SCCR 35 Day 1 at WIPO Standing Committee on Copyright and Related Rights: will the “YouTube treaty” progress?


Since 1998, the WIPO Standing Committee on Copyright and Related Rights (SCCR),has engaged in negotiations to create new norms for the protection of broadcasters, cablecasters and now –again– webcasters too. The proposed treaty was no doubt a part of the WIPO “triptych” of the 90s with the WCC dealing with copyright and the WPP producers and performer treaty. For almost 20 years, the broadcasters’ organization have lobbyed hard for getting their turn at getting a treaty. However, not all countries have related rights (such as the USA) and it has not been an easy and quick negotiation.

Please note that KEI has prepared a timeline on WIPO negotiations on the proposed Treaty which provide an overview of the process:

In short: objectives, scope and object are still unresolved issues. Definitions (what is a signal? what is a broadcasting and cablecasting organization) objectives (protection of a signal? anti piracy? providing more rights to transmitters?) and with what rights (exclusive rights? to authorize and/or to prohibit retransmission?)…all of these questions must be -for some delegations- answered before scheduling a diplomatic conference. Not for all.

Since in 2007, following the failure to resolve outstanding issues the objectives, scope and object of protection, the WIPO General Assembly decided that the subject of broadcasting organizations and cablecasting organizations be retained on the agenda of the SCCR for its regular sessions and that the delegates consider convening of a Diplomatic Conference only after agreement on objectives, specific scope and object of protection has been achieved.

10 years later, on November 13 2017, WIPO members states do not have agreement …on whether they have an agreement regrading the objectives, specific scope and object of protection of the proposed broadcasting treaty.

One more time, at the start of the SCCR, the elephant in the room is whether this treaty will be creating a new kind of rights to cover internet content transmission and re transmission, and if so what would be the impact?

Several members states delegations as well as some civil society representatives such as KEI, the Karisma Foundation, and eFLnet expressed their concerned that the main negotiating documents (SCCR/34/4 and SCCR/27/2 REV) under consideration contain no references to the objectives and purpose of the proposed WIPO broadcasting treaty as well as do not have appropriate limitations and exceptions safeguards and are a threat to the internet as we know it. The representatives from broadcasting organizations made statements clarifying that they want the treaty to include internet transmission and retransmission, post fixation rights and no additional limitations and exceptions.

Selected statements during the 35th Session: Geneva, 13 November 2017, from a Library organization, and a broadcasting association

Agenda item 5: Protection of broadcasting organizations

     Copyright: WIPO. Photo: Emmanuel Berrod. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 IGO License.

Teresa Hacket Speaking on behalf of Electronic Information for Libraries ( expressed clearly what the libraries and thus users of libraries should worry about:

When a new broadcast right goes beyond signal protection into post-fixation rights, libraries must take notice to ensure fair access to broadcast content for social, educational and public interest reasons.

Why do libraries show films? For example, in Senegal the library of the Universite of Cheikh Anta Diop (UCAD) in Dakar shows films to mark occasions such as World Environment Day to sensitize students to important environmental and conservation issues.

The fact is that a new layer of rights that affects access to content is an additional barrier to access to knowledge. Libraries would have to deal with an additional set of rightsholders to clear rights for access, creating extra costs and complexity on the rights clearance process. For sure, it will add to the orphan works problem that is already huge, and where policy makers around the world are trying to find legislative solutions.

Therefore any new instrument must contain a robust set of exceptions that are future-proofed for changes in technology and cannot be taken away by terms in contracts, or technological protection measures.

Consequently ‘Limitations and Exceptions’ set out in SCCR/34/4 IV. Other Issues should be strengthened.

First, Part 1. should specify that contracting parties shall incorporate in its legislation limitations and exceptions for specific uses including private use, reporting of current events, use for the purpose of teaching and research, making accessible for persons with disabilities, and for use by libraries and archives.

Second, the three-step test set out in Part 2. appears to go beyond the standard in the Berne Convention for quotations and news of the day, and is not part of the Rome Convention. To avoid unintended consequences, we recommend removing references to the three step text or, replacing the text with a statement that countries should ensure that rights granted in this treaty do not reduce the application of limitations and exceptions to copyright and related rights in national law.

This is to ensure that new rights do not extend to content that is in the public domain, to content that is licensed under an open content licence, or that was never intended to be subject to such long terms of protection.

With these changes, the document would be improved.

End of the statement.

The civil Society representative was followed by Erica Redler speaking on behalf of the North American broadcasters association representing radio and television broadcasters in Canada. Ms Redler is certainly the best informed of the demands of the broadcasting organizations and, as she pointed out, she has participated at WIPO meetings on this matter since the beginning and has observed many years of discussion. Many options and alternatives have been presented, and the best approaches are reflected, in her view, in part A of the SCCR 34-4 paper.

The one area where more discussion may be necessary relates to broadcasting activities on the internet. It is essential that a new treaty be forward looking and cover broadcasters’ current and inevitable future uses of digital technologies. The 2 treaties concluded in December 1996, the WCT and the WPPT were clearly focused on the Internet and digital technology and the Beijing treaty also addressed this technological environment. The importance and impact of digital technology is no different for broadcasters .The reality is that it is the online activities of broadcasters will be an increasing part of their futures, and to be meaningful the treaty must provide protections for at least some, if not all, of these activities. Similarly, the treaty should recognize the reality of the ever increasing level of piracy via the internet and provide broadcasters adequate tools to address these new forms of piracy.The objective of the treaty should be to protect the activity of broadcasting whatever its technology. Such a technologically neutral approach is the best way to provide an adaptable and forward looking treaty.

3- With this viewpoint, I have 3 short points on current text proposals:

1 -the definition of “broadcasting ” should NOT contain a total broad exclusion of “transmissions over computer networks”. Transmissions over the Internet are a current and growing aspect of broadcasting.

2- the object of protection should allow for, perhaps on an optional basis, protection of some forms of non linear broadcasting. On demand broadcast services are becoming a part of broadcasting because this is what is relevant and wanted by the listening and viewing public.

3- the rights accorded to broadcasters must enable them to control any and all unauthorized uses of their signals and this must include on the internet. The current text proposal of a “right of retransmission by any means ” can work so long as it is sufficiently broad to cover forms of infringement in a digital context.

At the end of the short plenary session, and after lunch, a small group of representatives of each regional groups (7 members for each group) is meeting in informal and we can listen to but not report on the negotiations.