The revised Chair’s text (SCCR/36/6) is very responsive to the broadcasters, and mostly hostile to the civil society groups’ positions, on issues such as term and exceptions, and extending the right to materials delivered over the Internet. One bright spot is the proposal on TPM.
Term of protection
The text on the term of protection is now open to three possible outcomes, 50 years, 20 years or (X) years “computed from the end of the year in which the programme-carrying signal was transmitted.” The proposal to restart the term with every new transmission creates a perpetual term of protection for many works, in practice, and in any case extends the broadcasters rights far beyond the term allowed for copyright holders or performers.
Beneficiary of the broadcaster right
The right is available to a “broadcasting organization”, which is defined as “the legal entity that takes the initiative and has the editorial responsibility for broadcasting, including assembling and scheduling the programmes carried on the signal,” but not “Entities that deliver their programme-carrying signal exclusively by means of a computer network.” This is a core feature or perhaps a fiction of the treaty, that the new right will only be available to traditional broadcasters, and not the new internet streaming companies. One obvious flaw in this scheme is that it is not hard for an Internet company to acquire a broadcast license somewhere in the World, such as when Pandora earlier bought a South Dakota radio station to qualify as a broadcaster for a different reason. So one could read the Tang text as something that is likely to end up being used by YouTube, Amazon, Spotify, etc.
Object of protection
The object of protection is “simultaneous, near simultaneous transmission”, not only by over the air signals, but “by any means,” plus, in brackets, various proposals to extend the right to transmissions “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. OBJECT OF PROTECTION
The protection granted under this Treaty extends only to programme-carrying signals as broadcast including pre-broadcast signals transmitted by, or on behalf of, a broadcasting organization, but not to programmes contained therein.
(2) (i) Broadcasting organizations shall also enjoy protection for a simultaneous, near simultaneous transmission by any means
[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 organizations from another Contracting Party that chooses to apply subparagraph (ii), to those rights that its own broadcasting organizations enjoy in that other Contracting Party.]
Types of transmissions protected
There are several definitions for retransmissions and transmissions that are not live, such as the “Unrelated deferred transmission” definition, for “broadcasts” which are “broadcast only online” and “not ancillary to the live linear broadcasts.”
(e) “retransmission” means the transmission for reception by the public by any means of a programme-carrying signal broadcast by any other person than the original broadcasting organization or someone acting on its behalf, whether simultaneous, near-simultaneous or deferred.
h) “equivalent deferred transmission” means the deferred transmission that corresponds to the live linear broadcasts of the broadcasting organization and is available for up to a limited number of weeks or months after such linear broadcasts, such as online repeats, on-demand catch-up services and highlights of sport events.
i) “closely-related deferred transmission” means the deferred transmission that is broadcast only online, ancillary to the live linear broadcasts of the broadcasting organization and available for up to a limited number of weeks or months, such as parallel sport events, extra footage on news or programs, previews, additional interviews and behind-the-scenes programs.
j) “unrelated deferred transmission” means a deferred transmission that is broadcast only online, but which is not ancillary to the live linear broadcasts of the broadcasting organization, such as pure on-demand streaming channels, or which may be accessed by members of the public without limitation as to time, such as on-demand catalogues that are available after the expiration of the term for online repeats and on-demand catch-up services.
Technical protection measures
This is the “Proposal on Obligations Concerning Technological Protection Measures,” which is actually good.
- (2) Contracting Parties shall take appropriate measures, as necessary, to ensure that when they provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures, this legal protection does not prevent third parties from enjoying content that is unprotected or no longer protected, as well as the limitations and exceptions provided for in this Treaty.
Limitations and exceptions to the right
The provisions in the Tang text on limitations and exceptions are very disappointing, with no mention of the specific exceptions listed in the Rome Convention or the mandatory exceptions for news of the day or quotations in the Berne Convention, not to mention many of the earlier provisions for include an enumerated list of exceptions to ensure access. In practice, the Tang formulation on exceptions, member states “may” include the same exceptions they have for copyright or related rights, but “shall” confine exceptions to a 3 step test (not required for all Berne exceptions and not required in the Rome at all), without even the agreed upon statements on exceptions found in the 1996 WIPO treaties or the Beijing treaty.
To put the exceptions proposals into perspective, note that they are, by definition, more narrow and restrictive than any other copyright or related rights instrument, even though the broadcasters do not create, own or license the content, and the broadcaster right can last for decades if not centuries after copyright and related rights terms expire, and even when the underlying content was never protected by copyright or licensed under a creative commons license. Tang and many other negotiators know this (they have been lobbied extensively this week and in earlier negotiating sessions) but have made no effort to address concerns about the public’s rights to access and use the content.
More on the broadcast treaty negotiation here: