by Manon Ress
According to a paper commissioned by UNESCO, the draft Treaty would expand the level of protection granted to broadcasting organizations and the beneficiaries of such protection (adding cablecasters and possibly webcasters), may prevent access to materials in the public domain, obligations for TPMs may endanger copyright policies underpinning restrictions, and the term of protection (50 years!) would not be consistent the rationale of recovering investment.
April – June 2006The Draft WIPO Broadcasting Treaty and its impact on Freedom of Expression
Commissioned by UNESCO and prepared by Patricia Akester
This study was subject to a peer-review carried out by Professor J. Ginsburg, Professor T. Dreier and Dr. U. Suthersanen.
[...]Conclusions and Recommendations
The draft Treaty (1) would expand, in the international arena, the level of protection granted to broadcasting organizations and the beneficiaries of such protection (adding cablecasters and possibly webcasters), (2) the proposed legal framework may prevent access to materials in the public domain, (3) obligations as regards technological measures may endanger copyright policies underpinning restrictions, and (4) the term of protection would not be in accordance with the underlying rationale of recovering investment.
Digital technology brought with it amazing techniques for copying and dissemination of information, consequently affecting copyright’s delicate inner balance. In this environment, technological measures for protection of copyright have been fostered, and in the international arena the trend seems to be towards the adoption of compulsory legal protection of these measures and establishment of broad rights, whilst devising non-mandatory exceptions.
In line with this move, the Draft Broadcasting Treaty would give broadcasters and cablecasters (and possibly webcasters) broad rights which in parallel with technological measures and ambiguity as to protected subject-matter could prevent or restrict the flow of information with respect to materials which may not be protected by copyright, such as news of the day, or which are in the public domain, because their term of protection has expired or in relation to materials created by third parties who do not wish to prevent dissemination of the latter.
Thus, the Draft Treaty may undermine the balance between the economic interests of broadcasting and cablecasting organizations and freedom of expression values.
On the premise that the significance of protection should be emphasized without failing to remember the democratic benefits ensuing from the subsistence of a suitable set of restrictions to such protection, the following recommendations are made:Recommendation 1 – Scope of protection
The uncertainty as to the scope of application of the Draft Treaty, as described above, may enable broadcasting and cablecasting organizations to control both signal and content. This would conflict with the right to freedom of expression, as it could, for example, prevent use of a work in the public domain once it has been broadcast.
To overcome this uncertainty it is recommended that a definition of broadcast is presented that expressly circumscribes the ambit of protection granted by the Draft Treaty, assuring that it covers the broadcast signals but not the broadcast work, thus allowing use of the latter from another provenance.Recommendation 2 – Exceptions and limitations
As it stands this Treaty may undermine certain exceptions enshrined in the copyright laws of many countries.
It is recommended that the Draft Treaty sets out a list of exceptions and limitations that are not in discrepancy with copyright law nor with signal protection. Restrictions for certain purposes could be established in line with the ones currently recognized under Article 15 of the Rome Convention: private use, reporting of current events, ephemeral recordings and use for teaching and scientific research.
The Draft Treaty should delineate the contours of exceptions and limitations, leaving to domestic legislators the task of setting out more clear-cut provisions.
These exceptions and limitations would serve the public policy objective to disseminate information - an exponent of freedom of expression. Exceptions and limitations that exist in order to protect free flow of cultural, academic and educational information should be preserved as much as possible in a broadcast environment.
Secondly, Contracting Parties should also be given the chance to provide for further exceptions and limitations in accordance to the three-step test. But because the three- step test could override the national systems of restrictions, an agreed statement should be introduced expressly safeguarding national exceptions and limitations that are deemed compatible with the Treaty, including restrictions regarding the work broadcast - thus assuring, to an extent, the ability for Contracting Parties to shape their national laws according to their needs, individual traditions and cultures.
Thirdly, another agreed statement should make clear that the protection granted to broadcasting and cablecasting organizations does not cover the situation where national laws relating to the protection of the work broadcast would permit the work to be used.
Therefore, the list should be open-ended, encapsulating the core cases of exceptions and limitations on the basis of the imperatives of freedom of expression, seen as the dominant rationalization of restrictions per se.
This methodology would help maintain the balance between exclusive rights and restrictions, supporting strong rights and preserving breathing space for freedom of expression and enlightenment values.Recommendation 3 – Term of protection
It is recommended that the Draft Treaty (1) takes an investment-orientated approach, by extrapolating the equivalent Rome provision, therefore arguably enabling broadcasting or cablecasting organizations to recover its investment effort, or (2), as a minimum solution expressly prevents perpetual renewals of terms of protection.Recommendation 4 – Obligations concerning the protection of technological measures
Where legal boundaries addressing works and broadcasts become distorted, underlying policies which dictate, for instance, that certain materials which are broadcast are not protected by copyright because they have entered the public domain or because they do not comply with originality requirements, may be put at risk.
The Draft Broadcasting Treaty would enable broadcasting and cablecasting organizations to control materials that are in the public domain by transmitting them. In contrast, copyright protection is not granted to authors unless there is a certain degree of originality involved in the process of creation.
If copyright imperatives are not to be supplanted by the Draft WIPO Broadcasting Treaty, it is recommended that the creation of legal obligations concerning technological measures for protection of broadcasts be accompanied by an agreed statement according to which (1) such obligations will not cover the situation where national laws relating to the protection of the work broadcast or the broadcast itself would permit the work to be used (2) circumvention of a technological measure for protection of a broadcast will be allowed where it is required to enable a non-infringing use -of a work or a broadcast- and the means to carry out such use have not been made available by the respective rightholders.
The recommended approach would avoid the need for users to resort to burdensome and potentially ineffective processes in order to be able to benefit from restrictions where rightholders have not made available to the beneficiaries the means of benefiting from such restrictions.
Lastly, legal obligations concerning technological measures for protection of broadcasts should only cover the act of circumvention. If legal protection is extended to facilitation of such acts, it should be restricted to devices the sole or main purpose of which is to circumvent such measures.
According to the preamble of the Draft Treaty:
“Recognizing the need to maintain a balance between the rights of broadcasting organizations and the larger public interest, particularly education, research and access to information, “Recognizing the objective to establish an international system of protection of broadcasting organizations without compromising the rights of holders of copyright and related rights in works and other protected subject matter carried by broadcasts, as well as the need for broadcasting organizations to acknowledge these rights.”
But this elementary theoretical consideration has to be reflected in the provisions of the Draft Treaty and then applied in praxis.