SCCR 39: Selected Good Statements regarding a Bad Idea (at WIPO)

Today at the WIPO Standing Committee on Copyright and Related Rights (SCCR) started the discussion on the broadcasters’ treaty. According to the Chair, at the last General Assembly, the Committee received “a mandate to continue making progress towards convening a diplomatic conference” for the Broadcasting Treaty “during the 2020 to 2021 biennium subject to Member States reaching consensus in the SCCR on the fundamental issues, including specific scope, object of protection and rights to be granted”.

The chair gave the floor to several delegations and observers. Here is a selection of some of the interesting and “good” interventions on this really bad idea. Please note that since the end of the morning session, the committee has moved the negotiations to “informals” which means we, at WIPO, can listen to the delegations of a few chosen delegates but we cannot –in any way– report on it. The statements below are a selection of the only ones we can share with the world which is quite a pity since the treaty will affect all of us in many ways.

Canada for Group B:

Group B would first like to reiterate the importance of updating the international legal framework for the effective protection of broadcasting organizations with a need to better reflect the current reality faced by broadcasting organizations. We once again stress the importance of reaching mutual agreements on the objectives, specific scope, and object protection of the treaty upon which the 2007 General Assembly’s mandate conditions the convening of a diplomatic conference on a treaty for the protection of traditional broadcasting organizations.

Group B welcomes the discussions held at the SCCR’s 38th session in April 2019 on these issues. We remain committed and indeed look forward to engaging in further discussions as to enhance and consolidate our mutual understanding of the various technical elements of the text under SCCR/39/4. Mr. Chairman, Group B stresses that mutual technical understanding of the reality faced by broadcasting organizations and related issues is crucial in order for us to agree on how best to address the issues through a meaningful, relevant, treaty text. Group B remains committed to contribute to discussions relating to the broadcasting of organizations and indeed toward a meaningful outcome to reflect Member States and of their stakeholders. Thank you.

The excellent statement of the Africa Group delivered by Uganda included the notion that the treaty new layer of rights should not hurt the public, nor creates rights in the public domain

AFRICA GROUP: Thank you, Chair. Uganda is going to deliver the statement on behalf of the Africa Group. We would like to extend our gratitude to you for the revised text to be used as a basis for a treaty for the protection of broadcasting organizations. We believe that it’s a good basis for further discussions. As we have stated in our previous — as we stated in our opening statement, the Africa Group remains committed to the negotiations on the protection of traditional broadcasting organizations on a signal-based approach. We stress the importance of remaining faithful to the mandate of the Committee, but the decision of the 2007 General Assembly and reiterated by 2019 General Assembly which conditions the convening of a diplomatic conference for the adoption of a treaty on the SCCR reaching agreement on the objectives, scope of protection, and rights to be granted.

Mr. Chair, regarding your text, where we shall make substantive comments or views during indepth negotiations, we wish to note at this stage that the text is much clearer, reflecting a clear understanding of the divergent views of Member States. However, there are still significant divergences in positions requiring more concerted efforts from all players.

As we have stated in previous sessions, we support a treaty which carefully balances the interests of all parties, the broadcasters and the public. A careful balance should be reflected in provisions on limitations and exceptions to the rights to be granted. The group also holds the firm view that the treaty should also not create a new layer of rights which would create unnecessary barriers to access to information, culture, education, and the reuse of broadcasting material that is already in the public domain. should also not create additional costs to the public, in particular, those in the remotest parts of the world. Finally, Mr. Chair, the group is committed to engaging discussions with full commitment and pragmatism to ensure that we reach beneficial outcomes. Thank you.

This was followed by quite a few broadcasters proponents and their tired arguments such as “to combat piracy we need more rights in a signal with longer terms and this has to be technically neutral thus must include computer network transmission and the internet etc.

However, here is a well drafted and balanced statement by the Islamic Republic of Iran

Thank you, Chair. Good morning, colleagues. My delegation expresses gratitude for productive work in preparing the revised consolidated text in a new format. The Committee has a unique opportunity to adopt a treaty that would satisfy all parties and stakeholders in society. We are of the view that the Committee should not restrict society’s free access to knowledge in order to create the treaty for the benefit of rightholders.

Traditional broadcasting remains a central mechanism for access to information, knowledge, and culture in many countries. Therefore, the Committee should avoid granting stronger or additional rights which will create additional cost for the public and affect access to broadcasted content.

The mandate of the GA is confined only to broadcasting organizations in the traditional sense. Therefore, the definition of broadcasting should be limited to the traditional definition and the type of the transmission exploited by traditional broadcasters.

Based on the deliberations during the previous sessions, it seems still there are divergent views among Member States with regard to the scope of the treaty as they were referenced to the extension of the scope of the treaty to apply to Internet originated content and thus by that extension, Internet transmissions.

Mr. Chair, we also maintain that the definition contained in the instrument should ensure legal certainty and drafted in a way under which different interpretation and diverse understanding be prevented in the future.

For instance, the term transmission over computer network requires more clarification, maybe in the form of the agreed statement to assist the common understanding among Member States.

While noting the fact that still there are some issues, it requires more discussion around Member States we look forward toward developing a adequate and effective instrument on single-based approach. We also look forward to hear your views on revised consolidated text and its differences from Document/38/10 and more comments will be left for informal consultation Thank you.

This was followed by Canada’s informative statement:

Thank you, Mr. Chair, and thanks to you your vice-chairs deputy Director General Forbin and Secretariat for continued hard work and leadership on this important agenda item. Canada agrees broadcast single is important in order to combat piracy and we look forward to working with international partners to find a mutual workable treaty solution.

In hopes of advancing the work by clarifying what common ground Member States might share we would like to take a moment to explain Canada’s over arching perspective on the draft treaty.

Canadian law provides single protection and prevents piracy in numerous ways that nevertheless do not require broadcasters authorization for certain retransmissions of their signals. This model of protection has developed out of the need to facilitate the wide distribution of certain broadcasts across our large territory, which includes many remote areas.

It helps our country maintain the national identity, diverse cultural and linguistic heritage and access to important information. The limited retransmission right is supplemented by a number of other protections by broadcasters including other exclusive rights in respect of their signals, numerous piracy prohibitions and robust licensing system for retransmitters and full suite of copy right protection in respect of content and broadcast signals compilations of broadcasters broadcast days and broadcast productions of live events, including live sporting events.

These various measures are implemented across multiple statutes, including but not limited to our national copyright legislation. In light of these national priorities and aspects of our system and in anticipation of other Member States having similar experiences, Canada believes the contracting parties to an eventually broadcasting treaty should have the flexibility to maintain domestic broadcasting regimes that ensure the same safeguards, including the flexibility to choose the appropriate domestic policy instruments and measures by which to implement signal protection.

We look forward to the discussion of these and related issues this session and hopes of coming to a greater mutual understanding as well as identifying compromises where necessary in order to accommodate Member States’ various broadcasting regimes that have similarly developed in response to cultural and practical concerns.Thank you once again

Team USA reminded the SCCR of the 2006-2007 mandate:

The United States continues to support updating protection for broadcasting organizations under the terms of the 2006-2007 WIPO GA Mandate, which calls for a signal-based approach to provide protection for the activities of broadcasting organizations in the traditional sense. Consistent with that mandate, the United States believes that such protection should be narrowly focused. In particular, we have proposed a focus on unauthorized retransmission of the broadcast signal to the public over all platforms, including over the Internet as one of the most significant problems facing broadcasting organizations today.

At the same time, rapid technological changes taking place in the broadcasting industry as well as legal treatment at the national level present significant challenges to establishing international norms.

As a result, as many know, it has been difficult to achieve a consensus on such fundamental issues as the object of protection and rights to be granted under the treaty.

The United States is pleased by the meaningful progress that has been made over the past several months in developing ideas that can take us toward a greater consensus on these issues.

In particular, this delegation would like to thank you, Mr. Chair, for the revised text, which includes an annex that contains a number of useful ideas for discussion. Nonetheless, given the complexity of the issues, both legally and technologically, delegations are, of course, taking the time needed to deliberate. We anticipate that those deliberations will continue in a constructive spirit at this session and going forward.

On the basis of progress made at this session and future sessions, Member States will be in a better position to evaluate a possible recommendation to the General Assembly on convening a diplomatic conference for the adoption of a treaty on the protection of broadcasting organizations. Thank you

The observers were given the floor.

KEI: Many in the opening statements talked about piracy issues, and we’ve always been sympathetic to the idea that there may be provisions that are necessary to do a better job of addressing piracy issues, and we’re also open to the idea that there may be some gaps in protection under copyright, for example, in particular for sports broadcasting.

What we’re really unhappy about, and that we’ve said many times, is that the treaty proposes to give up to 50 years of protection following every retransmission of content, defined even broader than copyright under the treaty, even in cases where the broadcasting entity didn’t create, own, license, or even pay for the content. We just think this is extraordinary that you would give longer protection to broadcasters for things that they didn’t create or own or license than you would to copyright owners themselves or creators themselves. You would have more restrictive limitations and exceptions under the treaty.

And the idea that this is just for traditional broadcasting, but several references in the text, you know, that you can store signals, which kind of makes some wonder what the heck you even mean by a signal, and then you could get the information at the time and place if you’re choosing and over any means, there is sort of a lot of double talk in the treaty about whether this is about traditional broadcasting or just streaming services on the Internet.

And lastly, I would say that what’s actually happening out in the world right now is that these streaming services, which are competing against traditional broadcasting without any of these rights and they’re very successful and what people want. You have things like Spotify and Netflix and all the new services and they’ll end up getting this, they’ll find a legal way to get this protection but they don’t need it, and that’s actually where or what consumers want and they protect themselves through encryption and payments — you’re required to pay for these services right now, and so I just think that if you were to narrow the treaty, along the lines of what the United States said, to something that just deals with gaps in protection and some short-term piracy enforcement issues, it would be just a much more manageable and sensible instrument

This was followed by the excellent statements by Communia Representative:

Thank you, I work to protect and protect the public domain from the user’s rights. We understand the current proposal of the broadcasting treaty is to create in a broadcast the perpetual rights of a content that is not subject to copyright and content that is subject to non-exclusive free licenses such as creative commons licenses and we find this extremely problematic for users.

In addition, the proposal for exceptions in the Chair’s text provides narrow exceptions to protect users that exist for copyrighted works. The Draft Text says countries may extend the same exceptions that exist for copyright, but obviously countries can choose not to do this.

This adds new international law restrictions on the adoption of limitations and exceptions for parties to the Rome Convention and this is also more restrictive than the Berne Convention which has mandatory exceptions for the news of the day and quotations and permissive exceptions for educational and other uses. The exceptions provisions in the broadcasting treaty are particularly important and different from the issues covered in the WIPO Performances and phonograms treaty and Beijing Treaty because they could add a layer of rights clearance of copyrighted content.

In order to avoid creating new obstacles to access to culture, knowledge, and information, mandatory exceptions and limitations should be adopted. In addition, no rights should be placed on the works that are in the public domain or openly licensed. Thank you.

Representative from the EIFL.NET.

Access to broadcast content is important for access to knowledge and therefore libraries must ensure that the new right does not create new impediments to accessing that content. There are two important criteria.

First, exceptions to the signal must be in line with exceptions to copyright and related rights and the term of protection for the signal must not be greater than the term of protection for the content it is carrying.

The revised consolidated text, SCCR/39/4 fails on both of these issues.

First, the article on limitations and exceptions is optional and not mandatory. It doesn’t even provide for exceptions that are mandatory in other treaties, for example, quotation in the Berne Convention and making of accessible format copies in the Marrakesh Treaty and also doesn’t provide for mandatory exceptions in other laws such as the EU Digital Single Market Directive on preservation of cultural heritage and exceptions must be mandatory and countries should be able to introduce other exceptions according to national needs.

Second, the term of the protection for the signal is effectively longer than the term for content, and by allowing post-fixation rights to apply to mere retransmissions, the term in the treaty is potentially perpetual. This will worsen the orphan works problem just as countries around the world are trying to address the issue.

The term of protection should be very short and it should not apply to mere retransmissions. To ensure fair access for social, educational, and public interest regions and to protect access to content in the public domain or license under an open-content license, these issues must be addressed in the text.

To conclude, since we cannot report on what is going now, there are still too many supporters of this bad idea and this selection should not make the anyone think that this is “going no where and we should not worry”. It should be the case of course but it is not: progress will be made and we will need more people in the room here and in various countries willing to publicly oppose the treaty.