Centre for Internet and Society

CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions

Amulya Purushothama and Nehaa Chaudhari — 2015-09-03T02:05:14Z

This is a submission made by Nehaa Chaudhari on behalf of the Centre for Internet and Society to the Expert Committee on the Broadcast Treaty constituted by the Ministry of Information and Broadcasting, Government of India. This submission compares provisions of the Proposed Treaty for the Protection of Broadcasting Organizations that is being deliberated at WIPO's SCCR at the moment, and provisions for the protection of rights of broadcasters that are already present in existing international instruments.

Special thanks to CIS intern, Amulya Purushothama for her research and writing on this subject.

I. Preliminary

1. This submission presents preliminary comments by the Centre for Internet and Society, India ("CIS") on the Proposed Treaty for the Protection of Broadcasting Organizations ("Broadcast Treaty") being deliberated by the Standing Committee on Copyright and Related Rights ("SCCR") of the World Intellectual Property Organization ("WIPO").

2. These comments are submitted pursuant to the request of the Hon'ble Secretary, Ministry of Information and Broadcasting [1], Government of India ("MI&B") at the First Meeting of the Expert Committee to Discuss the Treaty for Broadcasting Organizations at SCCR, WIPO ("Expert Committee"), held on 02 September, 2014 at New Delhi, India, which CIS attended as a member.

3. CIS commends the MI&B for its efforts at seeking inputs from various stakeholders prior to the framing of India's response to the Broadcast Treaty. CIS is thankful for the opportunity to be a part of the Expert Committee. It is a pleasure and privilege to provide this submission in furtherance of the feedback process initiated at the First Meeting of the Expert Committee on 02 September, 2014

II. Overview

4. This submission is divided into two substantive parts- the first part of this submission ("Part 1") presents an analysis on the need for the Broadcast Treaty and its Scope of Application; and the second part of this submission ("Part 2") discusses the shift from a 'signals based approach' to a 'rights based approach'. Part 1 presents an analysis on the need for such a treaty vis-à-vis the rights of broadcasters and authors already protected under the Berne Convention for the Protection of Literary and Artistic Works, 1886 ("Berne Convention"), the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 ("The Rome Convention"), the Brussels Convention Relating to the Distribution of Programme - Carrying Signals Transmitted by Satellite, 1974("Brussels Convention"), the WIPO Copyright Treaty, 1996("WCT"), the WIPO Performances and Phonograms Treaty,1996 ("WPPT"), and the Beijing Treaty on Audiovisual Performances, 2012 ("The Beijing Treaty"). In doing so, first, existing literature presented at the WIPO on the need for this treaty has been examined; second, provisions of the Broadcast Treaty have been compared with those in the earlier conventions; and third, the rights sought to be granted under the Broadcast Treaty have been examined to ascertain the need for possible additional lawyers of protection, when compared against those offered by earlier conventions.

5. Part 2 examines the Broadcast Treaty to identify a shift from a 'signals based approach' to a 'rights based approach' In so doing in this part first, discussions at the WIPO General Assembly of 2007 on the appropriateness of a 'signals based approach' have been examined to support the claim that a "signals based approach" is indeed appropriate; second, the possible costs of a rights based approach have been identified and third, various provisions of the Broadcast Treaty have been examined to demonstrate an inconsistency with a 'signals based approach'.

III. Detailed Comments

Part 1.The Need for a Broadcast Treaty

(a) Literature Review

6. The Draft Non Paper on the Broadcast Treaty circulated by the WIPO[2] and the background brief prepared by certain WIPO Member States[3] says that this treaty is necessary in order to update international rules to keep pace with technological developments.

7. A study sanctioned by the WIPO in 2010 enumerates the different ways in which signal piracy can take place and the harmful effects it has on revenues of the broadcasting organisations.[4] This study says that continued signal theft may result in dis-incentivizing broadcasting organisations from continuing their work which would in turn affect public interest adversely as important programmes would no longer be broadcast.[5]

8. The study also analyses how the Broadcast Treaty will positively affect different stakeholders like copyright holders and broadcasting organisations due to an additional layer of protection that it grants to them against signal theft and copyright infringement. [6]

9. However, the question of why the current protections provided to copyright holders and to broadcasting organisations under the Rome Convention, the Berne Convention and the Brussels Convention are inadequate when it comes to curbing unauthorized use of broadcast signals if they are implemented properly is still left unanswered. It has not been proved that the Broadcast Treaty fills any gaps left behind by the Berne Convention, the Rome Convention or the Brussels Convention.

10. The Broadcast Treaty is designed in essence, to combat problems with implementation that arose from the earlier treaties, [7] and it is submitted that this justification does not hold water as it is not so much an argument for a new treaty as it is for better implementation of the international conventions that already exist. Therefore, CIS is of the opinion that the reasons provided so far for the need for the Broadcast Treaty do not support the claim made by the broadcasters that the Broadcast Treaty is necessary.

(b) Comparative Analysis

11. In this part we will go through the protections granted in the Broadcast Treaty and compare them with equivalent provisions in other international treaties and a detailed table is provided at the end of this document for reference.

12. The nine focus areas we will concentrate on are, the right of performance, the right of fixation, the right of communication to the public, the right of retransmission, reproduction, distribution, the protection of rights management information, the term of protection, and limitations and exceptions to protections.

13. The argument here is simply that the protections offered under the Broadcast Treaty are either unnecessary as the underlying right is already protected in earlier international conventions or that they are excessive and offer a higher level of protection than previously offered by international conventions, and therefore must be justified.

14. Right of Performance: Under the proposed Broadcast Treaty, broadcasting organisations have an exclusive right to authorize performances of their signals for commercial purposes in places available to the public.[8] This right of public performance and of communication to the public of a performance with respect to dramatic or musical works rests with the copyright holder under the Berne Convention. [9] The Rome Convention states that "protection provided for the performers shall possibly include the prevention of broadcasting and communication to the public without their consent of their performance except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation".[10]Under the WPPT, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance.[11] And under the Beijing Treaty, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of (1) their unfixed performances except where the performance is already a broadcast performance and (2) their performances fixed in audiovisual fixations.[12]

15. CIS therefore submits that the right of performance has been adequately granted to authors/ performers/ copyright h1olders under the earlier international conventions and that the proposed Broadcast Treaty only extends an unnecessary additional layer of protection over the same content.

16. Right of Fixation: The proposed Broadcast Treaty grants broadcasting organisations the exclusive right to authorize fixations of their broadcasts.[13] As fixation is defined as an "embodiment of sounds or images or representations thereof from which they can be perceived reproduced or communicated through a device",[14] this would realistically cover content underlying the signal as well. The Rome Convention states that the protection provided for performers by this convention possibly includes the preventing of fixation without their consent of their unfixed performances".[15]Further broadcasting organisations already enjoy the right to authorize or prohibit the fixation of their broadcasts under the Rome Convention. [16] The Brussels Convention limits this obligation to prevent distribution of signals in case of derived signals that are taken from signals which have already been distributed by a distributor for whom the emitted signals were intended. Derived signals are signals whose technical characteristics are modified whether or not there have been one or more intervening fixations. This allows for some limitation on the right of fixation granted by the Rome Convention.[17] The WPPT provides performers with the right of authorizing the fixation of their unfixed performances.[18]This is mirrored in the Beijing Treaty. [19]

17. Hence CIS submits that the right of fixation has already been adequately covered by international conventions, the provisions of the proposed Broadcast Treaty simply extend this right to possibly cover the content underlying the signal, this would add an extra layer of protection as performers and authors already are vested with a right to fixation under earlier international conventions and treaties, further, the granting of this right to broadcasters could potentially grant them control of content underlying their signals as well, and for these reasons the proposed provisions must be adequately justified.

18. Right of Communication to Public: The proposed Broadcast Treaty defines "communication to the public" as "making the transmissions… audible or visible."[20] And guarantees the exclusive right to authorize the communication to the public of their broadcasts to broadcasting organisations through any means including over computer networks[21] The right of communication to the public has also been guaranteed to authors of literary and artistic workers who can authorize the broadcasting of their works and communication of their work to the public by any means including rebroadcasting under the Berne Convention. [22] The Rome Convention grants a similar right to broadcasting organisations when the broadcast is made in places accessible to the public for a fee, [23]however, the Brussels Convention limits this right and excludes situations where the signals emitted by or on behalf of the originating organization are intended for direct reception from the satellite by the general public.[24] Further, under the WCT, the right to authorize communication to the public is vested with authors of literary and artistic works,[25] and under the WPPT performers enjoy a similar right to authorize broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance. [26] In the Beijing Treaty, performers enjoy the exclusive rights of authorizing the broadcasting and communication to the public of both their unfixed performances except where the performance is already a broadcast performance.[27]And their performances are fixed in audiovisual fixations. [28]

19. Therefore, CIS submits that the right to communicate to the public and even the right to broadcast are adequately guaranteed by the existing international conventions already, the proposed Broadcast Treaty, by vesting a similar right in broadcasting organisations, merely adds an extra layer of protection for the same and doesn't actually fill any existing gaps in the current international intellectual property regime. Further the extension of the right to cover communications made over computer networks is an additional right provided for under the treaty and must be adequately justified.

20. Right of Retransmission: Under the proposed Broadcast Treaty, broadcasting organisations enjoy the exclusive right of retransmission of their broadcast by any means including rebroadcasting, by wire or over computer networks, includes simultaneous retransmission or otherwise [29] the right to authorize broadcasting of their works to the public including any communication to the public by wire or by rebroadcasting the broadcast of the work is vested with the authors of literary and artistic works in the Berne Convention, [30] The Rome Convention already guarantees that broadcasting organisations have the right to authorize and prohibit the rebroadcasting of their broadcasts[31] and the Brussels Convention [32]enjoins contracting states to "take adequate measures to prevent the distribution of any Programme-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended on or from its territory".

21. Therefore, CIS submits that the right of retransmission was already well vested with broadcasting organisations and authors and the expansion of this right to include simultaneous retransmission, transmission over computer networks, cablecasting etc. under the proposed Broadcast Treaty must be adequately justified.

22. Right of Reproduction: The proposed Broadcast Treaty vests the right to authorize direct and indirect reproduction in any manner or form of fixations of their broadcasts with the broadcasting organization.[33] The right to authorize reproduction of copyrighted work[34] and the right to adaptation and alteration [35] is granted to authors of literary and artistic works under the Berne Convention, the Rome Convention allows for the protections provided for performers to include the preventing of reproduction of a fixation of their performance if the original fixation is made without the consent or if the reproduction is made for purposes different from those for which consent was begot, the reproduction is made for purposes that aren't in accordance with Article 15, of a fixation of their performance,[36] it further provides for broadcasting organisations to enjoy the exclusive right to authorize or prohibit the reproduction of fixations made without their consent of their broadcasts[37] and for producers of phonograms to enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms,[38] performers enjoy the exclusive right of authorizing direct or indirect reproduction of their performances fixed in phonograms in any manner or form under the WPPT, [39] and producers of phonograms have the exclusive right of authorizing the direct or indirect reproduction of their phonograms in any manner or form under the WPPT.[40]And lastly under the Beijing Treaty performers enjoy the exclusive right authorizing the direct or indirect reproduction of their performances fixed in audiovisual fixations in any manner or form.[41]

23. CIS therefore submits that the right of reproduction has vested with authors and performers and producers of phonograms under several international treaties, the extension of this right to broadcasting organisations adds another layer of protection thereof, but fulfills no need or gap in the existing international intellectual property framework, further, the granting of this right to broadcasters could potentially grant them control over content underlying their signals as well. CIS therefore believes that the inclusion of this right must be adequately justified.

24. Right of Distribution: Under the proposed Broadcast Treaty, broadcasting organisations enjoy the exclusive right to make available to the public, the originals and copies of the fixations in such a way that they can access them from a time and place chosen by them individually, [42] in addition to making such a fixation available through sale or any other means of transfer of ownership.[43]The WCT vests the right of distribution of artistic or literary works with their authors,[44] performers enjoy an equivalent right under the WPPT, [45] as do producers of phonograms,[46] and lastly, performers enjoy the exclusive right of distribution of their performances in audiovisual fixations under the Beijing Treaty. [47]

25. Therefore, CIS submits that the right of distribution has been adequately protected by earlier conventions, the Broadcast Treaty, by extending this right to broadcasting organisations adds another layer of protection for the same right and doesn't necessarily fill any gaps in the international intellectual property framework.

26. Protection of Rights Management Information("RMI"): The proposed Broadcasting Treaty defines RMI as any information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6.[48] These RMI could be attached to 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) making available of a fixed broadcast or 5) a copy of a fixed broadcast.[49] One alternative provides for an obligation on contracting parties to provide for "adequate and effective legal protection against unauthorized(a) decryption of an encrypted broadcast or circumvention of any technological protection measure ("TPM") having the same effect as encryption, (b) manufacture , importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast and (c) removal or alteration of any electronic RMI used for the application of the protection of broadcasting organization."[50] Another alternative provides for the same protection only against "(a) unauthorized decryption of an encrypted broadcast, (b) removal or alternation of any electronic RMI for the application of the protection of the broadcasting organisations."[51] Further one alternative also provides that states must ensure "adequate legal protection and effective legal remedies against the circumvention of effective technological measures used by broadcasting organisations in connection with the exercise of their rights under this treaty that restrict unauthorized acts in respect of their broadcasts" [52]. While another provides for this in addition to a provision that states "without limiting the forgoing, contracting parties shall provide legal protection against (i) unauthorized decryption of an encrypted broadcast signal and (ii) removal or alternation of any electronic RMI relevant for the application of the protection of the broadcasting organisations." [53]

27. The definition of RMI has been adopted from earlier conventions such as WCT[54] and WPPT[55] except for the inclusion of RMI attached to pre-broadcast signal. Under the WCT [56] and the WPPT[57], contracting parties have an obligation to provide for legal protection and effective legal remedies against circumvention of effective technological measures used by authors or performers or producers of phonograms in connection with exercise of their rights under these treaties to restrict the unauthorized and unlawful use of their work. Under the WCT[58] and the WPPT,[59] contracting parties have an obligation to provide for "adequate and effective legal remedies against any person knowingly performing (i) removal or alteration of any electronic RMI without authority or (ii) distribution or import for distribution or broadcast or communication to the public without authority works or copies of works knowing that electronic RMI has been removed or altered without authority knowing or with respect to civil remedies having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right" under WCT, WPPT or the Berne Convention. Similar provisions are made for the protection of RMI attached to audiovisual fixations under the Beijing Treaty [60] under Article 16(2) which defines RMI as information that identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation.

28. CIS therefore submits that the provisions proposed in the Broadcast Treaty provide for a protection of RMI that is significantly higher than protection of RMI in earlier convention, not only does it now extend to pre broadcast signals, retransmission, transmissions following fixation of the broadcast making available of a fixed broadcasts or a copy of a fixed broadcasts, it also exists to decryption and encryption of these signals. Therefore, It is important that such extended protections need to be adequately justified.

29. Term of Protection: The proposed Broadcast Treaty provides for a term of protection that lasts for a minimum of 20-50 years computed from the end of the year in which the broadcast signal was broadcast.[61] The Berne Convention provides for a term of protection "life of the author and fifty years after his death" in case of literary and artistic works and 50 years after the work has been made available to the public or in case it hasn't been made available to public, fifty years after the making of the work in case of cinematographic works. [62] Under the Rome Convention the term of protection is calculated as a minimum of 20 years from when the broadcast first took place for broadcasts.[63] Under the WPPT, the term of protection granted to performers is at least 50 years from the end of the year in which the performance was fixed in a phonogram. The term of protection granted for producers is at least 50 years calculated from the end of the year in which the phonogram was published, if unpublished, 50 years from end of the year in which fixation of phonogram was made.[64] And under the Beijing Treaty, term of protection to be granted to performers is at least until the end of a period of 50 years from the end of the year in which the performance was fixed. [65]

30. CIS therefore submits that the term of protection envisioned under the Broadcast Treaty extends protection to copyrighted works as it is not calculated from when the first broadcast of the signal took place, but from when the last broadcast took place, this could potentially lead to ever-greening of copyright protections as broadcasting organisations could simply renew their rights by simply broadcasting their signals again and again. Clearly terms of protection already envisioned under other international conventions protected any content underlying the signal adequately; this provision simply provides an additional layer of protection and doesn't really fill any gaps in the current international intellectual property framework.

31. Limitations and Exceptions: The proposed Broadcast Treaty provided for exceptions and limitations for" (i) private use, (ii) use of short excerpts in connection with reporting of current events , (iii) use solely for purposes of education and scientific research and (iv) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts."[66] And for the same or other limitations as are applied in connection with copyrighted works as long as they are confined to special cases that do not conflict with normal exploitation and do not unreasonably prejudice the legitimate interests of the broadcasting organization. Under an alternative, the limitations and exceptions for protection of broadcasting signals can be similar to those for protection of literary and artistic works, provided they are confined to certain special cases that do not conflict with normal exploitation of work that doesn't unreasonably prejudice the legitimate interests of the broadcasting organization.[67] Under a further alternative, limitations and exceptions may extend to all this but further, exceptions of (a) private use, (b) excerpts in connection with reporting of current events (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts , (d) solely for the purpose of teaching or scientific research, (e) use to promote access by persons with impaired sight or hearing, learning disabilities or other special needs, (f) use by libraries , archivists or educational institutions to make publicly available copies of works that are protected by any rights of the broadcasting organization for preservation, education or research And (g) use of any kind in any manner or form of any part of a broadcast where the program or any part of it which is subject of the transmission is not protected by copyright or any related right, is presumed to constitute special cases that don't conflict with normal exploitation of the work and don't unreasonably prejudice the legitimate interests of the rights holder.[68]

32. The Berne Convention first laid down the "three step test" which stated that "countries of the Union can choose to permit the reproduction of such works in special cases, provided that such reproduction doesn't conflict with a normal exploitation of the work and doesn't unreasonably prejudice the legitimate interests of the author"[69]. Under the Rome Convention these exceptions could include (a) private use, (b) use of short excerpts in connection with reporting of current events, (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts and d) use solely for the purposes of teaching or scientific research, limitations on protection of copyright in literary and artistic works or compulsory licenses to an extent that is compatible with this convention keeping in mind the three step test [70] Under the Brussels Convention limitations and exceptions to protection of signals include (i) short excerpts of the programme consists of reports of current events , but only to the extent justified by the informatory purpose of such excerpts, (ii) quotations, or short excerpts of the programme carried by the emitted signal, provided that such quotations are compatible with fair practice and are justified by the informatory purpose of such quotations or (iii) the distribution is solely for the purpose of teaching including teaching in the framework of adult education or scientific research in a developing country.[71] Further, contracting states are not limited from applying domestic law to prevent abuses of monopoly in this regard.[72] The WCT follows the three step test formula for literary and artistic work[73] and the WPPT allows for similar limitations for protection of performers and producers of phonograms keeping in mind the three step test.[74] Similar provisions exist under the Beijing Treaty as well.[75]

33. CIS therefore submits that the limitations and exceptions to protections under the Broadcast Treaty could possibly be narrower than those in other international conventions. CIS is of the opinion that such a narrowing of limitations and exceptions must be justified adequately.

34.

Table Comparing Protections Provided under Broadcast Treaty with Protections Provided in Earlier International Conventions

Protection	Proposed Broadcast Treaty	Berne Convention, 1884	Rome Convention, 1961	Brussels Convention, 1974	WIPO Copyright Treaty, 1996	WIPO Performances and Phonograms Treaty, 1996	Beijing Treaty on Audiovisual Performances, 2012
Performance	Article 9 (1) (ii) (Alternative A), broadcasting organisations have an exclusive right to authorize performances of their signals for commercial purposes in places available to the public.	Article11, the right of public performance and of communication to the public of a performance with respect to dramatic or musical works rests with the copyright holder	Article 7(1) (a), protection provided for the performers shall include the possibility of preventing the broadcasting and communication to the public without their consent of their performance except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation.			Article 6 (i), Performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance	Article 6(i) performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance. Article 11, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations.
Fixation	Article 9 (1) (i) (Alternative B), broadcasting organisations have the exclusive right to authorize fixation of their broadcasts. Article 5(e) (Alternative A) and 5(f) (Alternative B), Fixation is defined as an embodiment of sounds or images or representations thereof from which they can be perceived, reproduced or communicated through a device. This would realistically cover content in addition to the signal.		Article 7(1) (b), the protection provided for performers by this convention includes the possibility of preventing the fixation without their consent of their unfixed performances. Article 13(b). Broadcasting organisations enjoy the right to authorize or prohibit the fixation of their broadcasts.	Article 2(3), the obligation to prevent distribution of signals by any distributor for whom the signal emitted to or pasting through the satellite is not intended will not apply for the distribution of derived signals that are taken from signals which have already been distributed by a distributor for whom the emitted signals were intended. Derived signals are signals whose technical characteristics are modified whether or not there have been one or more intervening fixations. (Article 1(v)).		Article 6(ii), performers enjoy the exclusive right of authorizing the fixation of their unfixed performances.	Article 6(ii), performers enjoy the exclusive right of authorizing the fixation of their unfixed performances.
Communication to the Public	Article 9(1) (iv) (Alternative B), broadcasting organisations have the exclusive right to authorize the communication to the public of their broadcasts. Article 5 (e) (Alternative B), communication to the public can be defined as "making the transmissions… audible or visible."	Article 11 bis, authors of literary and artistic works enjoy the exclusive right of authorizing the broadcasting of their works and of communication thereof to the public by any means of wireless diffusion of signs, sounds or images. And rebroadcasting.	Article 13(d), Broadcasting organisations enjoy the right to authorize or prohibit the communication to the public of their broadcasts if it is made in places accessible to the public for a fee.	Article 3, the convention doesn't apply when signals emitted by or on behalf of the originating organization are intended for direct reception from the satellite by the general public.	Article 8, authors of literary and artistic works enjoy the exclusive right of authorizing any communication to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them	Article 6 (i), performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance	Article 6(i) performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance. Article 11, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations.
Retransmission	Article 5 (d) (Alternative A) read with Article 9(1) (i) (Alternative A) and 9(1) (iii) (Alternative B), broadcasting organisations enjoy the exclusive right of retransmission of their broadcast by any means including rebroadcasting , by wire or over computer networks, includes simultaneous retransmission or otherwise	Article 11 bis, authors of literary and artistic works enjoy the exclusive right of authorizing the broadcasting of their works… to the public, and any communication to the public by wire or by rebroadcasting of the broadcast of the work.	Article 13(a), Broadcasting organisations enjoy the right to authorize or prohibit the rebroadcasting of their broadcasts.	Article 2(1), contracting states are required to take adequate measures to prevent the distribution of any programme-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended on or from its territory.
Reproduction	Article 9(1) (ii) (Alternative B), broadcasting organisations have the exclusive rights to authorize direct and indirect reproduction in any manner or form of fixations of their broadcasts.	Article 9, the right of reproduction is vested with the authors of the copyrighted work. Article 12, the right of adaptation and other alteration is vested in the copyright holder/ author.	Article 7 (1) (c), the protection provided for performers under this convention includes the possibility of preventing the reproduction of a fixation of their performance if the original fixation is made without their consent or if the reproduction is made for purposes different from those for which consent was begot, the reproduction is made for purposes that aren't in accordance with Article 15, of a fixation of their performance. Article 13(c), Broadcasting organisations enjoy the right to authorize or prohibit the reproduction of fixations made without their consent of their broadcasts. Articles 10, producers of phonograms enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.			Article 7, performers enjoy the exclusive right of authorizing direct or indirect reproduction of their performances fixed in phonograms in any manner or form. Articles 11, producers of phonograms have the exclusive right of authorizing the direct or indirect reproduction of their phonograms in any manner or form.	Article 7, performers enjoy the exclusive right authorizing the direct or indirect reproduction of their performances fixed in audiovisual fixations in any manner or form.
Distribution	Article 9 (1) (v) (Alternative B), broadcasting organisations enjoy the exclusive right to make available to the public, the original and copies of fixations of their broadcasts in such a way that the members of the public may access them from a place and time individually as chosen by them. Article 9 (1) (vii) (Alternative B), they have the exclusive right to make available to the public of the originals and copies of their broadcasts through sale or other transfer of ownership.				Article 6, Authors of literary and artistic works enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfers of ownership. Article 8, authors of literary and artistic works enjoy the exclusive right of authorizing any communication to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.	Article 8, performers enjoy the exclusive right of authorizing the making available to the public of the original and copies of their performances fixed in phonograms through sale or other transfer of ownership. This doesn't affect the freedom of contracting parties to determine conditions to exhaustion of this right after the first sale or other transfer of ownership (Article 8 (ii)). Article 10, performers have the exclusive right to authorize the making available to the public of their performances fixed in phonograms , by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them. Article 12 and 14, this right extends to producers of phonograms.	Article 8 (1), performers enjoy the exclusive rights of authorizing the making available to the public of original and copies of their performances fixed in audiovisual fixations through sale or other transfer of ownership. Article 8(2) contracting parties have the freedom to determine conditions under which exhaustion of this right applies after first sale or other transfer of ownership of the original or a copy of a fixed performance with the authorization of the performer.
rights management information	Article 5, Alternative A to Article 5 (h), "rights management information" ("RMI") is defined as information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6. Article 13(2), RMI is any information of the abovementioned nature that is associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) making available of a fixed broadcast or 5) a copy of a fixed broadcast. Article 12, Alternative A1, contracting parties shall provide adequate and effective legal protection against unauthorized(a) decryption of an encrypted broadcast or circumvention of any technological protection measure ("TPM") having the same effect as encryption, (b) manufacture , importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast and (c) removal or alteration of any electronic RMI used for the application of the protection of broadcasting organization. Alternative A2, contracting parties shall provide adequate and effective legal protection against (a) unauthorized decryption of an encrypted broadcast, (b) removal or alternation of any electronic RMI for the application of the protection of the broadcasting organisations. Alternative B 1 and B2, contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures used by broadcasting organisations in connection with the exercise of their rights under this treaty that restrict unauthorized acts in respect of their broadcasts. Alternative B2 (2), without limiting the forgoing, contracting parties shall provide legal protection against (i) unauthorized decryption of an encrypted broadcast signal and (ii) removal or alternation of any electronic RMI relevant for the application of the protection of the broadcasting organisations. Article 13 (1), contracting parties must provide for legal remedies against a violation of this right done knowingly and without proper authority.				Article 12(2), "rights management information" is defined in a similar way as it is in the Broadcast Treaty, excluding however, the RMI attached to pre-broadcast signal. Article 11, contracting parties have an obligation to provide for legal protection and effective legal remedies against circumvention of effective technological measures used by the authors in connection with exercise of their rights. Article 12 (1), contracting parties shall provide adequate and effective legal remedies against any person knowingly performing (i) removal or alteration of any electronic RMI without authority or (ii) distribute or import for distribution or broadcast or communicate to the public without authority works or copies of works knowing that electronic RMI has been removed or altered without authority knowing or with respect to civil remedies having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right under WCT or the Berne Convention.	Article 19(2): "rights management information" is defined in a similar way as it is in the Broadcast Treaty. Article 18, contracting parties are obligated to provide adequate legal protection and effective legal remedies against circumvention of effective technological measures that are used by performers or producers of phonograms in connection with their rights under this treaty. Article 19, contracting parties shall provide for adequate and effective legal remedies against any person knowingly (i) removing or altering the electronic RMI without authority or (ii) distributing, importing for distribution, broadcasting or communicating or making available to public without authority performances, copies of fixed performances or phonograms knowing that electronic RMI has been removed or altered without authority knowing, or with respect to civil remedies, having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right covered by this treaty.	Article 16(2): "rights management information" which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation. Article 15, contracting parties have a duty to provide for adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers in connection with the exercise of their rights under this treaty and that restricts acts in respect of their performances which are not authorized by the performers concerned or permitted by the law, Article 16 (1), contracting parties shall provide adequate and effective legal remedies against any person knowingly (i) removing or altering any electronic EMI without authority (ii) distributing, importing for distribution, broadcasting , communication or making available to public, without authority, performances or copies of performances fixed in audiovisual fixations knowing that electronic rights management information has been removed or altered without authority, knowing or with respect to civil remedies, having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right covered by this treaty.
Term of Protection	Article 11 (Alternative A), the term of Protection lasts for a minimum of 20-50 years computed from the end of the year in which the broadcast signal was broadcast.	Article 7 (1), term of protection is the life of the author and fifty years after his death. In case of cinematic works, 50 years after the work has been made available to the public or in case it hasn't been made available to public, fifty years after the making of the work.	Article 14(c), The term of protection is calculated as a minimum of 20 years from when the broadcast first took place for broadcasts. It shall last for a period of 20 years computed from the end of the year in which the performance took place for performances not incorporated in phonograms (Article 14 (b)), and Article 14(c), for twenty years from the end of the year in which the fixation was made for phonograms and performances incorporated therein,		Article 9, in respect of photographic works, the contracting parties shall not apply the provisions of Article 7(4) of the Berne Convention	Article 17, the term of protection granted to performers is at least 50 years from the end of the year in which the performance was fixed in a phonogram. The term of protection granted for producers is at least 50 years calculated from the end of the year in which the phonogram was published, if unpublished, 50 years from end of the year in which fixation of phonogram was made.	Article 14, term of protection to be granted to performers under this treaty shall last at least until the end of a period of 50 years from the end of the year in which the performance was fixed.
Limitations and Exceptions	Article 10, Alternative A, contracting states may provide for exceptions for (i) private use, (ii) use of short excerpts in connection with reporting of current events , (iii) use solely for purposes of education and scientific research and (iv) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts. And for the same or other limitations as are applied in connection with copyrighted works as long as they are confined to special cases that do not conflict with normal exploitation and do not unreasonably prejudice the legitimate interests of the broadcasting organization. Alternative B and C, contracting parties may provide for the same kinds of limitations or exceptions for protection of broadcasting organisations as they provide for in protection of copyright in literary and artistic works and protection of literary works. They shall confine limitations to rights provided for in this treaty to certain special cases that do not conflict with normal exploitation of work that doesn't unreasonably prejudice the legitimate interests of the broadcasting organization. Alternative C(2)(a), exceptions of (a) private use, (b) excerpts in connection with reporting of current events (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts , (d) solely for the purpose of teaching or scientific research, (e) use to promote access by persons with impaired sight or hearing, learning disabilities or other special needs, (f) use by libraries , archivists or educational institutions to make publicly available copies of works that are protected by any rights of the broadcasting organization for preservation, education or research. And (g) use of any kind in any manner or form of any part of a broadcast where the program or any part of it which is subject of the transmission is not protected by copyright or any related right, are presumed to constitute special cases that don't conflict with normal exploitation of the work and don't unreasonably prejudice the legitimate interests of the rights holder.	Article 9, countries of the union can choose to permit the reproduction of such works in special cases, provided that such reproduction doesn't conflict with a normal exploitation of the work and doesn't unreasonably prejudice the legitimate interests of the author.	Article 15 (1), contracting states may provide for exceptions to the protections guaranteed under this convention as regards (a) private use, (b) use of short excerpts in connection with reporting of current events, (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts and d) use solely for the purposes of teaching or scientific research. Article 15 (2), contracting states may provide for limitations that mirror limitations on protection of copyright in literary and artistic works or compulsory licenses to an extent that is compatible with this convention.	Article 4, the contracting states are not obliged to prevent the distribution of signals by a distributor for whom the signal is not intended if (i) it carries short excerpts of the programme carried by the emitted signal, consisting of reports of current events , but only to the extent justified by the informatory purpose of such excerpts, (ii) quotations, or short excerpts of the programme carried by the emitted signal, provided that such quotations are compatible with fair practice and are justified by the informatory purpose of such quotations or (iii) the distribution is solely for the purpose of teaching including teaching in the framework of adult education or scientific research in a developing country. Further, under Article 7, contracting states are not limited from applying domestic law to prevent abuses of monopoly in this regard.	Article 10, contracting parties may provide for limitations or exceptions to rights granted to authors under this treaty in special cases that do not conflict with normal exploitation of work and do not unreasonably prejudice the legitimate interests of the author via national legislation.	Article 16, contracting parties can provide for the same kinds of limitations or exceptions with regard to protection of performers and producers of phonograms as they provide for in their national legislation to the protection of copyright in literary and artistic works. Article 16 (ii), contracting parties shall confine limitations and exceptions to rights to certain special cases which do not conflict with a normal exploitation of the performance or phonogram and do not unreasonably prejudice the legitimate interests of the performer or of the producer of the phonogram.	Article 13(1), contracting parties may provide for the same kinds of limitations and exceptions with regard to protection of performers as they provide for in their national legislation in connection with the protection of copyright in literary and artistic works. Article 13(2), these limitations or exceptions must be confined to certain special cases which do not conflict with normal exploitation of the performance and do not unreasonably prejudice the legitimate interests of the performer.

35. In addition to this, the proposed Broadcast Treaty, broadcasting/cablecasting organisations now have certain rights that they find no parallel in other international conventions such as rights to pre broadcasting signals[76] etc., the necessity for the inclusion of these rights is yet to be proven.

(c) Analysis and Conclusions

36. CIS is of the opinion that that a higher level of protection is offered to the broadcasting organisations in the Broadcasting Treaty simply because they now have rights to authorize public performances, rights to authorize direct and indirect reproduction of their fixations, right to communication to the public and right to resale, rights that fall under the scope of rights already granted to copyright holders in the Berne Convention. [77] Therefore anyone hoping to use copyrighted material that has been broadcast will have to obtain authorization from the broadcasting organisations in addition to the author/performer.[78]

37. It can be observed from the above discussion that certain rights of broadcasting organisations with regard to signal theft are already protected under the Berne Convention, the Rome Convention and the Brussels Convention. Therefore, broadcasting organisations and copyright holders already have recourse under these conventions to combat certain kinds of signal theft.

38. Hence, CIS believes that any justification provided for the proposed Broadcast Treaty must explain why these provisions are not enough either through impact assessment or by enumerating in clear terms why additional protections are necessary for protection against signal theft, neither of which has been done by any study put forward by the WIPO to date.

39. CIS is therefore of the opinion that the WIPO should undertake a further impact assessment study or a theoretical report outlining the need for the treaty and justifying the introduction of an additional layer of protections against signal theft.

Part 2: Shift from Signals Based Approach to Rights Based Approach

(a) Need for a Signals-Based Approach

40. The WIPO General Assembly decided in 2007 that the focus of the Broadcast Treaty should be the piracy of signals which harms broadcasting organisations as they invest heavily in the production of these signals and therefore have a legitimate interest in the issue of unauthorized use of these signals. [79]

41. It further decided that the protections granted by the Broadcast Treaty should not extended to the content carried by the signals as this would amount to granting those rights to the broadcasting organisations that have already been granted to the copyright holders under the Berne Convention and the Rome Convention.[80] This was done keeping in mind especially that protections granted by the Broadcast Treaty should not extend to orphan works or works that are already in the public domain so as to not curb freedom of expression. [81]

42. CIS believes that the decision to frame the treaty along a signals based approach was taken keeping in mind the pitfalls of a rights based approach and with an intention to avoid harming legitimate and fair use of copyrighted material and is therefore, a well-considered decision which must be adhered to.

(b) Costs of a Rights Based Approach

43. The granting of these rights could act against public interest and curb freedom of speech.[82]

44. The study sanctioned by WIPO states that the Broadcast Treaty due to its limitations on retransmission of signals, reproduction, distribution, fixation and post fixation uses protects the methods of content transmission regardless of the content but doesn't adhere strictly to a signals based approach as the language of the treaty focuses on the rights of the broadcasting organization that often goes above and beyond mere signal theft. [83]

45. CIS believes that the direct result of this is that it will increase costs for the acquisition of the material underlying the signal. It will disadvantage those who would use the content underlying the broadcast signal for legal purposes such as fair use or personal reproduction because they will not have to approach not just the author/ the performer/ the copyright holder, but also the broadcasting organization unless a national law is put in place protecting the rights of the audience/consumer.[84]

46. CIS therefore believes that the shift to a rights based approach is harmful to legitimate use of copyrighted works and free speech and must be avoided in the framing of the treaty.

(c) Shift to a Rights Based Approach

47. While it could be argued that the broadcast treaty still continues the signals based approach as mandated by the 2007 WIPO General Assembly because the term "broadcast" is defined in Article 5 (b) (Alternative A) of the treaty as transmission of a signal, or transmission of a set of signals by wireless carrying a specific program for reception by the general public excluding signals over computer networks (Alternative to (b)). [85]CIS believes that there is in fact a palpable shift away from the signals based approach to an approach focused on providing broadcasters with exclusive rights in the language of the treaty.

48. The fact that "communication to the public" could be defined as "making the transmissions… audible or visible." as per Article 5 (e) (Alternative B) indicates an approach that focuses on content rather than mere signals. [86] Further, the term "embodiment" would realistically cover content as well as signal according to Article 5(e) of Alternative A and 5(f) of Alternative B. [87]

49. Even further, the treaty goes on to grant rights to broadcasting organisations that fall within the scope of rights are already granted to the copyright holder, such as the right of direct or indirect reproduction of the copyrighted work[88] and right of authorizing performances[89].

50. Furthermore, the Broadcast Treaty extends these rights with regard to term of protection[90] and with regard to works that are already in the public domain or orphan works.[91]

51. CIS therefore believes that the subtle shift in the language of the treaty indicates a shift from a signals based approach to a rights based approach, one that is not only against the mandate of the 2007 General Assembly, but also one that provides broadcasters with an extra layer of protection through these rights that were so far only granted to authors of the content under the Berne Convention and the Rome Convention.

52. As proved earlier[92] no well justified reasons have been provided so far for the necessity of these provisions or indeed this treaty, and therefore CIS believes that the WIPO consider conducting impact assessment studies and releasing a report outlining in clear terms why the provisions that currently exist in the earlier conventions have failed to protect against signal theft and why it is necessary for the Broadcast Treaty to contain this additional layer of protection granted through these rights to protect against signal piracy.

53. For all these reasons, CIS believes that the WIPO should restrict the proposed Broadcast Treaty to a signals based approach.

IV. Concluding Observations

54. The Centre for Internet and Society welcomes the opportunity to comment on the proposed Broadcast Treaty and commends the Ministry of Human Resource Development, Government of India for its initiative in seeking inputs from Stakeholders.

55. To that end, reiterating its commitment to the values of access to knowledge, freedom of information, equality, justice, protection of general public interest and safeguarding India's national interest at the international level, the Centre for Internet and Society presents the following concluding observations:

a) That the proposed Broadcast Treaty be restricted entirely to a signal based approach, in consonance with the mandate of the 2007 WIPO General Assembly.

b) That a Preamble be inserted forthwith to clearly lay out the intention of the parties and the scope, objectives and application of this treaty.

c) That certain definitions be suitably modified, as discussed in the preceding sections of these comments.

d) That the rights of broadcasting organizations be suitably modified so as to not curtail access to information.

e) That the limitations and exceptions be made mandatory and not subject to the same tests as those understood in copyright law.

f) That technological protection measures be deleted, so as to ensure the protection of the public domain.

The Centre for Internet and Society would be willing discuss these submissions with the Ministry of Information and Broadcasting, the Ministry of Human Resource Development and the Department of Industrial Policy and Promotion, Government of India; supplement these with further submissions if necessary and offer any other assistance towards the efforts at developing a Broadcast Treaty that would be most beneficial to the protection and promotion of access to knowledge and India's national interests.

[1] See ¶ 12 of the Amended Minutes of the First Meeting of Expert Committee to discuss draft treaty for Broadcasting Organization at SCCR, WIPO held on 2.9.2014 (sic.).

[2] See the Draft Non-Paper on the WIPO Treaty on the Protection of Broadcasting Organisations, Available at: http://www.wipo.int/edocs/mdocs/copyright/fr/sccr_s1/sccr_s1_www_75352.doc (Last Accessed: 19/11/14).

[3] See Also WIPO Background Brief, Available at: http://www.wipo.int/pressroom/en/briefs/broadcasting.html (Last Accessed: 19/11/14).

[4] WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part II: Unauthorized Access to Broadcast Content- Cause and Effects: A Global Overview, SCCR 20^th Session, Geneva June 21-24, 2010, SCCR/20/2Rev.

[5] WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[6] WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[7] WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010, SCCR/21/2; the study posits the idea that it would be easier for broadcasters to enforce their rights and catch instances of unauthorized use than it would be for individual copyright holders as a justification.

[8] Article 9 (1) (ii) (Alternative A), the Broadcast Treaty.

[9] Article11, the Berne Convention for the Protection of Literary and Artistic Works, 1886 ("Berne Convention").

[10] Article 7(1) (a), International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 ("Rome Convention").

[11] Article 6(i), the WIPO Performances and Phonograms Treaty,1996 ("WPPT")

[12] Article 6 (i) and Article 11, the Beijing Treaty on Audiovisual Performances, 2012 ("The Beijing Treaty").

[13] Article 9 (1) (i) (Alternative B). the Broadcast Treaty.

[14] Article 5(e) (Alternative A) and 5(f) (Alternative B),

[15] Article 7(1) (b), the Rome Convention.

[16] Article 13(b), the Rome Convention.

[17] Article 2(3) read with Article 1(v), the Brussels Convention Relating to the Distribution of Programme - Carrying Signals Transmitted by Satellite, 1974("Brussels Convention").

[18] Article 6(ii), WPPT.

[19] Article 6(ii), the Beijing Treaty.

[20] Article 5 (e) (Alternative B), the Broadcast Treaty.

[21] Article 9(1) (iv) (Alternative B), the Broadcast Treaty.

[22] Article 11 bis, the Berne Convention.

[23] Article 13(d), the Rome Convention.

[24] Article 3, the Brussels Convention.

[25] Article 8, WIPO Copyright Treaty, 1996 ("WCT").

[26] Article 6 (i), WPPT.

[27] Article 6 (i), the Beijing Treaty.

[28] Article 11, the Beijing Treaty.

[29] Article 5 (d) (Alternative A) read with Article 9(1) (i) (Alternative A) and 9(1) (iii) (Alternative B), the Broadcast Treaty.

[30] Article 11 bis, the Berne Convention.

[31] Article 13(a), the Rome Convention

[32] Article 2(1), the Brussels Convention

[33] Article 9(1) (ii) (Alternative B), the Broadcast Treaty.

[34] Article 9, the Berne Convention.

[35] Article 12, the Berne Convention.

[36] Article 7 (1) (c), the Rome Convention.

[37] Article 13(c), the Rome Convention.

[38] Article 10, the Rome Convention.

[39] Article 7, WPPT.

[40] Article 11, WPPT.

[41] Article 11, the Beijing Treaty.

[42] Article 9 (1) (v) (Alternative B), the Broadcast Treaty

[43] Article 9 (1) (vii) (Alternative B), the Broadcast Treaty

[44] Article 6, WCT.

[45] Article 8, WPPT.

[46] Article 12, Article 14, WPPT.

[47] Article 8,the Beijing Treaty

[48] Article 5, Alternative A to Article 5 (h), the Broadcast Treaty.

[49] Article 13(2), the Broadcast Treaty.

[50] Article 12, Alternative A1, the Broadcast Treaty.

[51] Article 12, Alternative A2, the Broadcast Treaty.

[52] Article 12, Alternative B 1 and B2, the Broadcast Treaty.

[53] Article 12, Alternative B2 (2), the Broadcast Treaty.

[54] Article 12(2), WCT.

[55] Article 19(2), WPPT.

[56] Article 11, WCT.

[57] Article 18, WPPT.

[58] Article 12 (1), WCT.

[59] Article 19, WPPT.

[60] Article 15, Article 16, the Beijing Treaty.

[61] Article 11 (Alternative A), the Broadcast Treaty.

[62] Article 7 (1), the Berne Convention.

[63] Article 14(c), the Rome Convention.

[64] Article 17, WPPT.

[65] Article 14, the Beijing Treaty.

[66] Article 10, Alternative A, the Broadcast Treaty.

[67] Article 10, Alternative B, the Broadcast Treaty.

[68] Article 10, Alternative C, the Broadcast Treaty.

[69] Article 9, the Berne Convention.

[70] Article 15, the Rome Convention.

[71] Article 4, the Brussels Convention.

[72] Article 7, the Brussels Convention.

[73] Article 10, WCT.

[74] Article 16, WPPT.

[75] Article 13, the Beijing Treaty.

[76] Article 9 (1) (iii) (Alternative A) of the Broadcast Treaty

[77] See Articles 9, 11,11bis, 12 and 14 of The Berne Convention.

[78] That this is an additional layer of protection has been conceded by the WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[79] WIPO General Assembly, 33^rd (16^th Extraordinary Session Geneva, September 25- October 2, 2006, WO/GA/33/10, p.38. Further see WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[80] Id, Also See Further, Revised Consolidated Text for a Treaty on the Protection of Broadcasting Organisations, Standing Committee on Copyright and Related Rights, 12^th Session, Geneva , November 17-19,2004, SCCR/12/2, p. 15.

[81] Id. p. 35, see further, WIPO General Assembly, 34^th (18^th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56; Elements for a Draft Treaty on the Protection of Broadcasting Organisations, Standing Committee on Copyright and Related Rights, 22 ^nd Session, Geneva June 15-24, 2011,SCCR/22/11,p.4; and Proposal on the Draft Treaty on the Protection of Broadcasting Organization, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14-15, 2011, WIPO/CR/CONSULT/GE/11/2/2, p.5.

[82] Thomas Dreier, "Reflections on the Draft WIPO Broadcasting Treaty and Its Impact on Freedom of Expression," e-Copyright Bulletin, July-September, 2006. UNESCO

[83] "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[84] "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[85] Article 5(b) (Alternative A), (Alternative to (b)) of the Proposed WIPO Treaty for Protection of Broadcasting Organisations Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf (Hereafter, the Broadcast Treaty).

[86] Article 5(e) (Alternative B) of the Broadcast Treaty.

[87] Article 5(e) (Alternative A) and 5(f) (Alternative B) of the Broadcast Treaty.

[88] Article 9 (1) (ii) (Alternative B) of the Broadcast Treaty.

[89] Article 9 (1) (ii) (Alternative A) of the Broadcast Treaty.

[90] The term of protection set out would last for a minimum of 20-50 years from the end of the year in which the broadcast signal was broadcast under Article 11(Alternative A) of the Broadcast Treaty. This basically means that broadcasting organisations can renew their rights by simply re broadcasting the signals and thereby never allowing the content to come under public domain.

[91] Proposal on the Draft Treaty on the Protection of Broadcasting Organization, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14-15, 2011, WIPO/CR/CONSULT/GE/11/2/2, p.5,p.8.

[92] See Part 1.1.

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29th Session of the WIPO SCCR: Statement on the Limitations and Exceptions for Education, Teaching, Research Institutions and Persons with Disabilities

nehaa — 2014-12-20T13:40:19Z

At the 29th session of WIPO's SCCR, the Chair, Martin Moscoso, requested NGOs to send in their statements on limitations and exceptions for education, teaching, research institutions and persons with disabilities in writing, to be placed on the record. Nehaa Chaudhari, on behalf of the Centre for Internet and Society (CIS) sent in this written statement.

Thank you very much, Mr. Chair.

As we have always maintained in the past sessions of this Committee, the Centre for Internet and Society strongly believes that everyone, regardless of borders and barriers, either physical, or those created by time, distance and costs should have access to knowledge and education.

To that end, we strongly support the proposal made by India, earlier, on continuing constructive work in this area. We also welcome the suggestion by the Indian delegation on a synthesis of these issues (facilitated by an expert, through the Chair), so that we can have a constructive discussion on these issues.

Mr. Chair, we are very mindful of the fact that there exists a very real, very demonstrable need for limitations and exceptions for education, teaching and research institutions and also for the benefit of persons with disabilities. There is also an equally crucial need to ensure that these limitations and exceptions are open ended and are appropriate for the digital environment; a conversation we believe that is imperative for Member Nations to take forward, definitely more so than one around granting a 'para-copyright' for organizations that already enjoy a great deal of protection under existing treaties, and are far less vulnerable than beneficiaries of these limitations and exceptions.

We thank the United States of America for their document- SCCR/27/8 on the Objectives and Principles for Exceptions and Limitations for Educational, Teaching and Research Institutions. We appreciate the recognition of the copyright system in the dissemination of works of authorship as well as the critical role that it plays in the promotion of educational, teaching and research objectives. We also appreciate the acknowledgement of a balance of rights and exceptions and limitations sustaining the role and activities of educational, teaching and research institutions.

However, we do believe that for a true balance to be achieved between rights and limitations and exceptions, the rights of the users of copyrighted works for the purposes of access to knowledge will have to be treated on par with those of the rights holders themselves. We believe that for this to be possible, measures will have to be taken to ensure international interoperability of limitations and exceptions and international standards suitable to address emerging and present issues of the digital environment will have to be developed. As we have submitted before this Committee earlier, it is our belief that the present international legal framework does not sufficiently address the opportunities presented by these information and communication technologies. Mr. Chair, we reiterate the need for open ended exceptions and limitations in this area, that will facilitate a cross border exchange of books and other learning material.

As a first step towards this end, we urge Member States to collaborate on and engage in substantive discussions building on existing Working Documents presently before this Committee. We look forward to an engaging discussion and providing all our complete support as we move forward on this very important agenda item.

Thank you, Mister Chair.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-on-limitations-and-exceptions-for-education-teaching-research-institutions-and-persons-with-disabilities

WIPO Delegates Hear Concerns of NGOs on Exceptions for Libraries

praskrishna — 2014-12-27T14:40:05Z

As World Intellectual Property Organization member states launched into discussions on exceptions and limitations to copyright for the benefit of libraries and archives this week, non-governmental organisations were given the opportunity to present their views on the issue. They delivered vibrant, sometimes contradictory, statements on the opportunity for a treaty to preserve exceptions in the international copyright system.

The 26th session of the WIPO Committee on Copyright and Related Rights (SCCR) is taking place from 16-20 December. After two days devoted to the protection of broadcasting organisations, the focus of the next two days has been on a potential international instrument providing exceptions and limitations for libraries and archives.

In their general statements, countries remained faithful to their known positions. Developing countries generally underlined the necessity of achieving a balanced international copyright system and their wish to establish a legally binding instrument, and developed countries were of the view that the existing international copyright system already provides exceptions which could be used by libraries and archives.

The African Group said the countries in the group: find it difficult to set up and understand the existing limitations and exceptions; believe an international legally binding instrument would enable them to understand better how they can provide exceptions and limitations for libraries and archives; and consider that it would provide a mechanism for cross-border exchange for such entities.

The European Union clearly stated that its member countries were not willing to consider a legally binding instrument, and said that exceptions and limitations for libraries and archives did not require the same kind of action that was taken in favour of visually impaired people, referring to the recently adopted Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

Developed countries, in particular those in the European Union, did not always stand in favour of a treaty providing exceptions and limitations to copyright for visually impaired people. In the discussion on libraries and archives, developed countries are in favour of sharing national experiences rather than establishing binding new norms.

The United States said it was not in support of norm-setting through treaty provisions. The delegate also said exceptions and limitations should be consistent with other member state obligations, including the so-called three step test.

The notion of three-step test haunted the discussions leading to the Marrakesh Treaty. It stems originally from Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (IPW, WIPO, 14 June 2013) and provides conditions for reproduction.

A large number of non-governmental organisations took the floor on 18 December, with stark differences in the approach of the issue of exceptions and limitations to copyright for libraries and archives.

Industry, Creators: International Instrument Superfluous

The industry, such as the International Federation of Film Producers, the Motion Picture Association (MPA), The International Association of Editors (IPA), the International Video Federation (IVF), the Ibero-Latin-American Federation of Performers (FILAIE), and the International Association of Scientific, Technical and Medical Publishers (STM), said that the existing international copyright framework already provides exceptions and limitations, and national legislations can be develop to address issues met by libraries and archives.

FILAIE said that it was in support of the Marrakesh Treaty but that a balance between society and the rights holders should be maintained. The IPA said there is no need for change in the international law, and suggested active legislative assistance to WIPO member states by the secretariat.

IVF concurred and said effective technical assistance in implementing the existing international copyright framework should be a focus of the SCCR.

The International Federation of Reproduction Rights Organisation (IFRRO), in its statement, also said the current international conventions adequately provide for the establishment of relevant library exceptions in national legislation, such as reproduction for preservation proposals. The sharing of experiences ” both in the wording of library and archive exceptions and practical solutions seems to IFRRO to be the most appropriate way to enhance the performance of library and archive services,” the representative said.

“Exceptions and limitations are already part of the toolkit of existing treaties,” the representative for the International Federation of Actors and the International Federations of Musicians said. The international normative framework is providing “a coherent and flexible structure with just recognition of the contribution of creators to the information society and knowledge society, and the establishment of exceptions and other mechanisms providing access for the public to creative content,” he said.

The International Authors Forum concurred with the idea that existing provisions contain sufficient flexibility and asked that WIPO member states “will take advantage of the opportunity provided by the WIPO texts for adequate remuneration for the authors in accordance with the three-step test.”

Libraries, Archive Underline Inadequacies, Support Treaty

Libraries and archivists have a different view of the issue and reported on problems as they experience them on the ground.

The German Library Association cited a new study published by the European Commission (Study on the application of Directive 2001/29/EC on copyright and related rights in the information society [pdf]), and said it “paints a dire picture of the adequacy of the Directive for exceptions for libraries in the European Union in the digital environment.”

In particular, the representative said, it “identifies a lack of cross-border application of exceptions for libraries and a patchwork of national laws as preventing libraries from fulfilling their functions,” in particular presenting cross-border issues, he said.

“There is a high level of international copyright protection,” he said, but “there is no such uniformity of limitations.” To act legally, he said, “library staff has to know about the limitations and exception, not only in their own country, the country of origin, but also in the country of destination of its service.”

The Canadian Library Association said it came to WIPO “to ensure a basic copyright framework is made available to libraries everywhere, and not just in Canada to deliver essential information services, and so that other communities can benefit from the same societal and economic impacts as we have in Canada.”

Even in Canada, the representative said, libraries’ activities are under threat, “as increased restrictions such as technology group protection measures and licensing terms and conditions degrade the environment in which we work, leaving libraries changing our role to simple market access intermediaries for publishers.”

For Electronic Information for Libraries, an international framework establishing basic standards is necessary to avoid increasing inequalities in public knowledge. “We recognise the theory that the international copyright framework provides legal space to ensure meaningful limitations and exceptions,” the representative said, “But when the reality is different, and the gap between countries is widening, intervention is required to ensure the integration of key public interest concepts into the international framework.”

The International Federation of Library Associations and Institutions also underlined the disparity in national exceptions and limitations making it impossible for libraries to “competently fulfil our role as intermediaries between rights holders and users.”

At WIPO, Study On Copyright Exceptions Stimulates Broad Discussion With Author

praskrishna — 2014-12-27T14:33:46Z

During the recent meeting of the World Intellectual Property Organization copyright committee, a study was presented on exceptions and limitations to copyright for libraries and archives at the national level. The presentation spurred a full day of discussion about how to ensure libraries can continue to provide an indispensable service, and a substantive exchange with the author.

The article by Catherine Saez was published in Intellectual Property Watch on December 18, 2014

The 29th session of the Standing Committee on Copyright and Related Rights (SCCR) took place from 8-12 December.

On 10 December, Kenneth Crews, former director of the copyright advisory office at Columbia University and now in the private sector, presented an update [pdf] of his 2008 WIPO-commissioned study on Copyright Limitations and Exceptions for Libraries and Archives (IPW, WIPO, 12 December 2014).

The study provided safe ground for broad discussions on the sensitive issue of exceptions and limitations, and the role of WIPO in the issue, with a large number of countries taking the floor to offer comments on the study and its findings, providing specific details on their own legislation and/or asking questions.

Harmonisation

Mexico, for example, asked whether there was a general movement leading to a harmonisation exercise in international copyright law.

Crews answered there was no movement toward an era of harmonisation, but harmonisation could be an answer in the field of limitations and exceptions if it left sufficient policy space to countries.

On the one hand, he said, “there is virtue in harmonisation, in allowing for the predictability of the law … as your business activities move from one country to another.” It makes the law easier to understand, and easier to address some of the issues of cross-border exchange..,” he said.

But the major disadvantage of harmonisation would be the loss of opportunity for countries to “experiment, test new ideas in lawmaking, and to move in some new directions,” he added.

Maybe the answer lies in the middle, said Crews: harmonise the law to a certain extent, “and then leave some of the details to individual countries.”

The European Union delegate remarked that even in an integrated legal system such as the EU, very few exceptions to copyright are mandatory for EU members. Member states “remain free to implement most of the exceptions in the EU legislation in their national systems,” he said.

Implementation Issues

Tunisia stressed the issue of the implementation of copyright exceptions and limitations in developing countries, particularly for libraries. Libraries often are “fearful of the complications,” referring to the exceptions and limitations legislation, and simply do not use it, preferring “what is possible and available,” he said

Crews said it is important to find “the right formula” for drafting a statute that is detailed enough that users are law-abiding citizens, “and at the same time not be so complicated in the structure of the law that it is difficult or impractical for most – even trained professionals – to follow.”

Cross-Border Exchange, TPMs

Brazil said the study sheds light on certain areas where further cooperation would be welcome. The Brazilian delegate said this cooperation could take into account the dynamic evolution of digital technologies and the “growing cross-border cooperation among libraries and archives.”

The delegate said some factors pose concrete problems for cross-border cooperation, such as the fact that some 33 WIPO members do not provide exceptions for libraries, and a higher number of countries do not provide exceptions and limitations that “could be deemed adequate” to address the new challenges created by the digital environment, and limitations and exceptions provided by national legislation vary deeply from country to country.

Now that the research has started with the 2008 report has been updated, we can see that from the universe of the WIPO membership 33 countries still do not provide limitations and exceptions for libraries and archives in their national legislation. A even greater number of WIPO members do not seem to provide limitations and exceptions that could be deemed adequate in order to address the new challenges libraries and archives increasingly face with the emergence of the digital environment

He also said the study states that technological protection measures (TPM) can have a negative impact on countries’ ability to “legitimately implement exceptions and limitations,” which is a “growing concern as countries seek to better regulate and avoid abuses in the use of TPMs.”

Crews said the issue of cross-border activity and the difficulty in cooperation between countries induced by the difference in laws is perhaps one of the most important that WIPO could address. Part of the solution to that problem might be a trusted third party facilitating the transfer of copyrighted works, he said. A sharing of resources should be allowed while protecting the interest of right-holders, he said, “so that they can participate in this and encourage this activity as well.”

Many developing countries keep insisting that the major issue for libraries and archives is the digital era. The digital revolution “has barely begun,” Crews said. “The transformation of technology and the way we communicate and the way we share information is only beginning, so it is important not to prescribe exact details, but … to take some steps to open up the issue,” he said.

Chile also underlined the fact that the study showed a low number of countries providing exceptions for interlibrary loans.

According to Crews, using licences for cross-border activities is limited to the countries which the licence covers. The risks of having licences as a solution to cross-border exchange is that “it leaves the terms to private negotiations,” and many countries might not have laws on licensing.

Licensing Agreements

Sweden said the country has a dual system: “traditional limitations” in the law or preservation and replacement, for example, and a licensing agreement system. The two systems run side-by-side smoothly, he said.

Crews said that the licensing agreement system is not adaptable to all countries. “There are many reasons why it has not been adopted” in some countries, he said, adding, “I would express some concern about requiring it as an international matter.”

The European Union said exceptions and limitations and licences often coexist well. Those licences are often collectively negotiated, said the EU delegate, and sometimes cover broader uses than the exceptions themselves.

Crews said conceptually in the law-making process, countries need to reckon with the relationship not only of the rights of owners and the public rights of use or the copyright exceptions, but also the role of licences, and should they be allowed to override an exception that is in the law.

“That is a tough question,” he said. “It not only goes to the balance of rights,” he added, but lawmakers should decide to what extent an agreement can impede the statute they have worked hard to develop.

Countries Provide Clarifications, New Legislations

Some countries provided clarifications or additions to the study. For example, Saudi Arabia, which was mentioned in the study as one of the countries with no exceptions and limitations, said the 1984 copyright law provides an exception in paragraph 3.

Ecuador said it is working on a substantial reform of its current intellectual property legislation, including exceptions and limitations for people with disabilities, teaching and educational institutions, and libraries and archives.

China said it is undergoing the third revision of its copyright law, and Thailand said in November it passed an amendment to its copyright law, on TPMs, and this amendment includes an exemption for the circumvention of TPM for libraries and archives, educational institutes, and public broadcasting organisations.

Crews said many countries, including the United States and those in the European Union, have exceptions for TPMs, with two basic procedures: an exception that allows the user to “do the act of circumventing the measures to access the content,” and a legal system that calls on the rights holder to provide the means to users to access the content.

The United States said the US Congress is currently reviewing elements of its domestic copyright law, including library-related exceptions and limitations.

In November, the Czech Republic introduced a new amendment to its copyright system, the delegate said, “and the amendment brought a new exception for libraries and archives and for other cultural and educational institutions and for public broadcasters,” enabling them to use orphan works existing in their collection, under specific terms and for certain specific uses.

NGO Questions and Comments

The representative of the Electronic Information for Libraries (eIFL) asked Crews how WIPO, as a United Nations agency with a commitment to enhance developing countries’ participation in the global innovation economy, could support countries to be at the forefront of digital developments. The representative also asked how libraries can accommodate their increasing need to send and receive information across border, within the realm of copyright law.

Many countries have either no exceptions, or have exceptions but very limited applications, which do not cover digital technology, Crews said, adding that WIPO is in a position to shape the next model.

The International Publishers Association said that legislation is one thing but to know whether they are implemented and how they work is another. The representative advised looking at what kind of practice, and also practical initiatives between stakeholders can solve issues at stake.

In many cases, the representative said, issues are solved by alternative means, citing collective licensing, but also solutions bringing together stakeholders, he said, which provide space and flexibility for adaptation and further change. On cross-border document delivery, he said, “It is not true that documents are not crossing continents or crossing borders.” He explained that there are many alternative ways of receiving content across borders.

Crews said he is supportive of alternatives outside of the law, however, they might not be optimal solutions, he said. In particular, it often takes no less time to develop those alternatives than writing law, he said. He added that those alternatives, such as licences, are available only with respect to certain types of works, whereas statues apply to all types of works.

“The private extra-legal systems are not going to solve all of the issues,” said Crews.

The International Federation of Library Associations and Institutions said the United Kingdom reform of its copyright law includes for the first time provisions that prevent contracts and licences from overriding the exceptions and limitations enjoyed by libraries and archives for non-commercial uses.

The Center for Internet and Society (India) asked about the interoperability of limitations and exceptions to allow for easier trans-boundary movement of works. Crews said the trans-border concept seldom appears in library exceptions. Trans-border sometimes is governed by copyright law and sometimes by some other part of national law, such as import and export, he said. Some degree of harmonisation can help with interoperability, he said.

In general terms, and following an intervention by the TransAtlantic Consumer Dialogue mentioning public involvement in the discussions, Crews said, “We are all copyright owners and we are all users of other people’s copyrights to some extent.”

The public does not realise that they are all owners and users of copyrighted works on a daily basis, he said, and they need to become participants in the process.

[Update:]

Knowledge Ecology International asked if the periodical revision of the Berne Convention’s standards for copyright exceptions, which ended in 1971, should be resumed. The KEI representative also asked whether the copyright three-step test contained in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) applies to specific limitations and exceptions to remedies for infringement, in part III of TRIPS (Enforcement of Intellectual Property Rights).

Crews answered that the three-step test does not apply to the remedies, or other matters. The test is on “its own terms applicable to the limitations and exceptions,” he said.

On the revision on the Berne Convention, Crews said “the answer is yes” but it is a “bigger subject than we are convened here today to discuss.”

KEI also mentioned a Spanish tax which “apparently” is taken on snippets from news organisations and asked if this tax does not violate the two mandatory exceptions in the Berne Convention, which are news of the day, and quotations.

Crews said the issue might be about the interrelationship of copyright with other areas of the law. The Spanish tax mentioned might be relative to a tax law, he said.

For more details visit https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-18-2014-wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author

Tulu Wikipedia - Coverage in Vijaya Karnataka

praskrishna — 2014-12-27T16:36:09Z

This is the coverage in Vijaya Karnataka on December 15.

For more details visit https://cis-india.org/openness/news/tulu-wikipedia-december-15-2014-coverage-in-vijaya-karnataka

Tulu Wikipedia (Coverage in VijayaVani)

praskrishna — 2014-12-27T16:30:57Z

Media coverage in Vijayavani.

For more details visit https://cis-india.org/openness/news/tulu-wikipedia-coverage-in-vijayavani

Tulu Wikipedia Presentation: Coverage in Kannada Prabha

praskrishna — 2014-12-27T14:46:59Z

Dr. U.B. Pavanaja made a presentation on Tulu Wikipedia at a workshop held in Mangalore on December 14, 2014. This was covered by Kannada Prabha.

For more details visit https://cis-india.org/openness/news/kannada-prabha-december-14-2014-tulu-wikipedia-presentation

29th Session of the WIPO SCCR: CIS Intervention : Questions to Prof. Kenneth Crews on his Updated Study on Limitations and Exceptions for Libraries and Archives

nehaa — 2014-12-14T02:56:46Z

Nehaa Chaudhari on behalf of the Centre for Internet and Society (CIS) on December 11 during one of the sessions in WIPO asked two questions to Prof. Kenneth Crews.

In 2008, WIPO commissioned a study on Limitations and Exceptions for Libraries and Archives.This was prepared by Prof. Kenneth Crews. On December 10-11, 2014, at SCCR 29, Prof. Crews presented an updated (2014) version of this study and addressed comments and questions from Member States and Observers.

CIS Statement:

Thank you, Madam Chair.

Thank you very much, Professor Crews for your presentation yesterday, and for this comprehensive study on Limitations and Exceptions for Libraries and Archives, very timely, and very important to us, from the perspective of access to knowledge and information.

I have two questions:

My first question: Did you find, in your examination, that, in terms of/ or on the question of limitations and exceptions, did you find, that there was an equal or equitable treatment of digital resources in comparison to resources available in more traditional formats? And if not, where do you think that lever of change lies to ensure that fair dealing provisions are extended equitably to the digital environment as well?

My second question, is on the interoperability of Limitations and Exceptions: Given that copyright is a very national thing, and, as your study has also well established, countries have a whole range of very diverse approaches and practices on Limitations and Exceptions; but also given that we live in an increasingly globalized world, we need a system that is interoperable with respect to the trans-boundary movement of works, with as little friction as possible, both- in the physical as well as in the digital environments. So, what did your examination show us of how interoperable- or not- the range of Limitations and Exceptions actually are?

Those are my two questions.

Thank you very much.

Response by Prof. Kenneth Crews:

Thank you very much. On the second question, I'm afraid I might mind myself only repeating some of the concepts that have already said about transborder and really about in the statutes anyway, a lack of recognition of transborder. And the transborder concept, so I will add this piece to the conversation, the transborder concept seldom if ever appears in these library exceptions to the extent that we are going to find it in copyright law or some other part of a national law it may very well be over in the import/export kind -- area of the law. But that also goes to the interoperability which think we have answered a few times just this sort -- the lack of exact harmonization and as others have reminded me I have said before that I may not be a fan of exact precise harmonization and indeed it may not be possible or even desirable. But some degree of harmonization can help with that interoperability. Interesting question, you do -- you did raise a new point about digital. We have talked several times in this conversation about use of digital technologies in the exercise of the rights of use under the exception. However what I think you were asking about is the ability to apply the exception to works that are digital in the first place that are what we call born digital and that's a very interesting question. The statutes do not address that. Sometimes you will see a statute that refers to -- that says it applies to all these different kinds of works but not computer software. That tells you somebody was thinking it shouldn't apply to software but somehow software is different and there are problems with that. We know that software has changed and been incorporated in to many different works. But we generally see a statute almost always see a statute that's about books or archival materials or some other kind of work without specifying the technology. So can it apply to an e-book in addition to the paper book? The statutes don't go there. They don't sort that out. So in my common law tradition I look at that and see that as a question for interpretation. In a civil code system I might look at it and see it a little bit more firmly for lack of a better word about what the scope of that word book, for example, really means.

Really good question. And it is one that the statutes have not picked up on.

Thank you very much.

For more details visit https://cis-india.org/a2k/blogs/cis-intervention-questions-to-prof-kenneth-crews-on-limitations-and-exceptions-for-libraries-and-archives

Tulu Wikipedia gets some push

praskrishna — 2014-12-27T15:20:04Z

Tulu Wikipedia, which was launched in 2007, is still in incubation stage, according to UB Pavanaja, Programme Officer at the Bengaluru-based Centre for Internet and Society.

The article was published in the Hindu Businessline on December 13, 2014

Speaking at a technical session on ‘Tulu in technology’ as part of Global Tulu Festival in Mangaluru on Saturday, he said that now some push has been given for reviving Tulu Wikipedia.

Workshops on Tulu Wikipedia were conducted in March, April and November this year. The number of Tulu articles in Wikipedia was 135 in January 2014. It has increased to around 750 now, he said.

Referring to the lack of encyclopaedic knowledge in Tulu language, he said there is a need to give push for creating encyclopaedic knowledge in Tulu in such a situation.

Steps should be taken to contribute entries for Tulu Wikipedia regularly to keep it live. Those who work for Tulu Wikipedia should meet regularly to discuss future course of action.

He said that Wikipedia entries in Tulu language can be made under the URL http://bitly.com/tuluwiki

A live Tulu Wikipedia will help bring pressure on the Government to include Tulu in the Eighth Schedule of the India Constitution, he said.

Tulu-speaking people can request for including the Tulu script in Unicode, if there is a live Tulu Wikipedia, he added.

It may be mentioned here that works in Tulu language are prominently written in Kannada script, as Tulu script has not gained acceptability.

For more details visit https://cis-india.org/openness/news/hindu-businessline-december-13-2014-tulu-wikipedia-gets-some-push

Creating Free Software Environment at Andhra Loyola College

rahim — 2015-05-27T00:54:42Z

Andhra Loyola college has signed an MoU with CIS-A2K and as part of it CIS-A2K team has provided a free and open software environment at Andhra Lyola College's Computer Center. Thirty machines have been installed with free software Operating system and some useful applications such as GIMP, Inkscape, firefox, libreoffice, etc.

Principal, Vice-principal, management and faculty at Andhra Loyola College expressed interest in upgrading their lab computers to latest software without having the glitches of piracy issues. The obvious solution to this was to install Linux based free OS like Ubuntu/Debian

Program Director of CIS-A2K advised to have this process done in a pilot manner instead of forced imposition on faculty and students to use a totally new working environment. So, 30 machines from PG lab were selected for this purpose.

These machines were installed with Ubuntu 12.04 LTS edition. In addition to the default available Libre office, firefox and terminal, Tools like Gimp, inkscape, apache web server were also installed.

Each of the faculty and students present at the installation time were evangelized about Free Software and its wise uses in the long term.

For more details visit https://cis-india.org/openness/blog-old/creating-free-software-environment-at-alc

SCCR 29 Libraries, Archives and Public Interest NGOs in Q&A with Dr. Crews

praskrishna — 2014-12-27T16:54:58Z

While the many publishers representatives took the floor to explain that there are truly no problems with limitations and exceptions for libraries and archives (and anyway according to them if there are problems that can be solved with licenses), libraries & archives as well as public interest groups make their case: the committee must continue its work on limitations and exceptions for libraries and archives and find solutions.

This blog entry was published on the website of Knowledge Ecology International on December 11, 2014.

Here are excerpts from some of the interventions:

Hasmik Galstyan, Yerevan, Armenia speaking for the Electronic Information for LIbraries (eIFL.net):

>> EIFL: I'm speaking on behalf of the electronic information for libraries and that works with libraries and library con sort Sha in more than 60 developing and transition economy countries. We thank the Secretariat for commissioning the updated study that provided a comprehensive overview in the IP law. We thank professor crews for his clear presentation.
The report contains positives and negatives from our Point of View. The positives include the fact that law makers are to some degree responding to the need for legal change and a small number of countries have over the last six years created new exceptions especially with regard to digital services. These changes are to be commended. On the other hand, it is discouraging that 18% of countries including five EIFL partner countries have new exceptions for libraries and over one-third located almost totally in the developing world still do not have an exception allowing libraries to make copies of their works for the users. The trend regarding digital library services doesn't look good. Even for states that introduce amendment 2008 digital is barred in 50% in some cases for preservation and it states with anti-circumvention protection while some have applied library exceptions as mentioned by professor crews half of the countries have provided no library exceptions. So while a small number of countries are moving ahead and reforming their copyright laws the digital divide is being perpetuated at a time when libraries everywhere are adopting new technologies and Developing Countries are rapidly moving to mobile. My question is how can the situation be addressed. How can WIPO as an UN agency with a commitment to work with Developing Countries to enhance their participation in the global innovation economy most effectively support countries to be at the forefront of digital developments. To ensure that our libraries that are working hard to support education and development are not operating with one hand tied behind our backs.

My second question is considering that between 2008 and 2014 only a handful of countries have been implemented made changes benefitting libraries and their users and imagining that the current rate of support for a change stays the same, how long do you think it will take before all WIPO Member States have exceptions good enough to support library activities in the Digital Age? And the last question, please. Libraries collections contain materials of unique cultural and historical significance to people in other countries to the national border changes shared languages and a host of other reasons. In addition collaboration among researchers today is international. Therefore libraries increasingly need to send and receive information across borders. In our examination of copyright laws how do they accommodate or not these activities? Thank you very much.

The libraries representatives were echoed by archives representatives. William Maher, University of Illinois at Urbana-Champaign, representing the Society of America Archivists.

Thank you for producing a study that brings such clarity to the quite confusing maze of the laws that librarians and archivists must work with. Archives has been mentioned a lot over the past couple of days but I am only the second archivist to be addressing this issue at SCCR. Archivists know that the general populations does not understand what archives are and how and why we do what we do. However, it seems reasonable that those who draft copyright laws should understand that archives are fundamentally about the unpublished legacy of humankind. Yet, when looking at the 70 or so countries in the 2014 study, archives are seriously overlooked–Despite whatever minimal improvement for libraries, archives have been left out of 53% of the exceptions for preservation and 72 % of the exceptions for copying for research. Is this absence of provisions also reflected in the fact that the laws lack definitions of archives? Can this oversight be read as meaning that archives do not matter to the nations copyright system, or does it mean that copyright should not matter to archives?
>> KENNETH CREWS: Well, thank you very much. Yes, I think you have also heard me speak very strongly about the distinct interests of archives and maybe I should say even more important the distinct interests of our citizens in archives and in the works that they are -- the work that they are doing. And their ability to use these copyright provisions for the benefit of the country and of its citizens. I certainly can't emphasize that enough. So I -- I'm not going to read in to the lack of reference to archives. The kind of meaning that you are asking about. But instead I think we can certainly say that it makes you wonder if archives have been recognized by the drafters of many of these statutes and if in the case of following through on the example of the models influencing domestic law it really is have archives come to the attention of the individuals who have been responsible for developing some of the models. So I believe very strongly that the future statutes in individual countries and the drafting of different kinds of instruments or models that may come from WIPO or any other organization need to encompass archives. And the -- because the preservation and research access and other kinds of beneficial uses of archival material goes directly to the preservation of the culture and the history of our countries and our people. And it is vital that we be able to do that and keep archives at the table. And I thank you very much for being here.

Another stakeholder, Nehaa Chaudhari, Lawyer, Programme Officer at the Centre for Internet and Society questioned Dr. Crews on provisions regarding digital works:

CIS: Thank you Madame Chair. Thank you very much professor crews for your presentation yesterday and this comprehensive study on libraries and archives. Very timely and very important to us from the [...] access to knowledge and information most critically.
I have two questions. My first question: did you find in your examination that in terms of or on the question of limitations and exceptions did you find that there was an equal or equitable treatment of digital resources in comparison to resources available in more traditional formats? And if not, where do you think that are lever of change lies to ensure that fair use of fair dealing provisions are extended e equitably to the digital environment as well.

My second question is on the interoperability of limitations and exceptions. Given that copyright is a very national thing and as your study has also well established countries have a whole range of veridy veers approaches and practices on limitations and exceptions. But also given the fact that we live in an increasingly globalized world we need a system that is interoperable with respect to the transboundary movement of works with as little fiction as possible. Again both in the physical as well as in the digital environments. So what did your examination show of how interoperable or not the range of limitations and exceptions actually have. Those are my two questions. Thank you very much.

> KENNETH CREWS: Thank you very much. On the second question, I'm afraid I might mind myself only repeating some of the concepts that have already said about transborder and really about in the statutes anyway, a lack of recognition of transborder. And the transborder concept, so I will add this piece to the conversation, the transborder concept seldom if ever appears in these library exceptions to the extent that we are going to find it in copyright law or some other part of a national law it may very well be over in the import/export kind -- area of the law. But that also goes to the interoperability which think we have answered a few times just this sort -- the lack of exact harmonization and as others have reminded me I have said before that I may not be a fan of exact precise harmonization and indeed it may not be possible or even desirable. But some degree of harmonization can help with that interoperability. Interesting question, you do -- you did raise a new point about digital. We have talked several times in this conversation about use of digital technologies in the exercise of the rights of use under the exception. However what I think you were asking about is the ability to apply the exception to works that are digital in the first place that are what we call born digital and that's a very interesting question. The statutes do not address that. Sometimes you will see a statute that refers to -- that says it applies to all these different kinds of works but not computer software. That tells you somebody was thinking it shouldn't apply to software but somehow software is different and there are problems with that. We know that software has changed and been incorporated in to many different works. But we generally see a statute almost always see a statute that's about books or archival materials or some other kind of work without specifying the technology. So can it apply to an e-book in addition to the paper book? The statutes don't go there. They don't sort that out.

So in my common law tradition I look at that and see that as a question for interpretation. In
a civil code system I might look at it and see it a little bit more firmly for lack of a better word
about what the scope of that word book, for example, really means. Really good question. And it is one that the statutes have not picked up on. Thank you very much.

Finally, the TransAtlantic Consumer Dialogue (TACD) representative David Hammerstein made the following political and philosophical intervention:

Thank you very much. Thank you Mr. Crews for your presentation. I would like to say a few general words. Internet and the digital obviously is global. Copyright laws are national. Economic power is global. Politics is national. This is very relevant to our discussion.
And other relevant factor is that copyright law and the idea of exceptions and limitations are very complicated. It is for small circles of specialists usually and when these things come out in to the open to the greater public opinion things change radically. I can only remind peep of this room for the debate on ACTA or the debate for SOPA and PIPA in the United States. When these issues come out of the closet things are seen in a very, very different light. The opinion of copyright specialist especially where I know in the European Union and totally different with the opinions of the general public. And the general public the vast majority are frustrated by copyright law because social reality that applies de facto and I am not talking about piracy, I am talking about de facto flexibilities and exceptions and limitations are very, very far from the legal reality of the copyright. The vast majority of Europeans would like to have a harmonized and mandatory exceptions and limitations that we are speaking about, whether it be more text and data mining, whether it be for libraries whether it be cross-border, whether it be preservation of cultural heritage, they would like that. Now the opinions of the often of political structures are captured by certain experts and very special groups that are interested in what they want. Especially the European Union is at a cross roads and we can see it politically because around a year ago the European Union launched a process called lnss for Europe where some of the ideas presented by some of the industry people were brought up memorandums of understanding and that the solution to exceptions and limitations for these issues could be found in voluntary measures between stakeholders. This was a failure. This was a terrible failure. We had letters many many many Nobel Prize winners who are asking tore a legal exceptions and limitations for text and data mining for other scientific research and we think that many orphan works legislation does not go far enough. Et cetera, et cetera, self generated user content. How can that Democratic debate take place and these cross roads can be made a positively by real decisions. And I think those real decisions have to be deal with the public dough minute yon, what is public knowledge and things about the commons, we are talking about the knowledge commons here need to have a democratic debate and need to have democratic management. Now this could be done by very delayed mediation to end up in the hands of a few copyright experts that are very close to very narrow industry that I think is defending outdated models or we could open a democratic debate where exceptions and limitations for libraries and archives for preservation for scientific limitation would be beyond borders. Even inside the European Union today it is almost hard to imagine there to be harmonization in the internal market. And the people making money prefer a fragmented market even though European site sents want a harmonized market for these things. My question is impossible question. I am sorry to put you on spot of how to open up the door, how to bring this issue out of the closet and how to involve millions of people who really want that change. Thank you very much

For more details visit https://cis-india.org/a2k/news/knowledge-ecology-international-sccr-29-december-11-2014-libraries-archives-public-interest-ngos-q-a-with-dr-crews

CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions

Amulya Purushothama and Nehaa Chaudhari — 2015-09-03T02:08:34Z

This is a submission made by Nehaa Chaudhari on behalf of the Centre for Internet and Society to the Expert Committee on the Broadcast Treaty constituted by the Ministry of Information and Broadcasting, Government of India. This submission compares the definitions of various terms in the Proposed Treaty for the Protection of Broadcasting Organizations that is being deliberated at WIPO's SCCR at the moment, and definitions for these terms that are already present in existing international instruments.

Special thanks to CIS intern, Amulya Purushothama for her research and writing on this subject. While Amulya was acknowledged as the co author in the actual submission itself, the blurb didn't say so and this has now been changed. Download the file of CIS submission here.

Introduction

This note analyses the differences in definitional clauses across six documents, the proposed Treaty on the Protection of Broadcasting Organisations [1] ("Broadcast Treaty"), the Proposal on the Draft Treaty on the Protection of Broadcasting Organization- The Proposal by the Delegation of South Africa[2] ("Proposal by South Africa"), The WIPO Copyright Treaty, 1996, the WIPO Performances and Phonograms Treaty,1996 ("WPPT"), the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 ("The Rome Convention"), and the Beijing Treaty on Audiovisual Performances, 2012 ("The Beijing Treaty")

The definitions for signal, broadcasting, broadcasting organization, retransmission, fixation, communication to the public and rights management information will be studied in detail as the definitions for these concepts has varied somewhat through the years. The rest of the definitions can be found in a detailed table that follows.

The argument here is simply that by subtly broadening the definition of certain terms, the broadcast treaty grants a higher level of protection to broadcasting organization, and that these protections could possibly extend to covering the content underlying the signals.

1. Signal

The proposed Broadcast Treaty defines a signal as an "electronically generated carrier consisting of sounds or images or sounds and images or representations thereof whether encrypted or not"[3], the alternative to this provision defines a signal as an "electronically generated carrier capable of transmitting a broadcast cablecast"[4]. The proposal by South Africa, on the other hand, defines a signal as "an electric current or electromagnetic field used to convey data". Clearly the definition in the Broadcast Treaty could be extended to cover the content underlying the signal and is not as technologically neutral as the alternative definitions.

2. Broadcasting

The proposed Broadcast Treaty defines broadcast as the "transmission of a signal by a broadcasting organization for reception by the public"[5], an alternative to this excludes signals sent over computer networks from the definition of a broadcast, [6] another alternative defines broadcasting as "the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof". This definition includes satellite transmission, wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent. Transmission over computer networks is excluded from this definition as well.[7] This mirrors definitions of broadcasting set out in the WPPT[8], the Rome Convention[9] and the Beijing Treaty[10]. The proposal by South Africa defines "broadcasting" as the process whereby "the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications" and "broadcast" is construed accordingly. Clearly the proposed definition under the Broadcast Treaty is less technologically neutral as compared to the proposal by South Africa. The proposed definition under the Broadcast Treaty also does not limit the protection granted by the treaty to the signal and unlike the proposal by South Africa does not ensure that definition excludes the underlying content being transmitted by the signal.

3. Broadcasting Organisations

The proposed Broadcast Treaty defines a broadcasting organization as "the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal." Or alternatively[11], considers broadcasting organisations and cablecasting organisations as one and the same and defines them as "the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission." The proposal by South Africa defines a broadcasting organization as the "legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds". Clearly, in stark contrast to the proposed Broadcast Treaty, the proposal by South Africa ensures that cablecasting organisations aren't included within the definition of broadcasting organisations, this definition is also by far the most technologically neutral and ensures adequate protection for broadcasting organisations on all broadcasting platforms.

4. Retransmission

The proposed Broadcast Treaty defines "retransmission" as "the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed";[12] or alternatively defines rebroadcast as "the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization"; even simultaneous transmission of a rebroadcast is understood to be a rebroadcast under this definition. [13]

Under a further alternative[14] retransmission is defined as "the simultaneous transmission for the reception by the public by any means of a transmission … by any other person than the original broadcasting or cablecasting organization" this definition of retransmission also includes simultaneous transmission of a retransmission.

To contrast to this, the Rome convention defines rebroadcasting as the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.[15] Clearly a higher level of protection is granted to broadcasting organisations under the proposed Broadcast Treaty, one that was so far not guaranteed to them by international conventions.

5. Fixation

The proposed Broadcast Treaty defines fixation as "the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device" [16] [17],the WPPT defines fixation as "the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device";[18] and the Beijing Treaty defines audiovisual fixation as "the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device".[19] In this capacity, the definitions proposed in the Broadcast Treaty seem to be in line with the earlier international treaties.

6. Communication to the Public

The proposed Broadcast Treaty defines communication to the public as "any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform".[20]or alternatively as "making the transmissions … audible or visible or audible and visible in places accessible to the public.[21] Whereas the WPPT defined communication to the public as "the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram… including making the sounds or representations of sounds fixed in a phonogram audible to the public."[22] The Beijing Treaty defined communication to the public as "the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audio visual fixation… "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public." [23] Clearly the definition has been broadened under the proposed treaty, which makes it plausible for the protection granted to broadcasters to cover the content underlying the signal as well.

7. Rights Management Information

The proposed Broadcast Treaty defines rights management information as "information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6."[24] The WIPO Copyright Treaty, 1996, defines it as "information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public."[25]

The WPPT extends the same definition to performances and performers as it defines rights management information as "information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public."[26] And the Beijing Treaty defines rights management information as "information which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation."[27]

Clearly the current treaty extends the protection offered to rights management information to pre-broadcasting signals in addition to broadcast signals, this represents a higher level of protection granted to broadcasters under the proposed Broadcast Treaty.

Detailed Table on Definitions in International Treaties

Definition	Broadcast Treaty 27/2 rev	Broadcast Treaty Proposal by South Africa WIPO/CR/Consult/GE/11/2/2	WIPO Copyright Treaty, 1996	WIPO Performances and Phonograms Treaty,1996	Rome Convention, 1961	Beijing Treaty on Audiovisual Performances, 2012
Signal	Article 5, Alternative A, 5(a): "signal" is an electronically generated carrier consisting of sounds or images or sounds and images or representations thereof, whether encrypted or not; Alternative to (a), "signal" means an electronically generated carrier capable of transmitting a broadcast or cablecast	"signal" is an electric current or electromagnetic field used to convey data;
Broadcast	Article 5, Alternative A : Article 5 (b): "broadcast" means the transmission of a signal by or on behalf of a broadcasting organization for reception by the public; Alternative to (b): "broadcast" means the transmission of a set of electronically generated signals by wireless and carrying a specific program for reception by the general public, broadcast shall not be understood as including transmission of such a set of signals over computer networks. Alternative B for Article 5, Article 5 (a) "broadcasting" means the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting". Wireless transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent. "broadcasting" shall not be understood as including transmissions over computer networks	"broadcasting" means the process whereby the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications and "broadcast" is construed accordingly"		Article 2(f): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent;	Article 3 (f): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds;	Article 2(c): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.
Broadcasting Organization	Article 5, Alternative A to Article 5 (c): "broadcasting organization" means the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal. Alternative B for Article 5, Article 5 (c): "broadcasting organization" and "cablecasting organization" mean the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission.	"broadcasting organization" means the legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds.
Retransmission	Article 5, Alternative A to Article 5(d): "retransmission" means the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed; Alternative to (d) rebroadcast means the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization; simultaneous transmission of a rebroadcast shall be understood as well to be a rebroadcast. Alternative B for Article 5, Article 5 (d): "retransmission" means the simultaneous transmission for the reception by the public by any means of a transmission referred to in provisions (a) or (b) of this article by any other person than the original broadcasting or cablecasting organization; simultaneous transmission of a retransmission shall be understood as well to mean a retransmission.				Article 3(g): "rebroadcasting" means the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.
Fixation	Article 5, Alternative A to Article 5 (e) "fixation" means the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device Alternative B for Article 5, Article 5 (f) "fixation" means the embodiment of sounds or of images or of images and sounds or of the representations thereof from which they can be perceived, reproduced or communicated through a device.			Article 2(c): "fixation" means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;		Article 2(b): "audiovisual fixation" means the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device.
Communication to the Public	Article 5, Alternative A to Article 5 (f): "communication to the public" means any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform. Alternative B for Article 5, Article 5 (e): "communication to the public" means making the transmissions referred to in provisions (a), (b) or (d) of this article audible or visible or audible and visible in places accessible to the public.			Article 2(g): "communication to the public" of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of Article 15, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public.		Article 2(d): "Communication to the public of a performance means the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audiovisual fixation. For the purposes of Article 11, "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public.
Pre-broadcast Signal	Article 5, Alternative A to Article 5 (g): "pre broadcast signal" means a transmission prior to broadcast that a broadcasting organization intends to include in its program schedule, which is not intended for direct reception by the public
Rights Management Information	Article 5, Alternative A to Article 5 (h) "rights management information" means information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6.		Article 12(2): "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public	Article 19(2): "rights management information" means information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public.		Article 16(2): "rights management information" which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation.
Transmission	Article 5, Alternative A to Article 5 (i), "transmission" means the sending for reception by the public of visual images sounds or representations thereof by the way of an electronic carrier	"electronic communications" means the emission, transmission or reception of sounds , visual images or other visible signals whether with or without accompanying sounds by means of magnetism, radio or other electromagnetic waves, optical electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct.
Program	Article 5, Alternative A to Article 5 , alternative to (j), "program" means a discreet package of one or more works protected by copyright or related rights in the form of live or recorded material consisting of images, sounds or both.
Cablecast	Article 5, Alternative A to Article 5 (k) "cablecast" means the same as "broadcast" when the transmission is by wire and excluding transmission by satellite or over computer networks. Alternative B for Article 5, Article 5 (b): "cablecasting" means the transmission by wire for the reception by the public of sounds or of images or of images and sounds or of the representations thereof. Transmission by wire of encrypted signals is "cablecasting" where the means for decrypting are provided to the public by the cablecasting organization or with its consent. "cablecasting" shall not be understood as including transmissions over computer networks.
Performers				Article 2(a) :"performers" are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore	Article 3(a): "performers" means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works;	Article 2(a): "performers" are actors, singers, musicians, dancers, and other persons, who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore.

[1] See Working Document for a Treaty on the Protection of Broadcasting Organisations, Prepared by the Secretariat, Standing Committee on Copyright and Related Rights, 27^th Session, Geneva, April 28- May 2, 2014, SCCR/27/2/REV. (Hereafter The Broadcast Treaty.)

[2] The Proposal on the Draft Treaty on the Protection of Broadcasting Organisations, Proposal by the Delegation of South Africa, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14 and 15, 2011, WIPO/CR/Consult/Ge/11/2/2. (Hereafter, The South African Proposal)

[3] Article 5, Alternative A, 5(a), the Broadcast Treaty.

[4] Article 5, Alternative A, Alternative to (a), The Broadcast Treaty.

[5] Article 5, Alternative A, Article 5 (b), The Broadcast Treaty.

[6] Article 5, Alternative A, Alternative to (b), The Broadcast Treaty.

[7] Alternative B for Article 5, Article 5 (a) The Broadcast Treaty.

[8] See Article 2(f) of the WIPO Performances and Phonograms Treaty, 1996.(Hereinafter, WPPT) that reads as: "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent"

[9] See Article 3 (f) of the Rome Convention, 1961 (Hereafter The Rome Convention), that reads as: '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds.'

[10] See Article 2(c) of the Beijing Treaty on Audiovisual Performances, 2012(Hereafter The Beijing Treaty), that reads as '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.'

[11] Alternative B for Article 5, Article 5 (c) The Broadcast Treaty.

[12] Article 5, Alternative A to Article 5(d) The Broadcast Treaty.

[13] Alternative to Article 5(d), The Broadcast Treaty.

[14] Alternative B for Article 5, Article 5 (d), The Broadcast Treaty.

[15] Article 3(g), The Rome Convention, 1961.

[16] Article 5, Alternative A to Article 5 (e), The Broadcast Treaty.

[17] Alternative B for Article 5, Article 5 (f), The Broadcast Treaty.

[18] Article 2(c), WPPT.

[19] Article 2(b), The Beijing Treaty

[20] Article 5, Alternative A to Article 5 (f), The Broadcast Treaty.

[21] Alternative B for Article 5, Article 5 (e), The Broadcast Treaty.

[22] Article 2(g), WPPT.

[23] Article 2(d), The Beijing Treaty.

[24] Article 5 (h), The Broadcast Treaty.

[26] Article 19(2), WPPT.

[27] Article 16(2), The Beijing Treaty.

For more details visit https://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions

29th Session of the WIPO SCCR: CIS- 2nd (brief) Intervention on the Broadcast Treaty

nehaa — 2014-12-12T11:56:14Z

On Day 3 (December 10, 2014), the SCCR briefly re-convened at the Plenary. The Chair, Martin Moscoso updated the Committee on the discussions and the developments that had taken place over the course of the past two days in the Informals. The Centre for Internet and Society made a brief pointed intervention on one of the documents being discussed in the Informals.

Note: The documents cannot be made public yet. They were shared with Observers and Member States (even those that did not participate in the Informals) on the condition of maintaining confidentiality.

Nehaa Chaudhari on behalf of CIS made the following statement:

Thank you, chair.

First on the making available these documents, we would like to echo what CCIA and KEI said- we would also like to see the informal papers made public, so that we can have a more informed discussion on these issues.

Second, very briefly, on some of the rights to be granted- in one of the Informal Discussion Papers laid out, in -- in the third column, which are essentially fixation and post fixation rights, just very briefly, that whatever is done in any case after the signal is fixed is already covered by copyright law and we find it frightening and we see little sense in providing two sets of incompatible, and overlapping rights- copyright, that is already existing, and a sort of a para-copyright (that this treaty seeks to create) for the same underlying content.

Thank you, Mr. Chair

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty

Beyond the Language Tussle

teju — 2014-12-10T14:08:02Z

It might be more productive to see the ongoing Sanskrit versus German controversy as a welcome opportunity to discuss the real and persistent problems of our education system, not all of which have to do with which languages children get to learn.

The Op-ed was published in the Hindu on December 6, 2014.

The ongoing Sanskrit vs. German controversy is being seen by some as the sign of a sinister conspiracy to change educational options, and by others as a much-needed corrective to bring back “Indian culture” into the schools. It might be more productive to see it instead as a welcome opportunity to discuss the real and persistent problems of our education system, not all of which have to do with which languages children get to learn. The attempt to implement the teaching of Sanskrit in schools seems to be supported by a remarkably uninformed view about what sort of language policy we require today. And this is not to say that previous governments had any greater insight into how to handle either the medium of instruction problem or the issue of how many languages to teach and at what level.

Education budget cut

Far more disturbing than the Sanskrit-German debate was the news last week that the new Central government has decided to cut Rs.11,000 crore from the Education budget (The Hindu, “Social sector funds slashed,” Nov. 27). The favouring of physical infrastructure over “the social sector” (health, education, social security, nutrition, etc.) disregards the intangible factors that go into strengthening knowledge bases and the setting up of infrastructure in the first place. One of the implicit casualties of the massive cut in the Education budget is a proposed 12th Plan programme to revitalise Indian language resources in higher education. The rationale for this programme was that generation of knowledge in Indian languages would not only create new intellectual resources but transform the teaching-learning process in positive ways. The access-equity-quality triangle emphasised by policymakers could effectively be strengthened through a focus on Indian languages. Since the default medium of instruction at the tertiary level was actually a local language rather than the “mandatory” English, the deliberate blindness of successive governments to this fact was depriving students across disciplines of good quality resources. This linguistic divide affects the majority of tertiary students in the country. Thus, investing in Indian language materials at the basic and advanced levels is a sustainable (not to mention cost-effective) way by which Indian higher education could be strengthened.

“The long-term objective should be to make the student bilingually proficient, so that he is able to bridge effectively the conceptual worlds of the local and the global.”

We should note here that the emphasis is not on how many languages the student learns but on whether s/he is developing cognitive capabilities. This too has been a serious blind spot in modern Indian education over the decades, right up to the recent May 2014 Supreme Court judgment on the non-enforceability of mother-tongue instruction. The Court invoked the right to freedom of speech and expression in this instance to say that children and parents could choose the language in which the child wanted to be educated. With all respect to the learned judges, one wonders if they sought expert opinion in the matter or merely relied on their common sense. If they had done the former, they might have found out that worldwide research has proved that the most effective teaching and learning happens through the use of the mother tongue. If exposing a child to English at a very young age is dictated by opportunism and a skewed sense of what makes social mobility possible, this choice flies in the face of language and education research as well as the most enlightened pedagogic practices available. If mother tongue or Indian language education is not practical today, it’s because of the enormous lack of good educational resources in those languages, another need that state initiatives have failed to address adequately.

Parallel with China

Since, these days, China is the favourite country of comparison for us, we should pay attention to the fact that students in China start learning English in the fourth standard and for the most part study all their subjects in Mandarin. In my experience, the English fluency of the average Chinese undergraduate ranges from functional knowledge of English to complete proficiency, with an emphasis on reading and writing rather than speaking. Even those with functional knowledge are far more capable of dealing with the world of higher education today than most students I encounter in India. The single most important variable here would have to be that of mother tongue instruction combined with later exposure to a language that gives students access to resources not so readily available in Chinese. It’s a different matter that Internet use is so heavily policed in China. However, every person I know inside and outside the university has figured out how exactly to access the resources they want, which is much more than can be said of Indian students who don’t experience government-imposed firewalls. So, again, is the ability to navigate the digital domain related to language skills or critical skills?

Lack of clarity

The inability to create a systematic curricular exposure to language and critical skills is perhaps what prompts periodic outbursts like the Central Board of Secondary Education (CBSE) directive to replace German in Kendriya Vidyalaya schools with Sanskrit. Combined with this lack of application is what can only be seen as the extraordinarily resilient prejudices about what constitutes “Indian culture.” We routinely tend to forget that this is a modern concept, mobilised by colonialist as well as nationalist perspectives on our society. Lack of clarity about what education is for leads to muddled thinking about what should be done in the space of education. We should not confusedly believe that the primary task of education is to pass on ways of living — we do that in almost every domain of social engagement. The task of education is to foster and strengthen cognitive capacities that can equip students to produce original knowledge on their own terms, for which we are likely to need bilingual and trilingual education. Debating whether we should learn Sanskrit instead of German is a distraction from the real tasks that lie ahead. We need to reorient the language debate to focus not on learning the language (any language) but learning how to think.

Language use analysis

The CBSE circular of June 30, 2014, instructing its affiliated schools to observe ‘Sanskrit Week’, introduced the topic by stating that “Sanskrit and Indian culture are intertwined as most of the indigenous knowledge is available in this language.” It’s shocking to see that people in the business of education are unaware about the fundamental histories of language use in our country, and that mere assertion can pass for accurate information. Apart from the facile collapsing of “culture” onto “knowledge,” the circular’s statement about Sanskrit as the language of indigenous knowledge appears as a sweeping generalisation when you look at it from the point of view of medical, artisanal or performing arts knowledge forms. Even if we stay with just one example, that of indigenous medicine, and even if we stay with the venerable Council of Scientific and Industrial Research (CSIR) and its Traditional Knowledge Digital Library (TKDL), a quick overview of the books listed would show that the languages of indigenous knowledge include Persian, Arabic, Urdu and Tamil in addition to Sanskrit. The library currently lists 137 Tamil books on Siddha, for example, with 157 Sanskrit books on Ayurveda. Some of this knowledge is also available in Malayalam, like the important works on vishavaidyam.

Coming to contemporary language use in India, it would be important to note that just as modern Kannada, Marathi or Telugu for example have drawn on Sanskrit to build their vocabulary, they have equally strongly drawn on other languages. Here are some sample Kannada words that reveal the original language coiled inside the present day usage: adalat, vakila, javabu, ambari, gulabi, sipayi, taakathhu, firyadu, bunadi, najooku (Persian/Urdu). This kind of sampling could be replicated for any contemporary Indian language, and an exhaustive mapping exercise might reveal fascinating borrowings and transformations that gesture well beyond language use.

Most of our languages cannot sustain teaching and research in the context of the modern university and its disciplines. We need to create critical vocabularies across several conceptual domains. Students need to learn the ability to distinguish between levels of meaning, to contextualise/translate, and to create new concepts that capture the life of our societies and our institutions. And in doing this, they have to learn to draw on multiple linguistic resources.

Ensuring the entry of Indian language resources into the mainstream of our higher education system is a long-delayed project. By bringing these resources into a national educational structure, we will be (a) expanding the analytical abilities of these languages, and (b) making the curriculum more relevant to the society we live in. The long-term objective should be to make the student bilingually proficient, so that he is able to bridge effectively the conceptual worlds of the local and the global.

(Tejaswini Niranjana is with the Centre for Indian Languages in Higher Education at the Tata Institute of Social Sciences, Mumbai. She is also a Distinguished Fellow at the Centre for Internet and Society)

For more details visit https://cis-india.org/openness/blog-old/the-hindu-december-6-2014-tejaswini-niranjana-beyond-the-language-tussle

The Broadcasting Treaty: A Solution in Search of a Problem?

praskrishna — 2015-01-09T02:31:55Z

Nehaa Chaudhari was one of the speakers at this side event held on December 10, 2014.

See the details on Knowledge Ecology International website.

On Wednesday, 10 December 2014, Knowledge Ecology International (KEI) will convene a side event entitled, "The Broadcasting Treaty: A Solution in Search of a Problem?"; the event will take place in Room B of the World Intellectual Property Organization (WIPO) from 13:30 to 15:00. Speakers include: Nehaa Chaudhari, (Programme Officer at Centre for Internet and Society, New Delhi/Banglaore), Jeremy Malcolm, (Senior Global Policy Analyst, Electronic Frontier Foundation), James Love, (Director, KEI) and Viviana Munoz Kieffer, (Coordinator, Innovation and Access to Knowledge Programme, South Centre).

Background

Since its first SCCR (Nov 2-10, 1998) WIPO and member states have been asked to resolve the requests for new legal protections for broadcasting organizations. All participants to the SCCR were asked then "to submit, by the end of March 1999, proposals and/or views in treaty language or in other form."

Since then the rights of broadcasting organizations have been on the agenda. While the committee is still trying to identify precisely the problems Broadcasters' rights (or right?)to be solved (piracy in its broadest definition?), the proposal for a new international norm setting may create a new layer of post fixation rights in content that broadcasters do not create, license nor own.

The demandeurs i.e. some of the broadcasting organizations representatives and some member states are listing endless rights such as transmission, retransmission or deferred transmission whether simultaneous or near simultaneous on demand of a broadcast signal to the public, as well as transmission over the internet. Most of these rights exist in some form or another in most WIPO member states. However, for many SCCR participants, if the committee truly wants to move forward on this new norm setting exercise it must focus on a narrow treaty based on a single right corresponding to the core need of broadcasting organizations for protection from signal piracy.

After 15 years of negotiations, formal and informal, text based or not, it is time to answer some of the following questions:

Would adding a new layer of rights over content on the internet be consistent with the committee's mandate to limit protection to the broadcaster's signal?

Would the new international right (or rights) have an impact on consumers and creative communities globally?

Would the new instrument have the necessary exceptions for quotations or news of the day?

Would the extension of the rights under discussion to cable television (and services which already require subscriber fees) create a redundant layer of protection to services already protected under other legal regimes and thus be anticompetitive?

Would the protection of over the air broadcast signal be sufficient for broadcasters? If not why not?

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