SCCR 33 Chair’s Proposal for Casting treaty on definitions, object of protection and rights

Here is the Chair’s revised consolidated text followed by his review of the text today:

Standing Committee on Copyright and Related Rights
Thirty-third Session
Geneva, November 14 to 18, 2016
REVISED CONSOLIDATED TEXT ON DEFINITIONS, OBJECT OF PROTECTION, AND RIGHTS TO BE GRANTED
prepared by the Chair

“The Committee requested the Chair to prepare for its next session a consolidated text with respect to definitions, object of protection, and rights to be granted. At that session the Committee will also exchange views on and further clarify other issues in order to reach a common understanding.” Summary by the Chair, SCCR 30.
“The Committee decided to continue discussions on this document and on a revised document that will be prepared by the Chair for the next session of the Committee taking into account the proposals and clarifications discussed.” Summary by the Chair, SCCR 31.
“The Committee decided to continue discussions on a revised version of document SCCR 32/3 that will be prepared by the Chair for the next meeting of the Committee.” Summary by the Chair, SCCR 32.

I. DEFINITIONS
For the purposes of this Treaty:
(a) “programme-carrying signal” means an electronically generated carrier carrying a programme as originally transmitted and in any subsequent technical format.
(b) “programme” means live or recorded material consisting of images, sounds or both, or representations thereof.
(c) “broadcasting”
ALTERNATIVE A

(c) (1) “broadcasting” means the transmission of a programme-carrying signal by wireless means for reception by the public; such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent. [Transmissions over computer networks shall not constitute “broadcasting”.]

(2) “cablecasting” means the transmission of a programme-carrying signal by wire for reception by the public. Transmission by wire of encrypted signals is “cablecasting” where the means for decrypting are provided to the public by the cablecasting organization or with its consent. [Transmissions over computer networks shall not constitute “cablecasting”.]
ALTERNATIVE B

(c) “broadcasting” means the transmission either by wireless means or any other means for reception by the public of a programme-carrying signal; such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent. [Transmissions over computer networks shall not constitute “broadcasting”.]

(d) “broadcasting organization” [and “cablecasting organization”] means the legal entity that takes the initiative and has the editorial responsibility for broadcasting [or cablecasting], including assembling and scheduling the programming carried on the signal. [Entities that deliver their programme-carrying signal exclusively by means of a computer network do not fall under the definition of a “broadcasting organization” [or a “cablecasting organization”].]
Agreed Statement regarding the definition of “Broadcasting Organization”

SCCR/33/3
page 3

For the purpose of this Treaty, the definition of broadcasting organization does not affect the Contracting Party’s national regulatory framework for broadcasting activities.

(e) “retransmission”

Alternative A

(e) “retransmission” means the transmission for the reception by the public by any means [/over any medium] of a programme-carrying signal by any other entity than the original broadcasting [/cablecasting] organization or someone authorized by it, whether simultaneous, near-simultaneous or deferred.

Alternative B

(e) “retransmission” means the simultaneous or near-simultaneous transmission for the reception by the public by any means [/over any medium] of a programme-carrying signal by any other entity than the original broadcasting [/cablecasting] organization or someone authorized by it.

(f) “near simultaneous transmission” means a transmission that is delayed only to the extent necessary to accommodate time differences or to facilitate the technical transmission of the programme-carrying signal.

[(g) “deferred retransmission”]

[(h) “pre-broadcast signal” means a programme-carrying signal transmitted to a broadcasting [/cablecasting] organization, or to an entity acting on its behalf, for the purpose of subsequent transmission to the public.]

SCCR/33/3
page 4

II. OBJECT OF PROTECTION

The protection granted under this Treaty extends only to programme-carrying signals [including pre-broadcast signals] transmitted by, or on behalf of, a broadcasting [or a cablecasting] organization, but not to programmes contained therein.

The provisions of this Treaty shall not provide any protection in respect of mere retransmissions.

Alternative A

Notwithstanding paragraph (2) above, broadcasting [/cablecasting] organizations shall also enjoy protection for simultaneous and near simultaneous transmissions by any means [/over any medium].

Alternative B

(i) Notwithstanding paragraph (2) above, broadcasting [/cablecasting] organizations shall also enjoy protection for a simultaneous, near simultaneous [or deferred] transmission by any means [/over any medium] [including for a transmission made in such a way that members of the public may access it from a place and at the time individually chosen by them].

[(ii) Contracting Parties may limit protection of deferred transmissions including for a transmission made in such a way that members of the public may access it from a place and at the time individually chosen by them.

(iii) Contracting Parties may limit protection accorded to broadcasting [/cablecasting] organizations from another Contracting Party that chooses to apply subparagraph (ii), to those rights that its own broadcasting [/cablecasting] organizations enjoy in that other Contracting Party].

SCCR/33/3
page 5

III. RIGHTS TO BE GRANTED/PROTECTION
(1)
ALTERNATIVE A

(i) Broadcasting organizations shall have the right to authorize or prohibit the [simultaneous, near-simultaneous] [and deferred] retransmission of their programme-carrying signal to the public [[by any means] [/over any medium].

[(ii) Broadcasting [and cablecasting] organizations shall also enjoy the right to authorize or prohibit the making available to the public of their broadcasts [and cablecasts] in such a way that the members of the public may access them from a place and at a time individually chosen by them].

ALTERNATIVE B

(i) Broadcasting organizations shall have the right to prohibit the unauthorized [simultaneous, near-simultaneous] [and deferred] retransmission of their programme-carrying signal to the public [[by any means] [/over any medium].

[(ii) Broadcasting [and cablecasting] organizations shall also enjoy the right to prohibit the making available to the public of their broadcasts [and cablecasts] in such a way that the members of the public may access them from a place and at a time individually chosen by them].

[(2)

Alternative A

Broadcasting organizations shall also enjoy the right to prohibit the unauthorized retransmission of their pre-broadcast signal [[by any means] [/over any medium]].

Alternative B

Broadcasting organizations shall enjoy adequate and effective protection for their pre-broadcast signals.].

[End of document]

November 14, Chair:

Regarding the Document SCCR/33/3, please, if you can follow me, I will refer to this specific document.

As you are aware, this document is an updated version and revised consolidated text prepared following the previous diment and was trying to include your observations and the discussions held on the previous documents, so at the beginning, you will have the summary excerpts of the — from the summary by the Chair. I will just start with the third one, which is the committee decided to continue discussions on a revised version of Document SCCR 32/3 that will be prepared by the Chair for the next meeting of the Committee.

And following that conclusion that I picked up as a summary, the document contains the three sections that were the structure that had from the beginning.

The first section is a Definitions section, and it contains the definitions of programme current signal, the definition of programme, the definition of broadcasting, and the definition of broadcasting organization, the definition of transmission, the definition of near transmission, a title for the definition of deferred retransmission, and the definition of preferred cut signal.

Among them, the last one is the tool — the two last definitions I mentioned are in brackets because its inclusion is under ongoing discussion.

So I will start giving a brief review of what is there without reading it. The definition — the first definition is the programme current signal, which you are aware is the object of protection of the treaty. We were using the term “signal” following the signal-based approach that was mentioned from the general — since the General Assembly mandate, so that’s why we prefer to use “signal,” but it’s not any signal, it’s the signal that is carrying programs, which is not only technical and teleecons vector, it is one that has specific content, and it’s important that we agree that that will be the main object of protection, the programme carried signal, so among the different options, that’s the one we picked up.

Then we have the second definition of “programme.” Since we opted for the definition of “programme” current signal as the object of protection, it appeared to have a definition of “programme,” and we selected one that in the view — in my view was the one that reached the consensus or there were similar views regarding its content, so there were no alternatives in the definition of “programme” as it is placed in this document.

Then we arrived to the definition of “broadcasting,” the third one in this list and regarding the definition of “broadcasting,” we had two alternatives, and alternative A deals with the traditional definition of “broadcasting,” which is taking in account the similar definitions that were used in previous international instruments treaties with some clarifications on the definition, and but mainly it’s the transmission made by wireless means, and since there was the intention to cover the proposed intention by some Delegations to cover cablecasting as part of the activities within the scope of this treaty and since a concern was expressed for different Delegations not to change the traditional definition of “broadcasting,” it appeared the need in this alternative to have a separate definition for cablecasting, including the wire transmission, so that’s why we have two definitions there.

While the alternative B deals with another option that has been clearly expressed by some Delegations that it’s having an inclusive definition of “broadcasting,” either by wireless means or any other means for reception by the public of a programme carrying signal.

The advantage of this new technologically neutral definition of “broadcasting” was expressed by some Delegations in that it is — it is considering that nowadays broadcasting — broadcasters use different techniques for transmission and it’s not limited to the so-called traditional means or wireless means.

In this regard, with a more inclusive definition of “broadcasting,” there will not be the need to add in every time we use the term “broadcasting” /”cablecasting” because in this it will be included, so that has an additional advantage of cleaning the text.

However, of course, if this definition is going to receive the favorable opinion of some Delegations, we should find a way to tackle the concerns, legitimate concerns expressed by those Delegations who want to clarify the treatment that either constitutionally or by national regulatory provisions they make for cablecasting, so in that regard, of course, the second option, the more inclusive definition “broadcasting” will have an effect for further discussion in order to clarify those specific concerns.

Then we go to the definition of “broadcasting organization,” and in there there’s just one signal definition on “broadcasting organization,” but in brackets you will see that it’s expressed there “and cablecasting organization,” because it depends on the previous definition if it’s going to be the inclusive one or we will have two separate ones.

On the definition of “broadcasting organization” has been worked based on your opinions before, and we have highlighted there the responsibility for broadcasting, including assembling and scheduling the programme carried on the signal, highlighting these tasks that were considered essential for that activity.

I — it still remains a second part of the definition clarifying the topic of transmission by networks that clarify that entities that deliver the programme carry signal exclusively by a computer network do not fall under definition of a broadcasting organization. This latter part was intended there to exclude webcasting — the webcasters which were natural persons bringing such activity which was clearly not intentioned to include it within this treaty; however, still it’s in brackets because the impact on such activitying made by traditional broadcasters is still under ongoing consideration.

Then there’s an agreed statement proposed there for tackling the concern related to the regulatory environment for broadcasting organizations, and the agreed statement states that for the purpose of this Treaty, the definition of “broadcasting organization” does not affect the contracted parties’ national regulatory framework for broadcasting activities, and it was suggested in it the previous session and I think it was welcomed — of course, as a way to try to remove concerns, and hopefully it will work. That’s why I have included in this version these agreed statements I just forwarded in the paper.

Then we have the definition of “retransmission,” which includes
two alternatives, as you see. The first alternatives of “retransmission” is what we could consider a broader scope of the definition of “retransmission” because it is referred to transmission by any means or any medium, which is a technical suggestion that — to use that phrase, but, however, it refers mainly to transmission by any means, so any means to transmit will be considered part of the retransmission activity, and, of course, it is not only in this definition, it is covered not only the so-called simultaneous transmission by the so-called near simultaneous transmissions and the deferred transmissions as well.

If I just recall the source of this broader definition of “retransmission” was taken as a south African origin from south African followed the ones in the previous sessions which I took note, and some Delegates stated the advantages of using this broader definition.

Then we have Alternative B, which is a more restrictive definition of “retransmission,” limiting it to the simultaneous and near simultaneous transmission. That is the alternative with this so-called Alternative B there. As you see, it is restricting to those ways of transmission which were considered — that were reaching consensus on its inclusion in previous sessions, and the — the — this definition, of course, implies that deferred transmission will have a separate treatment of it still for further discussion.

Among this alternative, the definition of “retransmission” that covers all platforms could be very useful, I should say. I consider that reviewing different — for example, trade agreements with intellectual property chapters, it technically was used the term “retransmission over Internet,” and when you see there’s — such use, “retransmission over Internet,” it implies that now in the environment we are reading that the term “retransmission” is — it is used for — it is used for — to cover, no, different platforms, so that’s the advantage of and the reason of this first option, Alternative A.

Of course, I only — I also want to highlight that this is the section of definitions, so it’s just the first part of the Treaty. Whatever provision we are going to accept in the Object on Protection of the Rights to be Granted might requalify that retransmission, so when we are selecting a definition, it will have an implication on the rest of the Treaty, but it does not impose what is there is going to be covered by the whole provisions of the Treaty, you know, because if we take the bigger definition or broader definition of “retransmission,” then we can qualify it in the rest of provisions, if necessary, so it’s just a matter of explaining that we still are in this section of definitions.

Then we have the definition of “near simultaneous transmissions.” Since we could mention it, as you see in the definition of “retransmission,” it was considered necessary to define a transmission that is delayed, only to the extent necessary to accommodate time differences or to facilitate a technical transmission of the programme-carrying signal.

And because simultaneous transmission was considered to be clear, but near simultaneous transmission, because there was this delay only to accommodate time differences or to facilitate technical transmission was considered the need to be clarified. That’s why we have one definition there. But then we have a title for a definition of “deferred retransmission,” which is — it’s not — it’s not — we don’t have a definition still at this point for “deferred retransmission,” and the reason I didn’t bring to you a definition of “deferred retransmission” is the sources of those provisions have ariseed from the discussion, and still, we are waiting for suggestions for the definition of “deferred retransmissions,” and since it will have an impact on what we are discussing, we reiterate the invitation to give us inputs for this in order to consider and to find a solution to encompass, but not to prepare for you a definition without giving you the chance to give us inputs on that regard.

What I should say is that what the definition of “deferred retransmission” should cover is not what is encompassed in the definition of “near simultaneous transmissions” because there’s a delay in that definition. You see it’s a delay necessary to accommodate time difference or to facilitate technical transmission, so the “deferred retransmission” should cover something different than that because we are intending to tackle these time differences accommodation or facilitation of technical transmission with this previous definition.

So the definition of “deferred retransmission” should be clearly something that is deferred for sure but not for those reasons expressed in the previous definition.

And finally, we have the definition of “preworld cut signal” taking the sources of your different contributions on that and selecting the common elements of the previous contributions on that regard, which is still in brackets due to the consideration — ongoing consideration if we are going to include such protection for this signal.

So you see this is the whole framework for the definitions section, and let me go to the second section, the Object of Protection, which has not changed, but we have some alternatives in some of the provisions there.

First is the clear statement that the protection on this Treaty, as I announced, extends to the programme-carrying signals, so that’s why I mentioned that that is the object of protection, and that’s pretty clear, but then, of course, it will be necessary after discussion if we are going to include preworld cast signals, if we decide to do so, and as you see a bracket with the issue of cablecasting, which it will depend on the definition, either inclusive or not, that we will decide in the previous section.

Then there’s a clarification that the provision of this Treaty shall not provide any protection in respect of mere retransmissions, and that is very important because at some point there was a confusion regarding the issue of, for example, cable distribution, no, which is not — it’s an activity that does not involve this editorial activity, these scheduling and assembling activities which were part of the Definitions section for broadcasting or cablecasting so when we gawkd cablecasting, it was cable, which was activity that involved this casting part of the term, no, which is not the same that mere cable distributors do.

In that regard, I think it was good to have this clarification, and this provision helps us in that understanding, so no protection in respect to mere retransmissions; however, in the third element or in the third paragraph of Object for Protection, we face two alternatives.

The first alternative is stating that there will be protection for simultaneous and near simultaneous transmissions, which, as you — as I mentioned before, that was a common ground that I read that probably you were leading to because there were different explanations for that, but the second alternative, so-called Alternative B, extends the scope of protection, not only for simultaneous or near simultaneous but to even deferred transmissions and including the transmission made in such a way that members of the public may access it from a place and at the time individually chosen by them, which you are aware is what we call making available way of transmission.

And since we are extending the scope of protection in this Alternative B, there’s a chance to limit such protection, giving flexibility to those jurisdictions who are not — have not decided to — for such extensions, and in that regard, the second — the second from Alternative B gives the parties the chance to limit for deferred transmissions, including the chance to limit protection for the making available way to transmit.

And finally, the following the final in that Alternative B have remarks that if there’s such limitation option taken by the contracting parties, it will have an impact on a national treatment, no, provision, and that’s usual when one contracting party chooses to limit, there will be an effect — usually there’s a provision that says if that decision is taken, other contracting parties are in possibility to limit protection for organizations to that protection that their organizations enjoy in that other contracting party, which is sort of effect for reciprocity on that regard.

Well, these are the two alternatives we are dealing with in the Object of Protection, and as you see would be for me one of the key points to define or to see the — how we are regarding these elements. The intention is to try to include expectations to cover other platforms while giving flexibility, no, for those who consider that — at the national level they are not ready to do so or they prefer not to do so.

Of course, this third paragraph in the Object of Protection part of the understanding that has been expressed that these activities are going to be held by traditional broadcaster or traditional broadcasting organizations, which is a way that has been expressed as useful to under — to apply the broadcasting, and meaning that we could understand that as an activity made by traditional broadcasting organizations.

And finally, we have the third section, which is the Rights to be Granted or — and from the very beginning, we face alternatives in two paragraphs there.

Regarding the first paragraph, we have the first alternative, which is the — giving the right to authorize or prohibit the retransmissions, whatever retransmissions we decide to cover in this second section, meaning the simultaneous, the near you will attainus, or the deferred, whatever — simultaneous or the deferred, whatever we record in the second section, here in this section the first proposal is giving the broadcasting organizations the right to authorize or prohibit those kinds of retransmissions, and this first alternative, it does include the right to authorize or prohibit the making available to the public of their broadcast as well.

While the second alternative is limiting the set of rights to the right of prohibit, so that’s the main difference among Alternative A and B. First, the right to authorize or prohibit, and second, Alternative B, the right to prohibit. And, of course, it has, in the first Roman of this Alternative B, the right to prohibit and authorize retransmission at whatever retransmission we decide in the second section, and it has a second Roman similar to the first alternative, including the right to prohibit the making available to the public of the broadcast.

So this is an explanation of the options we have in front for the section of Rights.

And finally, we have a second provision there with two alternatives, and it’s related to the Protection of prebroadcast. Being the Alternative A giving the right to prohibit for the unauthorized transmission of their prebroadcast signal, while the Alternative B suggests a general provision stating that broadcasting organizations shall enjoy adequate and effective protection for their prebroadcast signals, which is not even — not using the — the right to prohibit but a general term of effective protection — adequate and effective protection.

This was a brief review of the whole document. I have been — since it’s not new, because it’s — it comes from previous versions, I have allowed myself to go in a rapid revision of it because you are aware of the previous versions. You have the new version in advance as well, and so I’m sure that you have made a deep review of it, so in that regard, I will consider your views and comments regarding this, but since this is interconnected with the proposal submitted by Argentina, Mexico, and Colombia, I think that it will be good to listen to them as well and to hear some exchange of questions and answers for the two documents, and then if we — you consider that it is fruitful and productive to — after this exchange of questions and answers, I suggest you to think to go to break to informals in if the — in the afternoon session in order to get deep analysis of this work, of course, with regional coordinator class, a number of — reasonable number of Delegations there, so this will be the afternoon session.

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