May 12, 2022
Term of protection
1. The 1971 Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms and The 1974 Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite were both anti-piracy treaties. Neither had a term of protection. Doesn’t this illustrate that 20 years of protection isn’t about piracy, but about post-fixation rights?
2. Article 9 of the Chair’s draft provides alternative methods of protection. Some of these don’t require a term. Isn’t that in conflict with the requirement for a 20 year minimum term?
3. What is the practical effect of providing a new 20 years of protection each time a work is retransmitted? Won’t that extend protections beyond copyright terms? Why can the objective of protecting broadcasters against signal theft not be accomplished through a term of minutes or hours?
Cost of clearing an additional layer of rights
4. If the treaty requires persons to clear rights from both copyright holders and broadcasters, for using a copyrighted program obtained from a protected broadcast, will that impose new costs on the public, and make clearing rights more time consuming and uncertain?
5. Since the treaty creates an additional set of rights that will need to be cleared in order to re-use protected works, and formalities are not allowed, how will this impact work where the rightsholder cannot be identified or found? Will this make the current orphan works problem worse, and if so, what measures could be changed in the text to mitigate this expected harm?
When the deferred transmission is to an individual at the time and place of their choosing
6. If a transmission is from a stored digital copy of a work, and sent to an individual user at “a place and at a time individually chosen by them,” (Article 2(g)), why is this called broadcasting? Isn’t broadcasting normally defined as the distribution of audio or video content to a dispersed audience, also referred to as “one-to-many”? Is a “one-to-one” transmission, on demand, really broadcasting?
When the user has permission from the copyright holder to reuse a work.
7. If a member of the public is a paid subscriber of a broadcast service, and watches and records a copyrighted broadcast, for example, a public affairs program, a political debate, or a sporting event, and that person wants to use portions of that recorded program in commentary or a documentary, and they have either the permission from the copyright holder, or if the copyright holder has granted permission by means of an open content license (including, but not limited to, the Creative Commons suite of licenses, which encompass billions of works) or the work is in the public domain, will they be required to also obtain a right to use that copy from the broadcasting outlet that they received the content from, for the next twenty years? Isn’t that a classic case of overprotection and the creation of a thicket of rights?
Formalities
8. The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations Done at Rome on October 26, 1961 and the The 1971 Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms both permit formalities. Given the proposal to create a new set of required permissions to use works obtained from a protected broadcast, why should the treaty prevent the use of ALL formalities that would assist the user in understanding when the related right ends, and who owns the right?
Exceptions
9. The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations Done at Rome on October 26, 1961 and the 1974 Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite are the two existing broadcasting treaties. Neither treaty had a 3 step test for exceptions, and each included specific exceptions.
10. The official model law for the Rome Convention, negotiated and adopted in 1974 under Article 32 of the Rome Convention by the Intergovernmental Committee, sets out a number of specific exceptions, IN ADDITION to a general clause that permits any other exceptions that exist for copyright. (Section 7(1)(e) of the Model Act). Could you go through each of the specified exceptions in the 1974 model act for the Rome Convention, and reflect on why they are not mentioned in the Chairman’s proposal on exceptions?
See: Model law concerning the Protection of Performers, Producers of Phonograms and Broadcasting Organizations with a commentary on it, International Labour Organization [1221], World Intellectual Property Organization [661], Published 1981.
https://unesdoc.unesco.org/ark:/48223/pf0000215524
11. The official model law for the Rome Convention, negotiated and adopted in 1974 under Article 32 of the Rome Convention by the Intergovernmental Committee, also contains an exception specifically relating to the archiving of the broadcasts by the broadcaster, without having to obtain rights from the copyright holder. (Section 7(2)(c)). Should a WIPO treaty on broadcasting have a special exception for archiving, not only by the broadcaster, but by either the user or another appropriate entity? In this respect, a consensus is emerging that all countries should permit preservation of works.
12. Article 7 of the 1974 Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite includes the following clause: “This Convention shall in no way be interpreted as limiting the right of any Contracting State to apply its domestic law in order to prevent abuses of monopoly.” Why is this or something similar not included in the Chair’s draft? It is quite different from other limitations and exceptions, but also important in a world where we are seeing huge global streaming platforms exercising market power and often replacing the national broadcasting industry.
13. The Rome Convention specifically provides for a permissive exception for research. (Article 15(1)(d). Broadcasts are used in many kinds of research such as media monitoring, speech to text translation, etc. Why should no there be a mandatory exception for uses in research?
Creative Commons licensing provisions on downstream access
14. The Creative Commons Attribution license 4.0 International( (link: https://creativecommons.org/licenses/by/4.0/legalcode) includes the following clause:
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“No downstream restrictions. You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material.”
Will the treaty override these pro-access and pro user rights provisions in the license from the copyright holder?
Public Domain materials
15. Why should a broadcaster receive 20 years (or more of exclusive rights to use materials that are in the public domain? Doesn’t this harm the public and reduce access to knowledge?
16. If a cable channel broadcast includes video clips, stills or music that is in the public domain, without the broadcaster right, a downstream user could capture those elements and freely re-use them, but this would make the cable company the sole arbiter of those uses, though History did not invest in the production of these works, nor did they create them.
Qualifying as a broadcast organization or a protected broadcast
17. The proposed text says that “entities that deliver their programme-carrying signal exclusively by means of a computer network do not fall under the definition of a ‘broadcasting organization.’” Does this require that the broadcasting organization own a wireless television or radio station, a wireless DBS satellite system or a wired cable system that does not deliver the signal over the Internet? Does a system like YouTube TV or Hulu TV, which deliver the same channels of television found in cable television systems, but over an Internet protocol qualify?
18. If a company qualifies as a broadcasting organization because they broadcast over non-computer networks, for example, by owning a single television or radio station somewhere in the world, but the treaty defines broadcasting as “the transmission either by wire or wireless means” and “‘retransmission’ means the simultaneous transmission for the reception by the public by any means” does this mean that the only protected broadcasts are those that have at some time been broadcast over traditional radio or television, or a Satellite DBS service or a wired cable system not using Internet protocol?
19. If a cable TV service is delivered over Internet protocol – that is, cable operators that provide internet, and serve their cable offerings over IP – would the cable channels be defined as broadcasts in the same way as other cable services that do not use Internet IP? This is a distinction between cable operators based on extremely abstract changes in technical service delivery that may be invisible to the viewer and the rightsholder.
20. If, as suggested by Professor Bernt Hugenholtz or Jukka Liedes on Tuesday as possible, that the text that limits the qualification of protected broadcast to those originating on something other than a computer network is eliminated so that broadcasting straightway on the Internet qualifies, how much would that expand the scope of the treaty? More generally, how realistic will it be to have such a restrictive definition going forward if every service is using internet protocol to deliver transmissions? (Noting that in some countries, certain wireless spectrum is now being taken back from broadcasters to be used for other services, including to deliver internet connectivity).
21. What exactly does “the assembly and scheduling of the programmes carried on the signal” mean other than having at one point announced the availability of the program to the public? Can a schedule include “right now”?
22. What will be the status of BBC Select, Paramount, Disney+, Canal+, Sky Ticket, Rakuten TV, etc? Will they claim their content is protected because it was once transmitted over a qualifying broadcast platform?
23. Can a company set up a broadcasting farm, such as a cable system with many channels (thousands) in a small market, to qualify digital copies of the content as having been broadcast, and then use this to claim the broadcaster rights for subsequent deferred transmissions?
24. Are policy makers likely to accept that companies doing exactly the same thing will have radically different rights?
25. If the computer networks distinction is dropped, how will this impact the legal rights organizations like Facebook, Youtube, Twitter, Twitch TV, etc, have over user generated and uploaded audiovisual content?
26. Does a broadcasting organization obtain rights in content that was broadcast without obtaining legitimate rights in the content?
27. If a broadcaster uses content without consent of the copyright holder, under an exception for news of the day, quotation, education or fair use, does the broadcaster then claim an exclusive right for retransmissions or deferred transmissions? Even if the subsequent use would not qualify for the same exception?
28. Some delegates are looking at their domestic regulation of broadcasters in the expectation that this sets a fairly high standard to qualify as a broadcasting organization. But unlike the residency requirement of the Rome Convention (Article 2(1)(c) of Rome), “Contracting Parties shall accord the protection provided under this Treaty to broadcasting organizations who are nationals of other Contracting Parties.” (Article 4 of the Chair’s proposed text). Can companies set up “broadcasting” farms in countries with far less regulation if any, to qualify as broadcasting organizations and to qualify protected roadcast signals that would be subsequently distributed over the Internet globally?