Monday, October 16, 2006

Who are the new beneficiaries of the proposed WIPO broadcasting treaty?

by Manon Ress
The truly new players at WIPO are the cablecasting organizations. Until now they were no where in international treaties or agreements of any kind. Who are they? Can someone clarify?

Looking at Article 5 and 6 of SCCR/15/2 (the basic draft treaty for now), I still have questions:

Are the new beneficiaries of protection, the cablecasting organizations, like Comcast or rather more like MTV and HBO? Or both?

According to Wikipedia, Cable television : Adelphia | Bresnan | Bright House Networks | CableOne | Cable TV Hong Kong | Cablevision (US) | Cablevision (Canada) | Canal Digital | Charter | Cogeco | Columbus Communications | Comcast | Com Hem | Cox | Eastlink | Foxtel | GCI | Global Destiny | Globosat | Insight | Kabel Deutschland | Knology | MASTV | Mediacom | Midcontinent Communications | Millennium Digital Media | NTL | Neighbourhood Cable | Net Brasil | Ono | Optus | Persona | RCN | Rogers | Service Electric | SkyCable | SelecTV | Shaw | StarHub CableTV | Suddenlink | TDC | Tele2 | Telewest | Saturn | Time Warner | TransACT | Vidéotron | WOW! Internet Cable Phone | WightCable

In general, a cable television operator chooses the channels and services that are available on its cable system.....

Channels are for example in the US: Fox, HBO, A& France, for example Canal +...

And here are the definitions and scope (with WIPO's explanation after each item):

Article 5


For the purposes of this Treaty,

(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;

WIPO explanantion: The definition of “broadcasting” in item(a) contains the classical definition of broadcasting. It attaches itself to the tradition of copyright and related rights treaties in which the notion of “broadcasting” is confined exclusively to transmissions by wireless means, by radio waves propagating freely in space, i.e., radio waves or Herzian waves. Consequently, no transmissions by wire are included in “broadcasting”. Because this definition would be based on the traditional notion of broadcasting, no possibility of uncertainty or interference could emerge in the interpretations of existing treaties. The definition follows the definition found in Article2 of the WPPT. The first sentence of the definition is built on the prototype definition of broadcasting found in Article 3(f) of the Rome Convention. Article 11 bis of the Berne Convention operates with the same concept of broadcasting. For the sake of completeness, the expression “of sounds or of images and sounds” has been replaced by “of sounds or of images or of images and sounds”. It is proposed that “transmissions over computer networks” be excluded from “broadcasting” in order to make clear that computer network transmissions, even when transmitted by wireless means, are not intended to qualify as broadcasting.

Certain Delegations proposed a broader definition of “broadcasting” that would comprise not only wireless transmissions but also transmissions by wire, “including by cable or satellite”. A narrower definition of “broadcasting” has been proposed in the Draft Basic Proposal for consistency with existing treaties in the field of copyright and related rights. Transmissions by wire, including by cable, are defined as “cablecasting” in the Draft Basic Proposal. The end result concerning the scope of application of the Treaty (by providing separate definitions for “broadcasting” and “cablecasting”) is exactly the same as by using the broader definition of “broadcasting”.

(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;

WIPO: Item(b) defines the term “cablecasting”. The definition follows mutatis mutandis the definition of “broadcasting” in item(a), and also in the WPPT. The notion of “cablecasting” is confined to transmissions by wire. No wireless transmissions, including by satellite, are included in “cablecasting”. In the definition, the interpretative clause referring to encrypted signals is maintained. For the same reason as in the case of the definition of “broadcasting”, “transmissions over computer networks” are excluded from the notion of “cablecasting”. The definition of “cablecasting” is needed if the notion of traditional broadcasting is adopted in the Treaty as proposed, but would be superfluous if the Treaty were based on a broader notion.

(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 representations thereof, and the assembly and scheduling of the content of the transmission;

WIPO: The definition proposed in item(c) consists of three main elements: (1) the person shall be a “legal entity”, (2) taking “the initiative” and having “the responsibility”, for “the transmission”, and (3) for “the assembly and scheduling of the content of the transmission”.

In the Treaty there is no definition of the term “broadcast” and no definition of "cablecast".

(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 be a retransmission;

WIPO: Item(d) contains a definition of “retransmission”. The notion of “retransmission”, in the defined form, embraces all forms of retransmission by any means, i.e. by wire or wireless means, including combined means. It covers rebroadcasting, retransmission by wire or cable, and retransmission over computer networks. Retransmission is relevant only when it is done by another person than the original transmitting organization, and done for the reception by the public. This is manifested in explicit terms in the proposed definition.

It follows the definition of “rebroadcasting” of the Rome Convention which is confined only to simultaneous broadcasting of the broadcast of another broadcasting organization. The Berne Convention also operates in a similar manner; Article11bis(1)(ii) sets forth the rights of authors in respect of their broadcast works, using the concept of simultaneous retransmission (using the expression “communication to the public by wire or by rebroadcasting”).

(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;

WIPO: Item(e) contains, for purposes of the Treaty, a very specific, narrow definition of “communication to the public.” It refers to the special case of public performance to an audience present in the place where the performance (“rendition,” “display,” etc.) takes place. It draws upon the concept used for television broadcasts in Article13(d) of the Rome Convention but extends to the communication to the public of program content of transmissions, or retransmissions, conveying both sounds and images and sounds.

Communication of this type may include the reception of a signal and projection of the program content of the broadcast to the public in a café, hotel lobby, the premises of a fair, on the screen of a cinema, or in other premises open to the public. The definition is meant to include making program content audible and/or visible to the public through a radio or a television set located in the types of premises mentioned above. In one proposal “communication to the public” was limited to television as in the Rome Convention. In other proposals “communication to the public” was extended to “communication” or “rendition” to the public from a fixation of a transmission. Some Delegations limited the right to control the “communication to the public” to places accessible to the public only upon the payment of an entrance fee. The extent of the right in this respect shall be decided in the context of Article 10. Finally, it should be noted that the expression “(any) communication to the public” has been used for different purposes in the Rome Convention and the WPPT, and in the Berne Convention and the WCT, as compared to this new Instrument and each other.

(f) “fixation” means the embodiment of sounds or of images or of images and sounds or of e representations thereof, from which they can be perceived, reproduced or communicated
through a device.

WIPO: Item (f) defines the term “fixation”. It follows the definition of “fixation” in the WPPT. After the phrase “embodiment of sounds”, the phrase “or of images or of images and sounds” has been added. The term “embodiment” covers the result of incorporating or recording program material carried by a signal using whatever means and whatever medium. Furthermore, it should be pointed out that, as in the corresponding definition in the WPPT, the definition of fixation does not qualify or quantify the duration of the life of the embodiment necessary to result in fixation. There are no conditions regarding the requisite permanence or stability of the embodiment.

Article 6

Scope of Application

(1) The protection granted under this Treaty extends only to signals used for the
transmissions by the beneficiaries of the protection of this Treaty, and not to works and other protected subject matter carried by such signals.

(2) The provisions of this Treaty shall apply to the protection of broadcasting organizations in respect of their broadcasts.

(3) The provisions of this Treaty shall apply mutatis mutandis to the protection of
cablecasting organizations in respect of their cablecasts.

Paragraph(3) is the provision by which Contracting Parties will extend protection, by
mutatis mutandis (the necessary changes having been made) application, to cablecasting organizations.