28th Session of the WIPO SCCR: Report on the Proposed Treaty for the Protection of Broadcasting Organizations

At its 28^th Session, the WIPO SCCR devoted two and a half days to a discussion on the Broadcast Treaty. For the majority of this period informal discussions (“Informals”) were held between member states and there was no plenary. While Non- Government Organizations ( “NGOs”) and those member states who were not participating in the Informals were able to listen to the discussions taking place, we were requested to not report about them in any form whatsoever. Consequently, this article does not mention, cite or discuss the conversations in the Informals in any manner whatsoever, and is confined to deliberations at the plenary sessions.

Preliminary

Proceedings on Day 1 (June 30, 2014) began with a speech by the Director General of WIPO, Francis Gurry. Commending the “exceptional progress” made by the Committee over the past few years, Mr. Gurry cited the Marrakesh and Beijing Treaties as success stories. In talking about the Broadcast Treaty, Mr. Gurry said that the then ongoing FIFA World Cup, 2014 was “the perfect example” for member states on the economic and social importance of broadcasting. He went on to add that the Broadcast Treaty was the last component of the international legal framework which had not been “updated for the digital environment”. Identifying the challenge as developing a shared understanding of what and how to protect, Mr. Gurry was of the opinion that the Committee would make progress on the development of an instrument that was narrow in scope to combat cross border digital piracy.

In his statement following that of the Director General, the Chairperson, Edgar Martin Moscoso Villacorta (“the Chair”) explained that he had held consultations with the regional coordinators and three other nations from each group on June 27, 2014 to figure out how best to proceed at the upcoming 28^th Session of the Committee; before opening the floor to Regional Coordinators for their Opening Statements.

Group Opening Statements by Regional Coordinators : Reflections of a North-South Divide

Opening statements by Regional Coordinators on behalf of their groups reflected sentiments similar to those witnessed at the 26^th and 27 ^th Sessions of this Committee[1]. While there was broad consensus on having a well-balanced work plan that addressed the different issues of broadcasting, limitations and exceptions for libraries and archives as well as limitations and exceptions for education, teaching, research and persons with disabilities, statements also reflected the disagreements between various groups on the maturity (or the lack thereof) of the various items on the agenda, largely along the fault-lines of the classic Global North v. the Global South. For instance, statements by the European Union (“the EU”) and Group B, the group of developed countries emphasised the convening of a diplomatic conference for the Broadcast Treaty, but on the other hand, statements by the groups of developing countries highlighted the importance of limitations and exceptions.

The Regional Coordinator (presently, Paraguay) for the Group of Latin American and Caribbean Countries (“GRULAC”) placed emphasis on a “well balanced work plan which envisages the different issues” but also stated that for their group, “the issue of limitations and exceptions for libraries and archives and educational and research institutions (is) of the utmost importance.”

The representative of Bangladesh, in his capacity as the Regional Coordinator of the Asia-Pacific Group said that their group considered all issues to be equally important, notwithstanding the fact that they might enjoy different levels of discussion at the SCCR; and on the issue of protection of broadcasting organizations said that the group was “willing to work constructively” and hoped to continue “meaningful technical discussions in finalization of the scope of the protection of broadcasting organizations and to advance further to a balanced international instrument of rights and responsibility for the broadcasting organizations.”

The statement of the Central European and Baltic States (“CEBS”) Group, presently represented by the Czech Republic categorically stated that the CEBS Group was “striving for the successful conclusion of the work regarding the protection of broadcasting organizations with the aim to recommend to the General Assemblies to convene the Diplomatic Conference to take place, as soon as possible, preferably in 2015.” (sic)

Japan, speaking on behalf of Group B, in their statement recognised the “tradition…to allocate more time to discussion on more mature subject matters”, referring to the Broadcast Treaty and, like the CEBS Group, also touched upon the issue of convening a Diplomatic Conference as soon as possible.

The European Union (“the EU”) has perhaps been one of the most vocal proponents of the Broadcast Treaty at past sessions of the Committee, and carried forward this tradition into the 28^th session as well, labelling negotiations on the Broadcast Treaty “a high priority” for Member States. The EU also echoed the statements made by the CEBS Group as well as Group B on the need to call for a diplomatic conference “as soon as possible.” In order to achieve this, said the EU, there was a need to build a “broad consensus” on the problems that needed to be addressed as well as on the extent of protection envisaged.

Technical Assistance from Broadcasters

The United States of America placed an emphasis on a treaty that would address challenges posed by new technologies, indicated in their request to the Secretariat to inform the member states about different sizes and types of broadcasters using new technologies by conducting a survey, recognising that a lot had changed over the course of the past 12 years, when a report on this issue was last prepared; a proposal which was supported by the delegation of India as well.

Following these comments by the United States of America (but in an unrelated move), the Chair suggested technical assistance be sought from broadcasters. Surprisingly, he identified three NGOs (in this case associations of broadcasters), namely Asian Broadcasters Union, International Association of Broadcasters and National Association of Broadcasters, who could provide technical assistance if required.

This stance was supported strongly by the delegations of Egypt and the Russian Federation. While it also found support from the Japanese delegation, it also pointed out that a mere presentation might bring about some confusion, and instead thought that it might be a better idea to update the studies commissioned by WIPO in 2002.

Resistance to this proposition was offered by the delegation of Venezuela who questioned the “expertize of these experts to speak to the Member States about such a complicated issue” and “the selection criteria” among others. Exclaiming in surprise at the manner on which this proposal had been accepted, the delegate sough further clarifications on the issue, demanding to know “who these very important people are who are going to come in and help us solve a problem in which we have not been able to solve in 10 years.” (sic.) The concern on the absence of transparency was also echoed by the delegate of Uruguay, who expressed his great “astonishment” at “three technical experts” at the session, saying that it was “most inappropriate” to be informed about the presence of technical experts after regional coordinators had earlier expressed their refusal to have such an exercise. In response, the Chair said that this was a decision that he had taken in response to a request for technical consultations made at the earlier session of the Committee. He went on to add that the Committee could do without the technical assistance if perceived to be unnecessary and the process not transparent.

Scope of Protection: Article 6

The Scope of Protection under the Broadcast Treaty is laid out under Article 6 of WorkingDocument 27/2/Rev. (“Working Document”). This document lays out the text which forms the basis of the negotiations at the SCCR.

Confining the Broadcast Treaty to a signal based approach versus broadening the scope of the treaty to a more technologically neutral rights based approach was the chief point of conflict between the developed and the developing nations, reflect in their statements discussed below.

Opening the proceedings, the United States of America (“the US”/ “USA”) placed complete support on the statement of Group B; but also added that the way forward “to finding consensus” was to “focus on a narrow treaty based on the core need of broadcasters for protection from signal piracy.” The US proceeded to outline its proposal of “a single right to authorise the simultaneous or near simultaneous transmission of signal to the public over any medium.” Highlighting the key advantages to this proposal the US said that its proposal was “modern”, recognizing the importance of “new technologies that are used for engaging in signal piracy and avoids a number of negatives as to which concerns have been expressed in the discussions”. However, the US was also quick to clarify that the “right would be limited to protection for the signal and not to the content contained in fixations of the broadcast” and would also “avoid interference with the rights of the right holders in the content that was broadcast” as well as “avoid any impact on consumers who were engaged in private activities such as home copying”.

India reiterated its serious concerns regarding webcasting, simulcasting and retransmission over computer networks. Japan, on the other hand, while most other nations chose to reserve their comments for discussions in the Informals alone.

On the third day of this meeting, the Chair presented the progress that had been made over the course of the discussions taking place in the Informals. He said that webcasting had been removed from the scope of application. The concern, said the Chair, was that webcasting was also carried out by other actors- not just broadcasting organizations, and that having different rules for different actors carrying out the same activity would not be “a good message” (sic.)

Rights of Broadcasters: Article 9

The Rights of Broadcasters under the Broadcast Treaty are laid out under Article 9 of the Working Document. The US said that it “remained convinced” that a narrow scope of rights would make it possible for the SCCR to recommend convening a diplomatic conference. The Russian Federation on the other spoke of the need to take into account the “appearance of new technologies which provide new possibilities, particularly the use, and the unauthorized use of the signal.”

As in the case of the Scope of Application, in the case of Rights of Broadcasters as well, the Chair updated the plenary on the discussions in the Informals. The discussions were informed by two informal documents listing out the rights as well as the scope. While discussing the rights, said the Chair, it was decided to merge simultaneous and near simultaneous retransmission since they were closely related. The rights sought to be granted to the broadcasters include those of fixation, reproduction of fixations, distribution of fixations and performance of the broadcast among others.

In response to the Chair’s invitation for suggestions, the delegate of Sri Lanka suggested that one of the sentences be rephrased as follows: “Transmission or retransmission of the broadcast signal to the public over any medium whether simultaneous, near simultaneous or deferred including on demand transmission on a broadcast signal.” She also added fixation rights should be granted only to that extent of a file being copied for the purpose of transmission, before it has been transmitted. A few other delegations either echoed similar sentiments, or chose to remain silent until the Informals.

Comments by NGOs

On the third (and the final for the Broadcast Treaty), day of discussions, the Chair opened the floor to interventions, observations and comments by NGOs.

AIR, representing broadcasting organizations spoke of the “great need” to update the Rome Convention because of the prevalence of piracy, especially transmissions over the internet. The National Association of Broadcasters cited instances of television piracy as examples of the harm to broadcasters and need for such a treaty. The Japanese Commercial Broadcasters Association expressed its support for post fixation rights and said that they were important to broadcasters, “especially the right of making available a fixed broadcast is crucial in order to fight online piracy which we said a number of times before…” (sic.). Also recognising the need to be flexible, the Japanese Commercial Broadcasters expressed their support to the proposal made by the Japanese delegation in making some rights optional.

A different set of concerns was articulated by other NGOs, who were not associations of broadcasters. Trans Atlantic Consumer Dialogue ( “TACD”) spoke of the possible “collateral damange to public access and culture” and the addition of “new layers of complications barriers and costs added” to access to information and knowledge by consumers. Further, highlighting the irony of the SCCR with the strong push towards a binding Broadcast Treaty “with a wide scope”, the Trans Atlantic Consumer Dialogue said that this was in “stark contrast on the part of some other Member States to discussing new global norms” to facilitating the role played by libraries and archives. Additionally, TACD also said that there was the danger of “opening up an endless and incomprehensive Pandora box of overlapping rights on content between non creators of broadcasts and the real creators” (sic.), and also expressed grave concern over the negative impact of post fixation rights on the use of news, culture and information by consumers ad users. “In consideration of a new international norm for broadcasters, we must not forget the common food for the free flow of information for citizens,” said TACD. It also said that the focus of the work should not be to satisfy the interests of one special group while ignoring the possible negative unintentional consequences on “normal users”, and asked for a social impact assessment of the Broadcast Treaty.

Knowledge Ecology International (“KEI”) in their statement stated that the broadcasters had failed to meet their burden of proving the need for “exclusive rights to fight piracy.” In order for the Committee to make progress, KEI suggested that the focus be on a “narrow treaty based on a single right corresponding to the key need of broadcasting organizations for protection from signal piracy.” KEI also questioned and opposed the extension of broadcasters’ rights to cable television and other services which were not only subscription based, but were also protected under theft of service laws. Further confining the scope of the Broadcast Treaty, KEI suggested that the treaty only deal with over the air broadcasts which were free to the public.

A powerful statement by CCIA referred to fixed signals as “fiction” and said that the existing model in the Brussels Satellite Convention was adequate to protect piracy of signals. Echoing the sentiments of various other organisations as well (including CIS as discussed below), CCIA stated that while broadcasters had stated that the present approach was not adequate to protect their interests, no reasons had been offered fir the same. In agreement with other nations as well as TACD before it, CCIA also sought information from WIPO on the “real world impact of the obligations” it intended to create.

Also joining the call for impact assessment was the Third World Network (“TWN”). TWN also spoke of restricting the scope of the Broadcast Treaty to the mandate accorded to the SCCR in line with the 2007 General Assembly decision, the need to base discussing on WIPO’s Development Agenda, and the “negative implications on the free flow of information over the Internet and the negative impact on the public domain and access to knowledge.”

The Centre for Internet and Society (“CIS”), in agreement with CCIA pointed out that the broadcasters had not discharged their burden of justifying the need for the Broadcast Treaty and why “international instruments including, among others, the TRIPS and the Rome Convention” were insufficient to address the concerns of broadcasters. Joining other organizations including CCIA, TACD and TWN in a call for a further study, CIS requested an impact assessment of the Broadcast Treaty on all stakeholders. Further, CIS pointed out that if the rationale for seeking this protection was the protection of the underlying investment, IP based transmissions should be out of the scope of this treaty, since the investments involved in IP based transmissions and those in broadcasting in a traditional sense were very different. CIS also strongly opposed the inclusion of fixation and post fixation rights since they were inconsistent with a signals based approach and pointed out the irony in protecting a signal for twenty years, when the signal itself lasted milliseconds.

IFTA, the Independent Film and Television Alliance placed emphasis on the separation of the content and well as the broadcast signal as well maintaining a balance by also safeguarding public interest.

Chair’s Conclusions

After five days of deliberations, the 28^th Session of the SCCR, just like the 27^th Session, ended with no conclusions being adopted by the Committee, as a result of which the Chair’s Conclusions were prepared by the Chair, Martin Moscoso.

Clarifying that this item would be maintained on the agenda for the 29^th Session of the SCCR and that there had been no agreement on recommendations to the WIPO General Assembly, the Chair’s Conclusions state that the Committee conducted discussions on issues relating to “categories of platforms and activities to be included under the object and scope of protection to be granted to broadcasting organizations in the traditional sense, and initiated discussions on definitions.” The Chair’s Conclusions also clarify that “the Secretariat was requested by some Members to provide an update of the 2010 study on “Current Market and Technology Trends in the Broadcasting Sector” (Document SCCR 19/12), focusing on the use of digital technology by cablecasting and broadcasting organizations in the traditional sense whether public or commercial, including in developing countries, with the aim of presenting the results of the study and providing opportunities for technical discussion at the 29th session of the SCCR.”