Centre for Internet and Society

WIPO SCCR 43: Notes from Day 1

shweta — 2023-04-28T12:01:31Z

Member states delivered opening statements and deliberated on the progress, substantive provisions, and method of work on the draft broadcasting treaty text. This blog post summarises positions and contentions that supported: 1)The need for balance between rights of broadcasters and that of users and researchers 2) Questions around fixation and signal piracy 3) Need for consensus and towards a diplomatic conference

Opening Statements by Group Coordinators

Uruguay on behalf of the GRULAC spoke about the Marrakesh treaty and highlighted how this was the first treaty that looked at human rights and copyright. Uruguay also mentioned the need to look at exclusion and the need for dissemination of knowledge.

On behalf of the Baltic states, Poland expressed their interest in discussing the Limitations and Exceptions (L&E) agenda, with focus on persons with other disabilities, as well as conveyed their interest in examining the T oolkit on Preservation.

The African group coordinator Ghana, highlighted the need to look at the contribution to Sustainable Development Goals, they also showed support for Senegal and Congo on their work on artist copyright and resale rights.

Singapore made the statements on behalf of the Asia and the Pacific Group (APG) group coordinator Indonesia, they commented on the need to work towards a fair and balanced broadcast treaty, and to narrow existing gaps which would require a delicate balance. They also stated that the treaty needs to be comprehensive and inclusive, with limitations and expectations for Libraries, Archives and Museums and areas of cultural importance, as well as access to broadcast content for education and research.

Agenda Item 5: Protection of Broadcasting Organisations

The need for Balance between rights of broadcasters and that of users and researchers

China, Ghana, Colombia, Saudi Arabia, Iran, in their statements highlighted the need for balance between the rights of the broadcasters with suitable limitations and exceptions. Iran in their statements also highlighted the work of libraries, archives and museums in education. Iran also highlighted that different parameters for Limitations and Exceptions in member states' national legislations has the potential to cause barriers in the free flow of data for researchers and educators.

Colombia spoke about their concerns regarding the fixation rights laid out in the treaty and the working of limitations and exceptions under Article 11. Colombia stated that the use of the term “may” in Article 11 could result in countries ignoring the limitations and exceptions provisions when they adopt this treaty into their national legislations. They suggested the changing of the wording in Article 11 from “may” to “shall” to reflect a balanced and progressive treaty.

Nigeria in their statement highlighted the difficulties that were faced by students and educators during Covid 19, when schools and libraries were closed. They also shed light on how limitations and exceptions were not granted uniformly.

Pakistan also emphasised on the need to look at the interests of educators, and supported the inclusion of mandatory limitations and exceptions while protecting the rights of the creators.

Questions around fixation and signal piracy

The Central European and Baltic States Group (CEBS) group, The United Kingdom (UK) , Canada, Tajikistan and The United States of America and Japan in their statements mentioned the need to protect broadcasters especially with respect to stopping piracy. The CEBS group stated that in the era of rapidly evolving technologies and changing digital environments there was a need to extend international protection against piracy to different types of transmissions of broadcasting organizations, including those over computer networks. Similarly, the United Kingdom also highlighted the rapid advancements in technology, which enables signal piracy through redirecting. The UK stated that Article 7 of the draft treaty did not provide sufficient protection, an issue that needed more deliberations.

Need for consensus and progress towards a diplomatic conference

Pakistan, China, Kingdom of Eswatini, The African Regional Intellectual Property Organization (ARIPO) in their statements mentioned that they were looking forward to a diplomatic conference. Pakistan highlighted the need for open and inclusive negotiation in the diplomatic conference.

India expressed that the scope of protection in the revised draft is more comprehensive and in line with technological developments. The definition of the term broadcasting has also been made more comprehensive with the inclusion of the word “any means”. The definition provided for fixation has been provided along with the rights of fixation under Article 7, which may be the most relevant steps to prevent unauthorised exploitation by a third party to the values represented by the signal. India also stated that the treaty is capable of covering piracy in the digital environment and includes broadcasting of all types of broadcast. India also stated that they support the finalisation of the treaty, maintaining the interest of all member states on fundamental issues.

Presentation by the Chair and Vice Chair

On Article 11 the Chair stated that the list could be made clearer, and also clarified that the list is not a closed list. With respect to the works in the public domain the Chair clarified that the broadcasting and distributing of works in public domain, only the work carrying the signal will be under the treaty.
With regard to the scope of fixation the Chair clarified that the scope of fixation is only for the entity emitting the signal. The focus of the treaty is to limit the rights to signal based rights.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-43-notes-from-day-1

Comments on the Draft Copyright (Amendment) Rules, 2019 concerning Statutory Licensing

sinha — 2019-07-11T07:04:35Z

The Centre for Internet & Society gave its comments on the proposed rules 29,30,31 of the Draft Copyright (Amendment) Rules, 2019. The comments were made in response to Notification G.S.R 393(E) published in the Gazette of India on May 30, 2019.

Preliminary

1. This submission presents comments to the Department for Promotion of Industry and Internal Trade (“DPIIT”), Ministry of Commerce and Industry pertaining to the notification G.S.R 393(E) containing the draft Copyright (Amendment) Rules, 2019 issued on 30^th May 2019.

2. We commend DPIIT on the release of the draft Copyright (Amendment) Rules, 2019 (“Draft Rules”) and are thankful for the opportunity to put forth its views via this public consultation.

3. This submission is divided into three main parts. This part, ‘Preliminary’, introduces the document; the second part provides an overview of the organization and its research in the field of intellectual property rights; and the third part contains CIS’ comments on the Draft Rules 29, 30, 31.

4. The third part contains two sections. In the first section, we discuss the legal validity of the Draft Rules 29,30,31. In the second part we discuss the general implications of extending the legal regime of broadcasting rights under the Indian Copyright Act, 1957 (“Act”) to works on the Internet.

About The Centre for Internet and Society

5. The Centre for Internet and Society (“CIS”) is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus in respect of intellectual property rights include research on domestic copyright and patent laws, international trade agreements and treaties pertaining to these subjects, promotion of creators’ and users’ rights with a view to furthering access to knowledge and openness in the public interest. CIS has also been participating at WIPO-SCCR negotiations in the capacity of an Observer since 2009.

6. CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values including the safeguarding of general public interest. Accordingly, the comments in this submission aim to further these principles.

Comments

7. Draft Rules 29, 30 and 31 pertain to section 31D of the Indian Copyright Act, 1957. The proposed change in Rule 29 seeks to expand the modes of broadcast for which notice for invoking statutory license under section 31D may be issued - which previously was restricted to only radio and TV modes of broadcasting; and the change in Rule 31 will permit the Appellate Board to determine royalties for all modes of broadcast.

8. In view of current state of technological advancement, it is safe to deduce that the new mode of broadcasting whose inclusion is being contemplated in relation to s. 31D via the changes is “internet broadcasting”. The changes will allow entities that operate over the Internet medium to apply for a statutory license under s. 31D of the Act. In the following part, we submit our specific comments in respect of Draft Rules 29,30,31.

a) Legal validity of the Rules: Vires vis á vis the Parent Act

As per s. 78(2)(cD), the power of the Central Government to make rules in respect of s. 31D expressly exists in respect of “the manner in which prior notice may be given by a broadcasting organisation under sub-section (2) of section 3ID.” Apart from this clause, a general rule-making power is conferred via s. 78(1) only for carrying out the purposes of the Act. We submit that this general power should be exercised within limits of rule-making in the nature of administrative and procedural detail, and should be in consonance with purposes of the Act. In respect of s. 31D especially, the purpose can be inferred from the legislative history of the provision. This was analysed by the Bombay High Court in Tips Industries v. Wynk Music,[1] where the court noted that the concerns raised before the Rajya Sabha Parliamentary Standing Committee (on the Copyright Amendment Bill (2010)) related to radio and television industries only, and in the court’s opinion those two modes specifically were contemplated while introducing s. 31D.[2] Primarily basis this rationale, the court concluded that “internet broadcasters” offering on demand streaming services cannot avail of s. 31D. Further, s.31D(3) expressly permits the Appellate Board to fix royalty rates only in respect of radio broadcasting and television broadcasting.

Hence, we submit that there is no power under s.78 or any other provision in the Act afforded to the Central Government to expand the scope of s.31D, directly or indirectly. In State of Karnataka v. Ganesh Kamath[3] the Supreme Court held that “it is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent there with or repugnant thereto”.

Thus, the extent to which the Draft Rules 29,30,31 alter the intent and scope of s.31D clearly leaves them ultra vires the parent Act. Rules that are ultra vires the parent Act for exceeding the limits of subordinate executive power are void.[4] Hence, the proposed Draft Rules 29,30,31 are both ultra vires their parent Act and void.

b) Implications of extending legal regime of broadcasting rights to works on the public Internet

The release of the Draft Rules 29,30,31 is another attempt to extend the statutory licensing to “internet broadcasters”. The first attempt was when the Central Government released an Office Memorandum[5] (dated 5^th September 2016) to extend statutory licensing under s.31D to “internet broadcasting” companies. We submit that this was based on an incorrect statutory construction by the Department of Industrial Policy and Promotion (“DIPP”) and was arbitrary in nature. Noted academics and scholars have highlighted several constitutional infirmities in respect of this memorandum.[6] Unfortunately, the current Draft Rules (29,30,31) raise similar concerns.

Separately, in the context of introducing a broadcasting right for works shared over the Internet – we submit that if the line of argument taken by DIPP that s. 2(dd) read with s. 2(ff) supports the inclusion of “internet broadcasting” is taken to its logical conclusion, any person/ entity communicating to the general public via the public Internet can claim protection of their broadcasters’ reproduction right under our Copyright Act. This “broadcast” will happen via multiple platforms such as YouTube, Facebook Watch, live-streaming platforms, on-demand platforms, etc., and such entities will be entitled to enjoyment of this right. This will lead to a dangerous accumulation of undeserved property rights in Internet giants; unlike traditional broadcasters these companies never put up initial upfront economic investment to distribute works to the public. They were launched on the public internet, and currently thrive primarily off user-generated content. Even in respect of protecting content that is actually created with their investment, copyright law will suffice with its remedies for infringement. Hence, there is currently very little economic and legal basis for extending the legal regime of broadcasting rights for works on the Internet. Thus, we submit that in the domestic approach to modernising our copyright legislation, we must refrain from considering distribution of born-digital/ digitised works over the public Internet equivalent to the function of broadcasting works over cable/ satellite.

9. We are thankful to DPIIT and the Ministry of Commerce and Industry for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these submissions and recommendations in detail with members of DPIIT if the opportunity presents itself.

[1] See Bom (HC) judgment in Case No. NMCD/72/2019

[2] See 227^th Report of the Rajya Sabha Parliamentary Standing Committee on the Copyright Amendment Bill (2010) available at http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20HRD/227.pdf

[3] (1983) 2 SCC 40

[4] See Supreme Court Welfare Association (1989) 4 SCC 187 and State of Karnataka (1983) 2 SCC 402.

[5] See ‘Office Memorandum’ available at https://dipp.gov.in/sites/default/files/OM_CopyrightAct_05September2016.pdf

[6] See Letter to Government on Internet Broadcasts (2016) by Shamnad Basheer available at https://spicyip.com/2016/09/letter-to-government-on-internet-broadcasts.html ; and Licensing of Internet Broadcasts under the Copyright Act: Key Constitutional Issues (2019) available at https://indconlawphil.wordpress.com/2019/01/25/guest-post-licensing-of-internet-broadcasts-under-the-copyright-act-key-constitutional-issues/

For more details visit https://cis-india.org/a2k/blogs/comments-on-the-draft-copyright-amendment-rules-2019-concerning-statutory-licensing

Views on on the proposed WIPO Treaty for the Protection of Broadcasting Organizations at side-event organised by Knowledge Ecology International

sinha — 2018-11-29T10:48:40Z

On November 27, Knowledge Ecology International (KEI) organised a side event during deliberations of the 37th Session of the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO). Centre for Internet & Society (CIS), Electronic Information for Libraries (eiFL.net), Corporacion Innovarte, Creative Commons, and Knowledge Ecology International appraised the current text for the proposed WIPO Treaty for the Protection of Broadcasting Organizations (Revised Consolidated Text on Definitions, Object of Protection, Rights to be Granted and Other Issues, SCCR/36/6). Speakers provided an overview of the treaty, explained the potential risks and problems caused, and proposed solutions to narrow the Treaty’s scope and limit the damage. Below is a transcript of the remarks made by Anubha Sinha who represented CIS at this event.

Good afternoon, everyone.

My presentation will be in reference to the revised consolidated text SCCR 36/6 and the US proposal SCCR 37/7.

In essence, this treaty is trying to create a new set of rights for broadcasters operating in both mediums (first, traditional – satellite, airwaves, cables, and second, the internet), ostensibly to counter signal piracy. We are looking at updating a neighbouring rights or related rights regime to protect signals across both mediums.

The intent of treaty is to exclude entities exclusively delivering their programmes over the internet. I fear that the results would create an unequal playing field between broadcasters and internet streaming entities. This would be the first, immediate impact. To then catch up, perhaps, internet streaming services would look to satisfy the treaty requirements to avail protection. This would involve satisfying the definition of a broadcasting organisation (as in SCCR 36/6), and for their country to have ratified the treaty. The characteristics of a broadcasting organisation can be satisfied by acquiring any traditional broadcasting service, for such an entity, as per the current text of the treaty. This would require serious capital, and most start up innovations in the area would not be in a position to undertake such a step. And then there is the question of asserting the rights and enforcing them in other countries – this will be an extremely expensive affair. The point I’m trying to make is that this treaty seems to be set to protect a narrow slice of broadcasters, with significant market power in their home markets.

My co-panelists will discuss specific harms that this will have on the building of commons, and other damaging effects on global efforts to build an affordable and accessible knowledge system. This is unfortunate, and hence we urgently need text that provides for a mandatory list of limitations and exceptions, and not work with the soft language that is present right now. We have to accept that multilateral norm-setting at the international level sets the tone for countries to enact their own national legislations – indeed, before the Marakkesh treaty there were hardly any developing countries which had an expansive beneficial copyright exception for the visually impaired (except India - that I'm aware of), and look who the first few countries to ratify the treaty were – India, Argentina, El Salvador, Paraguay, Uruguay, etc – all developing countries leading to adopt this international standard.

The US delegation’s proposal, introduced yesterday, pushes the idea of limiting exclusive rights granted under this treaty to broadcasting organisations, so long as the countries provide adequate protection against piracy in other bodies of law. This seems like a promising idea – one that does not upend the legal theories of neighbouring rights and also shrinks the proposed model in the treaty that seeks to grant monopolistic property rights for a long and unclear period of time to powerful organisations – organisations that by their very nature and functions are chroniclers of our times and keepers of valuable cultural heritage.

At a seminar on this very treaty organised last month by KEI, Proffessor Bernt Hugenholtz flagged off the problematic justifications provided for increasing the strength of this neighbouring right. He said that the justifications should indicate a corresponding increase in cost of disseminating content. Should new exclusive rights be created for gradation-like increase in investment? He was not convinced that the costs had gone up significantly, and he also pointed out that this cost should not account for money spent on acquiring the rights to broadcast the content. Further, going back to the US proposal, the proposal recognises the persistent conceptual difficulties of distinguishing between signal protection and content protection. This very difficulty has been raised by many civil society organisations in the past, and more recently it cropped up at a discussion on the treaty in New Delhi, where both civil society organisations and representatives of broadcasters were present. Another practical challenge (that remains) will be to separate the computer network based operations from the non-computer network based operation; however, in this age, is it technically possible to do that?

To conclude, I think that fundamental concepts and terms need to be properly clarified to arrive at an understanding that is shared across all stakeholders; and a corresponding strengthening of limitations and exceptions is urgently needed.

Thank you.

For a complete list of speakers at the event, please click here.

For more details visit https://cis-india.org/a2k/blogs/cis-views-on-on-the-proposed-wipo-treaty-for-the-protection-of-broadcasting-organizations-at-side-event-organised-by-knowledge-ecology-international