Outstanding Issues

1. The draft treaty will create untested exclusive rights for webcasters by making them beneficiaries of the treaty.

The webcasting appendix is part of the main text, despite opposition to its inclusion in the treaty by a majority of Member States. Even though webcasting is framed as an “opt-in” provision, it creates a backdoor for the upward harmonization of webcasting rights. The current open architecture of the internet has engendered a robust ICT industry thus obviating the need for "incentives" supposedly created by exclusive rights. Furthermore, these new rights will hurt copyright owners by creating rival channels to exploit their works and threaten the public domain works. There are serious definitional problems with the proposal's approach to webcaster rights. It is so broad that it will burden all World Wide Web content (including text and still images) with a rights framework that was designed for broadcasting radio waves over the air.

2. The draft treaty does not effectively address protection against signal piracy but grants broad exclusive rights to transmitters regardless of their actual needs.

The draft treaty grants exclusive rights for retransmission, fixation, reproduction, deferred transmission based on fixation, and making available of fixed broadcasts in exclusive rights for a term of 50 years. In their zeal to create a treaty to address protection against signal piracy, WIPO and its Member States have turned to the exclusive rights based model of WIPO “Internet” treaties for inspiration. It is not clear why the draft treaty has not adopted a purely signal protection based approach as it would directly address the issue of signal piracy without the negative externalities associated with the current draft. The exclusive rights system envisioned by the draft treaty is a case of the cure killing the patient.

3. The draft treaty would grants broadcasters, cablecasters and webcasters a new layer of sui generis rights to protect creative works already protected by copyright

For the public, a broadcast is not only an important source of entertainment, it is also and essential source of information, the dissemination of cultural goods and provides much needed educational content in many countries. Broadcasts include copyrighted content that is licensed to a broadcasting organization and content in the public domain. The proposed treaty on the protection of broadcasting, cablecasting and webcasting organizations creates new limits on the rights of citizens to use knowledge goods, undermining important limitations and exceptions in traditional copyright laws, builds barriers for innovation and the dissemination of knowledge goods and increases the opportunity for anti-competitive practices, such as segmenting markets, which raise costs and limit consumer access to culture and information. For audiovisual creators and performers, broadcast is essential to communicate their works and get access to other creators' works. While we recognize that broadcasters are providing an important service and need to protect their signal, it is not clear why they should be granted an additional layer of exclusive rights "like copyrights". Broadcasting organizations are already protected all over the world if not under a related rights regime under other regulatory regimes.

4. The draft treaty does not clearly define the difference between content and signal and includes all work protected and non protected.

Although Article 3 of the draft treaty is careful to delineate the scope of application to signals and “not to works and other protected subject matter”, it is silent on the matter of non-protected works and non-protected subject matter (i.e. data, facts and works in the public domain). This leaves the door open for abuses of the treaty which could encroach upon the public domain. Despite the caveat of Article 3 which appears to give comfort to content owners that their rights will not be eroded, the treaty confers upon broadcasters, cablecasters, and webcasters the exclusive rights to authorize retransmission, fixation, reproduction, deferred transmission following fixation and making available of fixed broadcasts. This gives rise to a potential logjam of overlapping rights and conflicts; under the current draft treaty, even if a copyright holder or related rights holder authorized program material to be incorporated in a broadcast/cablecast/webcast by a third party, the third party would still need to seek permission from the casting entity. In addition, for works in the public domain, the treaty would have the deleterious effect of locking up works and subject matter in the public domain for 50 years.

5. The draft treaty is giving more rights than the Rome or TRIPS but does not grant more exceptions.

The draft treaty does not grant limitations and exceptions commensurate to the broad rights conferred upon broadcasters, cablecasters and webcasters. Thus while the proposed treaty strengthens the control of these casting organizations over their transmissions by providing a package of exclusive rights on retransmissions, fixation, reproductions, deferred transmission following fixation and making available of fixed broadcasts, the limitations and exceptions envisaged by the main draft treaty text are modest. Article 12 of the draft treaty frames the limitations and exceptions to the rights of casting organizations under the architecture of Article 15.2 of the Rome Convention and the Berne Convention’s three-step test for copyright. However, these limitations and exceptions do not adequately address the concerns of right holders with the respect to the demarcation between copyright and related rights protection and signal protection. As noted raised by the Government of Canada at the 10th SCCR,

[i]n the case where a broadcaster would transmit content protected by copyright or related rights, the owner of that content should have the right to authorize any act which would otherwise require the consent of the broadcaster. In this way the rights of broadcasting organizations would not interfere with the rights in the content.

With respect to the transmission of subject matter NOT protected by copyright or related rights, the Brazilian intervention at the 13th SCCR provided language where a Contracting Parties were given the flexibility of exempting from protection “[a]ny 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 the subject of the transmission is not protected by copyright or any related right thereto” provides an effective complement to the Canadian proposal.

It is disappointing that the main draft treaty text does not contain the constructive proposals by the Government of Brazil on “General Public Interest Clauses” and the Government of Chile on “Defense of Competition”. The Brazil proposal on general public interest clauses underscores the principle that protection for broadcasters, cablecasters and webcasters should not undermine access to knowledge or cultural diversity.

Along with limitations and exceptions, competition policy is another instrument in a State’s arsenal to curb the abuse of copyright and related rights. Consequently, the Chilean proposal a timely as it tracks the language of Article 40 of the TRIPS Agreement which prescribes measures on remedying anti-competitive practices.

6. The draft treaty extends the term of protection for broadcasts from 20 years to 50 years without providing a clear rationale for the extension.

The explanatory note prepared by the Chair and the International Bureau asserts that the 50 term of protection in Article 13 corresponds to Article 17(1) of the WIPO Performances and Phonograms Treaty (WPPT) concerning the term of protection of performers’ rights. TRIPS Agreement and the Rome Convention currently require a 20 year minimum term of protection for broadcasting organizations which is supported by Singapore, India, Brazil and the Asian Group. The extension in the term of protection accorded to broadcasters to achieve parity with performers is unwarranted considering that this draft treaty creates a precedent for rewarding investment by conferring monopoly privileges for non-creative endeavors.

7. The draft treaty creates a new layer of orphan works.

The draft treaty appears to be silent with respect to “orphan works” consisting of subject matter and other works whereby the original author of a work or subject matter transmitted through a broadcast, cablecast, and webcast cannot be identified. As the copyright status of orphan works is ambiguous, the current paradigm of the draft treaty would create an additional layer of exclusive rights for orphan works.

8. The draft treaty grants broadcasters, cablecasters and webcasters legally sanctioned technological protection measures that are useless for works already protected by TPMs and against the public interest in the case of non-protected works.

The proposal to allow broadcasters the right to use technological protection measures (TPMs) is not required to protect broadcasters signals and would pose threats to the rights of consumers and the investigative work of consumer organizations. TPMs act as locks that can be used to prevent access to broadcasts, and to segment markets using region coded TPM’s so broadcasters can raise prices and limit the availability of products.

The costs to the public of the restrictions caused by TPMs far outweigh any benefit to broadcasters. TPMs previously approved by WIPO have been shown to harm competition and technological innovation but have not been effective in stopping copyright infringement. It is therefore inappropriate to grant legal protection to a further and broader layer of technical measures.

The proposed Treaty outlaws circumvention of technology locks that prevent fair use. The Proposed Treaty forbids the decryption of broadcast signals, even if the programming is in the public domain or when its creator does not wish to suppress its distribution. It outlaws a broad range of devices (including personal computers), software, and other technical information that could help a consumer to decrypt a broadcast signal. Without the ability to circumvent technological locks consumers are unable to exercise any exemptions, such as private copying. They are thus left with a paper right without a remedy, while broadcasters have legally and technologically. enforceable rights. The restrictions on anti- circumvention should be removed from the treaty. The Colombian proposal to permit non-infringing use of a broadcast through the circumvention of a TPM is a welcome step in the right direction to redress the concerns of the public.

For more information, see: http://www.cptech.org/ip/wipo/bt/index.html