2 July 2014
On day 3 of WIPO’s Standing Committee on Copyright and Related Rights (SCCR28), it appears the Committee has Treaty fever for an instrument for the protection of traditional broadcasting [and cablecasting]. In plenary today, the Chair, Martin Moscoso (Peru) reported on the progress made in informal negotiations. In plenary, the Chair reviewed discussions on 1) simultaneous and near-simultaneous retransmission of the broadcast signal to the public over any medium, 2) transmission of the broadcast signal to the public from a fixation and over any medium (not limited in time) including [the making available right] in such a way that members of the public may access it from a place and at a time individually chosen by them and 3) fixation of a broadcast signal, reproduction of fixations of broadcasts, distribution of fixations (copies) of broadcasts, performance of broadcast signal in places accessible to the public [against payment of an entrance fee].
Sri Lanka (Dilrukshi Dias Wickramasinghe, Additional Solicitor General) proposed simplifying the text (combining elements 1 and 2) with “transmission of the broadcast signal to the public from a fixation and over any medium whether simultaneous, near-simultaneous or deferred (not limited in time) including in such a way that members of the public may access it from a place and at a time individually chosen by them.”
In plenary, the Chair outlined that the Committee would further consider a matrix of rights under the following actions 1) Mandatory (minimum), 2) Opt-in and 3) Exclude from treaty application a priori. It appeared that protection for traditional broadcasting [and cablecasting] (wireless or by wire) would be considered as a mandatory minimum. However in terms of “transmission over the internet [if included, only for broadcasting/cablecasting organizations in the traditional sense] and its relationship with 1) simulcasting, 2) deferred linear transmission of broadcast signal and 3) on-demand transmission of broadcast signal (catch-up), the jury still remains out.
In the context of these discussions, KEI delivered the following statement.
KEI continues to believe that the demandeurs for the broadcasting treaty have not met the burden of providing enough evidence for their need to have more exclusive rights to fight piracy. Moreover, some of the broadcasters still are asking for a new layer of post fixation rights in content they did not create, license or own.
In our view, if the committee wants to move forward on this topic it should focus on a narrow treaty based on a single right corresponding to the core need of broadcasting organizations for protection from signal piracy.
If there is to be a treaty, it should involve a single right to authorize the simultaneous or near simultaneous transmission of signal to the public. (we liked Sri Lanka “simpler” and elegant language proposal:transmission, retransmission or deferred transmission whether simultaneous or near simultaneous on demand of a broadcast signal to the public. But of course we do not like the broad “over any means”)
To avoid a number of negatives, the committee should stay clear of transmission over the internet, an issue which is clearly not ready for prime time.
Adding a new layer of rights over content on the internet would not be consistent with the committee’s mandate to limit protection to the broadcaster’s signal, nor with existing legislation in most countries, and would also have negative impacts on consumers and creative communities globally.
Consumers do not want to face new barriers to using broadcasts, beyond that which exists in copyright. KEI notes that the mandatory copyright exceptions for quotations or news of the day are highly relevant to broadcasting.
KEI also questions and opposes the extension of broadcaster rights to cable television and other services which require subscriber fees, and which are protected under other legal regimes, such as theft of service laws. The focus on the treaty should be on over the air broadcasts which are free to the public.