US July 18, 2012 Intervention at WIPO SCCR 24 on Broadcasters’ Rights

Below is the statement that Shira Perlmutter of USPTO delivered for the US government on July 18, 2012, at the WIPO SCCR 24 meeting in Geneva. As noted in the statement, the United States is calling for a "single text." The nature of the instrument is "a treaty." The U.S. wants the treaty to cover the "signal" without a set term (some earlier proposals had called for 20 to 50 years of protection). The treaty would protect "traditional" broadcasters, defined as over the air, satellite and cable broadcasting. Shira also said the US wanted to "protect those traditional broadcasters against unscrupulous actors who stream their signal over the internet."

There will be a contentious debate on this topic, beginning today. The US Statement from July 18 follows:

US Intervention on Broadcasters’Rights July 18, 2012

The US welcomes and appreciates the explanation of the new proposals, both the one from South Africa and Mexico and the one from Japan. We also found the comparative chart very useful. Both proposals clearly involved tremendous work and represent thoughtful and helpful contributions to the considerations of this Committee.

In order to make progress, we believe it would be useful at this stage to take discussions forward from a single text. We hope the proponents can reach a consensus on what text can be used as the basis for further work.

We are studying the details of the proposals carefully, and will provide specific comments later.

Meanwhile, we have a few initial thoughts and questions:

Signal-based approach. We appreciate both proposals’ references to the goal of a “signal-based” approach as reflected in the General Assembly’s mandate. We are interested in exploring further the possibility of omitting from the text any rights in fixed signals, as a means for achieving that goal.

Term. On the issue of term of protection, we note the point made by India and included as an option in the South African/Mexican proposal, that a set term may not be necessary if only broadcast signals are protected, and not the re-use of fixations of the broadcasts.

Application to the internet. We agree with the concerns expressed by India and Brazil about respect for the General Assembly’s mandate on this issue. At the same time, we would underline the distinction noted by the distinguished delegate of South Africa between protection for “traditional broadcasting” and limiting coverage to the use of “traditional technologies”. In our view, a treaty that does not provide protection against signal theft using new forms of technology would not be worth concluding in the 21st century. Any treaty protecting traditional broadcasting should be technologically neutral with respect to the manner in which piracy is accomplished.

It is important to stress, however, that this is a different question than the extent to which entities such as webcasters are covered by the treaty. The latter is an issue of subject matter protection, while the former is an issue of scope of rights. Those delegations that are not yet ready to go beyond protection for “traditional broadcasters” may nevertheless wish to protect those traditional broadcasters against unscrupulous actors who stream their signal over the internet.

We look forward to further discussion of these and other issues raised by the proposals.