of the creators, the recognition of the content transmitted and those rights should — broadcasters seek to accrue those rights to themselves.

If a piracy is the appropriation of a right from legitimate owners of that right, what are we seeing when a broadcasters exploit musical recordings for which they make no payment to the performers or the producers of phonograms?

If we agree that it is urgent to resolve the issue of protecting broadcasters against pirating of their signals, it is equally urgent to ensure that they fairly remunerate the creators of the content which they transmit. As the representative of IFPI has reminded you a document published by FIM together with three other organisations representing creators, performers and makers of phonograms, that document is available
outside the door. I would encourage you all to look at the document in order to add its content to your reflexes on this — reflections on this treaty. […]

CHAIR: Thank you. I would also like to thank the FIM, re-enforcing statements made by other NGOs regarding the likely impact on the rights holders of the contented, more particularly in the case of performers. And this certainly represents a challenge. And now I give the floor to CRIC.

CRIC: thank you, Chairman. Contradict is the information center in Japan which con consists of various copyright experts, researchers and professionals and so on. And at the moment, for the deliver answer of further discussion of the rights, I would like to make an analysis and categorization of lists of rights based on a diagram of Japan. So I can categorize these lists of rights in four areas. First one, one area is the right concerning unfixed broadcast. One is the right of the broadcasting of unfixed broadcast. And the other is the right of retransmission over the Internet. I bring these to light together with one right that is na right of rebroadcasting. Sorry, the right of transmission by any medium that is the proposal from the USA, the retransmission right. And another is the right of uploading. That is famous making available right such as in WCT, WPPT, Beijing treaty and so on. And one more is the right of communication to the public such as defined in the Rome Convention. This right SHEA — groups proposal. I can find the name of the public performance rights. That is the same as the right of communication to the public such as defined in the Rome Convention. So those are the four types of rights concerning unfixed broadcast. And then next area is the right of visualization. This is an independent right. That is the various important point, this right is recognized under the new treaty or not. I think. For for instance, if near simulcasting should be protected under new treaty visualization should be recognized. Of course, how to, what type of fixation is the protected under the new treaty or not depends on further discussion. And the third area is post fixation rights. One is the right of reproduction and one more is the right of distribution. And one more is the public performance right of fixed broadcast that I can find that right in SHE — group of the new proposal, SCCR 27/6. This type of right is first running. Historically we can not find this type of fixed post fixation right communication to the public, for public performance rights concerning post fixation broadcast. And one more is the very important right in this area, that right of uploading or the right of making available the fixed broadcast. And the last area is other protection. One protection for technical majors and one more is for protection for rights management information. These two protections we can find in WCT, WPPT and Beijing treaty. And one more protection that is protection for rebroadcast signals. That is the newest one. That is the new protection for the right in our discussion in the WIPO discussion historically. So how to provide the protection for this right is for further discussion.

[…] BCC: Thank you, Mr. Chairman for the opportunity to take the floor. The British Copyright Council represents the interests of those who create and hold interests or manage the rights in literary, dramatic, musical, artistic works, performances, films, sound recordings, broadcasts and other material in which there are rights of copyright and related rights. So as such, the British copyright Council recognizes the importance of the proposed treaty on the protection of broadcasting organisations, leaving intact and not in any way affecting the protection of copyright or related rights in the subject matter carried by broadcast signals. However, the practical reality of the way in which copyright owners license or even entrust the exercise of specific rights to broadcast organisations under licenses or under application of the current copyright law must form a vital back drop to the protections that are being debated for the new treaty. This practical balance should provide a focus on just how the overall interests of rights owners are affected when a licensed signal is used or fixed by parties who are not authorized to receive it. The damage to this agreed licensing regime and the practical damage that is caused when unauthorized parties produce to make use of the fixed signal and its content for uses not agreed under the licenses that support the signal being created in the first place, needs to be borne in mind.

An ability for a broadcasting organizations to prevent the misuse of its signal is therefore important for all rights holders who lie behind the authorization of the signal. A particular importance is the right for the owner of the broadcast signal to consent to fixation of the service supported by the signal and therefore oversee approval and authorization for any fixation subsequently being made available on demand for other uses. In addition to the protection of the rights in the signal, the consent and approval must under existing copyright laws reflect the extent of the licenses that have been secured for underlying rights. The owner of the signal is also well placed to provide a point of coordination in identifying the misuse and seeking to take action against this not instead of the underlying rights owners but to a large extent as a support for the interests by supporting and seeking recognition for the existence (ed?)of the content licenses granted to the broadcasting organisation in the first instance.

The reality is once the signal is fixed, its life as a new signal is over. However, the form in which it is fixed needs to be able to be authorized. If it is not authorized, the owner of the signal needs to be able to do something about it. Not just to protect its own interests but also the interests of those who entrusted their own rights to the broadcaster. However, in providing for this protection it is also important that the opportunities for underlying rights owners to continue to assert their own exclusive rights or their rights to equitable remuneration from broadcasters who are authorized to relay the fixations are not diminished or affected. It seems clear that this is recognised, but we urge that it is not forgotten.
FILA: Thank you, Chairman. Thank you indeed for giving us the floor. As we are speaking here for the first time allow me to begin by congratulating you, Chair, on your election to the helm of our work. We are delighted to see you in the Chair. I represent an organisation that brings together 23 organisations, all of them being rights management bodies operating in Latin America and indeed throughout the Spanish-speaking world. We represent thousands of artisan performers of different kinds. We have been following closely all the discussions here for many years, actually going right back to 1992.  And I really cannot hide the fact that we are extremely concerned about the way that things have developed. Here I would in particular endorse the comments made by the FIA and others. We have a clear mandate from the General Assembly. Our mandate is to protect the signal and to find a way of appropriately protecting the signal in broadcasting terms. Now, that’s our mandate. But our work has developed in a number of ways. We now have before us a text about which I think we have to be extremely cautious. We must bear in mind the fact that what we do can have an impact on other treaties that are currently in force: The Rome Convention, the WPPT and so on. Also indeed the Beijing treaty adopted as recently as 2012. Now, given the way our work is going, we would no longer be confining ourselves purely to protection of the signal. We agree we have to protect the signal and we have to combat piracy in order to defend the rights of all rightholders in accordance with copyright and so on. Now, it seems that we have to be very clear about the distinction between copyright on the one hand and signal protection on the other. Otherwise, we are going to run into trouble. Now, we know that when it comes to public distribution and dissemination, often the fees that should be paid are not paid. We know that that happens at present. And we must take great care in the way that we now move forward in order not to worsen the situation. 

If you think back, for instance, to WPPT Article 9, if you look at Roman II in that Article you, I think, will understand what my concern is. We certainly do not understand why there should be an exclusive right to authorize the direct or indirect reproduction in any perform whatsoever of fixation of broadcast. It seems to me that this is surely something that is clearly as is state the here a right that should be enjoyed by rightholders, not by broadcasting organisations. That is where we see a problem. And it seems that we have to draw a distinction between signal and content. And when a broadcasting organizations buys content for transmission they do this through a licensing system which is clearly understood and indeed they may then obtain certain rights, depending on the way in which they make their agreement. We do none of less have some concern here. We feel that a distinction is being blurred. I won’t go into detail about the arguments being put forward on both sides but we, I would like to make it absolutely clear, are committed to combating piracy and protecting broadcasting organizations against piracy because we too as rightholders are also victims of piracy at a global level.

FIAPF: Thank you, Chairman. I would like to begin by congratulating you on your election to the Chair and congratulate lags also go to the Vice Chairs. The FIAPF representing here the economic and legal interests of companies that produce film and other audio visual content all over the world. We find that copyright and related rights are an indispensable economic encouragement for investment in film. And we know that this is something that is extremely important today. In fact, consumers are ever more demanding as to quality. Therefore, we need these rights. These exclusive rights actually support the creative life of authors that we work with. They also allow us to get the funding we need to transform that creative ability into a cultural product that then can be disseminated to the general public, there by contributing to socioeconomic development throughout the world. Broadcasters in many countries are very important partners in the film production and distribution chain. And we live in a world where it is possible to buy or indeed to prebuy rights to a film even before a film is finished, even before production is finished. That can only operate if you have a very clear legal distinction between exclusive rights to content produced by companies at their own risk on the one hand, and on the other hand rights governed by other legal mechanisms allowing broadcasters to protect their signals against piracy. In that context, we support the efforts being made by this Committee in seeking to update protection for broadcasters so that they can have the legal arsenal that they require in order to protect their significant investment. They need to do this in order to be able to continue to provide the public with high quality products. We would, however, encourage more work to be done on the formulation of the text in order to ensure that we have no possible confusion with rights to audio visual content. We think it’s important to draw a distinction between these interests, the interests of broadcasters on one hand and the frats on the other. In order to have balanced development continuing to take place between those who produce content and those who transmit and broadcast that content. This point has been very well made by a number of speakers, particularly India. The solution we are all looking for then has to be based on a simple strategy intended to prevent signal piracy. That kind of approach would allow us to simplify the terms of this treaty. We would focus purely on the specific needs of protection for broadcasters and we would also ensure that there was no danger of conflict with the copyright or with producers’ rights.

We think then particularly when looking at Draft Article 9 in SCCR/27/document Rev that we must recognize the right that Alternative B gives you a very exhaustive list including post fixation rights. This might actually run into conflict with the exclusive rights as currently held by producers and authors. We think that we must take great care to ensure that we do indeed recognize international legal precedence in this area as enshrined in WIPO treaties. We endorse what has been said by CSAC and call upon all Member States that in their respective territories all broadcasters operate in observance of copyright and the rights of creative artists and producers and do their best to ensure that broadcasters’ rights are also fully respected. […]

DirecTV: DirecTV is registered for the first time as an observer. So we appreciate the opportunity to participate. DirecTV is the leading provider in satellite television in Latin America as well as one of the big pay television providers in the United States. DirecTV being in the telecommunications market requests the Delegations and the WIPO delegates to consider the implications of this treaty to the telecommunications industry and the market. We understand that the treaty focusing on piracy, but it has a spillover effect on legitimate businesses like our industry, that is highly regulated and has a lot of rules that need to be complied in every single country where the service is licensed.  So, for example, we have must-carry obligations where we are required to carry certain channels because of a legal obligation by countries. So we consider how this treaty would impact on those same obligations that we would have by law under several jurisdictions and if we would need to require consent from the broadcasters at the same time as we are mandated by law to carry the signals.

So we appreciate that this treaty is about piracy and we are supportive of the efforts to combat piracy, but we would request an exception to look at legitimate businesses that pay taxes, that comply with laws on how this treaty could impact our industry. Retransmission consent is a private matter. We request that to remain in the private, whereas obviously piracy is a public matter, a public policy matter. We request this treaty to deal with Pirates who are unlicensed to perform telecommunications activities, whereas legitimate players that have a license to operate telecommunications activities would be carved out.