KEI Recommendations on the work of the SCCR on a treaty for broadcasting organizations

KEI Recommendations on the work of the SCCR on a treaty for broadcasting organizations
Prepared for WIPO General Assembly
October 4, 2017

KEI recommends taking the broadcasting treaty off the agenda of the SCCR, until (1) the proponents of the treaty can explain what they expect the treaty will do, in practical terms, (2) how the treaty will impact copyright owners and persons who want access to information distributed by broadcasters, and (3) if there is a realistic expectation of agreement on the substance of the treaty.

To the extent that broadcasters face some type of problems in protecting traditional broadcasts of sporting events or other live events, or face unique challenges in addressing piracy that cannot be solved under existing copyright and related rights regimes, and there are solutions that do not undermine legitimate user rights, such a treaty might be a positive.

However, there are versions of the treaty advocated by broadcaster lobbies and some member states which would have negative impacts on the public in several ways.

Post-fixation rights in broadcasts are the main problem area, and if broadcasters insist on such rights, WIPO will have to address the need for robust exceptions to those rights.

WIPO will also have to consider the consequences of creating new layers of rights over copyright every time information is transmitted over a broadcasting platform, creating new thickets of rights to clear and compensate, and extending rights literally forever.

All of these problems become far larger if the broadcasting treaty is extended to the internet, as proponents in several countries demand.

It is highly unlikely that a new set of related rights for material transmitted on the Internet can be limited to only benefit traditional broadcasters, particularly if the broadcasters insist on rights to material originated and distributed over the internet at a time and place of choosing by the audience.

If internet transmissions are included, it is highly likely WIPO will be creating a right in third party owned and created content, benefiting large U.S. companies streaming video, like Google’s Youtube, Facebook, Netflix, Amazon and iTunes, and music streaming companies like Spotify. Does WIPO really want to do this?

There is massive confusion over how the broadcast treaty would work, and this is not something you want when pushing for a diplomatic conference. The public needs to know now what WIPO is trying to do, and how it would impact them.

One helpful step would be to do an impact study that focused on key questions, such as those posed in the Annex to this statement.

But even simpler is for the delegates to do what was done in 2007 – remove the broadcasting treaty from the SCCR agenda for now, as it is clear that broadcasting is a major distraction and the treaty is a confusing and flawed proposal.

Annex: Questions about the proposed WIPO Broadcasting Treaty

  1. How would the treaty change the distribution of incomes between copyright holders, listeners and broadcasters?
  2. How would the treaty change the distribution of incomes between countries, given the ownership of beneficiaries that “schedule” rather than own content.
  3. Which companies play a particularly significant role in scheduling content, and who owns these companies? Does this differ significantly from the ownership of the content itself?
  4. If the treaty is extended to the internet for streamed video or music, who will be the beneficiaries of the rights? For example, will Netflix, Youtube and Spotify obtain rights in third party content?
  5. How will the treaty impact the exceptions to copyright now provided in the Berne Convention, such as the right to quotation and news-of-the-day, and exceptions for public affairs or education?
  6. How will the treaty impact the orphan works problem? (If the treaty creates new post-fixation rights for broadcasters)
  7. How will the treaty impact producers/creators of audiovisual content that use information obtained from a broadcast?
  8. How will the treaty impact of the use of information from broadcasts in social networks, such as Facebook, Twitter, etc.?