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

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 Honble 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 Indias 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 doesnt 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 arent 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 doesnt 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 hasnt 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 doesnt 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 doesnt 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 dont conflict with normal exploitation of the work and dont 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 doesnt conflict with a normal exploitation of the work and doesnt 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