Broadcast Treaty: An Overview

Negotiations on the Treaty for the Protection of Broadcasting Organizations (“Broadcast Treaty”) (draft circulated for discussion at the 26^th SCCR available here- http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_6.pdf) were initiated for the purpose of protecting such organizations from signal piracy. For a broadcasting organization, their signal is the prime source of revenue. Therefore, state intervention at the international level was required to quell the transnational issue of signal piracy. Moves by a majority of nations indicated that the mood was in favour of drafting a treaty that would codify certain protections for broadcasting organizations in the form of rights. The obvious concerns that arose were the nature and scope of those rights. Overbroad rights often posed significant obstacles to the free flow of information. A number of developing nations were concerned that the latest move was a further entrenchment of the colonization of information and knowledge. It was in the common interest to balance the dire need to combat signal piracy in order to maintain the integrity of the business of broadcasting organizations while at the same time ensuring that it doesn’t come at the cost of the access to the information itself.

From the perspective of the Global South, the focus of the text was Article that protected possible action that states may take in the public interest. The South was interested in elevating the status of the public interest to that of an aspiration that states must seek to live up to. So, public interest must continue to guide even negotiations that seek to protect the interests of multinational corporations. The Broadcast Treaty also protects against the restriction of free flow of technology and access to the same in Article 4. One of the sticking points of negotiations has been the nature and scope of the protection that is to be offered to broadcasting organizations. India, among other countries, has advocated for a strict signal-based approach to the protection. It opines that protection should be offered to the signal alone and not the subject matter that is carried by the signal. Many nations of the developed world look at this as a distinction without a difference. There has also been a strong push from the South to limit protection only to transmission and not cover the retransmission of signals within the aegis of the treaty. Another cleavage of opinion has been on definitional concerns that have plagued the negotiations ever since they commenced. Institutions such as Knowledge Ecology International among others have noted with caution the wide meanings conferred on beneficiaries of protection. Understanding broadcasting organizations and cablecasting organizations in an all-encompassing way would result in not just the proliferation of rights, thereby harming the sanctity associated with the concept, but would also lead to the manifestation of those rights on contexts that harm free speech and access to information. For example, the protection of the rights of broadcasting organizations on the internet could play out in a pernicious fashion, particularly since the internet space has long been one of open and free access.

Many countries, including India, Brazil and South Africa, have questioned the need for the treaty in the first place. Adopting this position doesn’t mean a devaluation of the harms of signal piracy. On the other hand, questions have been raised as to whether the creation of rights is the most effective, or even the right, solution. The harms of this problem-solution mismatch mean that the stakes are high; therefore, subjecting this treaty to critical scrutiny assumes great importance.

India, South Africa and the entire bloc has also argued against the inclusion of webcasts and netcasts in the spectrum of rights being conferred on broadcasting organizations. Broadcasting and webcasting work on completely different investment models and don’t work on the same kind of infrastructure. For that and other speech and access reasons, protection should be given, it was argued, only for traditional transmission of the signal. Consensus was ultimately achieved with the US agreeing that the focus of the treaty should be “true signal piracy, real-time transmission of the signal to the public without authorization".[1]

The Centre for Internet and Society has expressed its reservations about the treaty in no uncertain terms in the past. The underlying philosophy has consistently been a robust signal-based approach to the treaty. A consequence of this would be no term of protection for signals since the rights would exist only for infinitesimal amount of time that the signal does. The absence of a term of protection would also preclude concerns about harm to free flow of information from creeping up. CIS noted that there was a need for greater clarity on the meaning of ‘mere retransmissions’ which would not be granted any rights in the April 2007 Non-Paper circulated for the delegates. When the transmission is over a computer networks, there should be inkling of doubt as to the exclusion of both transmission and retransmission from the ambit of protection. Finally, it has called for a different structure of limitations and exceptions to be conceptualized for the treaty. A simplistic transplantation of the Berne Convention provisions would be ignorant of the particular needs of broadcasting. It is critical that the limitations and exceptions be actualized in a manner that is enabling and empowering for the most vulnerable stakeholders.

[1]. http://keionline.org/node/1701