Views on on the proposed WIPO Treaty for the Protection of Broadcasting Organizations at side-event organised by Knowledge Ecology International

Good afternoon, everyone.

My presentation will be in reference to the revised consolidated text SCCR 36/6 and the US proposal SCCR 37/7.

In essence, this treaty is trying to create a new set of rights for broadcasters operating in both mediums (first, traditional –satellite, airwaves, cables, and second, the internet), ostensibly to countersignal piracy. We are looking at updating a neighbouring rights or related rights regime to protect signals across both mediums.

The intent of treaty is to exclude entities exclusively delivering their programmes over the internet. I fear that the results would create an unequal playing field between broadcasters and internet streaming entities. This would be the first, immediate impact. To then catch up, perhaps, internet streaming services would look to satisfy the treaty requirements to avail protection. This would involve satisfying the definition of a broadcasting organisation (as in SCCR 36/6), and for their country to have ratified the treaty. The characteristics of a broadcasting organisation can be satisfied by acquiring any traditional broadcasting service, for such an entity, as per the current text of the treaty. This would require serious capital, and most start up innovations in the area would not be in a position to undertake such a step. And then there is the question of asserting the rights and enforcing them in other countries – this will be an extremely expensive affair. The point I’m trying to make is that this treaty seems to be set to protect a narrow slice of broadcasters, with significant market power in their home markets.

My co-panelists will discuss specific harms that this will have on the building of commons, and other damaging effects on global efforts to build an affordable and accessible knowledge system. This is unfortunate, and hence we urgently need text that provides for a mandatory list of limitations and exceptions, and not work with the soft language that is present right now. We have to accept that multilateral norm-setting at the international level sets the tone for countries to enact their own national legislations – indeed, before the Marakkesh treaty there were hardly any developing countries which had an expansive beneficial copyright exception for the visually impaired (except India – that I’m aware of), and look who the first few countries to ratify the treaty were – India, Argentina, El Salvador, Paraguay, Uruguay, etc – all developing countries leading to adopt this international standard.

The US delegation’s proposal, introduced yesterday, pushes the idea of limiting exclusive rights granted under this treaty to broadcasting organisations, so long as the countries provide adequate protection against piracy in other bodies of law. This seems like a promising idea – one that does not upend the legal theories of neighbouring rights and also shrinks the proposed model in the treaty that seeks to grant monopolistic property rights for a long and unclear period of time to powerful organisations –organisations that by their very nature and functions are chroniclers of our times and keepers of valuable cultural heritage.

At a seminar on this very treaty organised last month by KEI, Proffessor Bernt Hugenholtz flagged off the problematic justifications provided for increasing the strength of this neighbouring right. He said that the justifications should indicate a corresponding increase in cost of disseminating content. Should new exclusive rights be created for gradation-like increase in investment? He was not convinced that the costs had gone up significantly, and he also pointed out that this cost should not account for money spent on acquiring the rights to broadcast the content.  Further, going back to the US proposal, the proposal recognises the persistent conceptual difficulties of distinguishing between signal protection and content protection. This very difficulty has been raised by many civil society organisations in the past, and more recently it cropped up at a discussion on the treaty in New Delhi, where both civil society organisations and representatives of broadcasters were present. Another practical challenge (that remains) will be to separate the computer network based operations from the non-computer network based operation; however, in this age, is it technically possible to do that?

To conclude, I think that fundamental concepts and terms need to be properly clarified to arrive at an understanding that is shared across all stakeholders; and a corresponding strengthening of limitations and exceptions is urgently needed.

Thank you.

For a complete list of speakers at the event, please click here.