Why, who, what and how
James Love
KEI
October 4, 2018
Why?
Pulative rationale: Traditional broadcasters face challenges as regards piracy
Broadcasters want economic rights in content they do now own, and regardless if they license or pay the content owners.
Broadcasters are facing competition from Internet based services that operate with fewer rights, but provide services that the public prefers.
Who
SCCR/36/6 DEFINITION OF BROADCASTING ORGANIZATION
(d) “broadcasting organization” [and “cablecasting organization”] means the legal entity that takes the initiative and has the editorial responsibility for broadcasting [or cablecasting], including assembling and scheduling the programmes carried on the signal. Entities that deliver their programme-carrying signal exclusively by means of a computer network do not fall under the definition of a “broadcasting organization” [or a “cablecasting organization”].fn2
fn2 Agreed Statement regarding the definition of “broadcasting organization”: For the purpose of this Treaty, the definition of broadcasting organization does not affect the Contracting Parties’ national regulatory framework for broadcasting activities.
What
SCCR/36/6, DEFINITIONS OF PROGRAMME AND PROGRAMME CARRYING SIGNAL
(a) “broadcasting” means the transmission either by wire or wireless means for reception by the public of a programme-carrying signal; such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent. [Transmissions over computer networks shall not constitute “broadcasting”]. For the purpose of this Treaty, the definition of “broadcasting” does not affect the Contracting Parties’ national regulatory frameworks.
(b) “programme-carrying signal” means an electronically generated carrier, as originally transmitted and in any subsequent technical format, carrying a programme.
(c) “programme” means live or recorded material consisting of images, sounds or both, or representations thereof.
Broadcasting technology is changing
Table 1: Selected developments in technologies to distribute, broadcast or stream audio and audiovisual content (html, GoogleDoc)
Risks
Costly and time consuming requirements to clear rights
Orphaned works
Enclosure of works not otherwise protected
Restrictions on access to knowledge
Inequitable distribution of income from creative works to entities that do not create, own, license or pay for works
Person who creates the work can have fewer rights than the broadcaster
Person who creates the work may no longer have their own copy of the work that is not subject to a broadcaster right.
The WIPO Broadcasting Treaty. A Conceptual Conundrum, KEI Seminar, Appraising the WIPO Broadcast Treaty and its Implications on Access to Culture, Geneva 3-4 October 2018
Prof. P. Bernt Hugenholtz, Institute for Information Law (IViR), University of Amsterdam
“Obviously, granting IP rights for no good reason can have serious negative consequences, both for the economy and for society at large. The temporary monopoly that the IP right entails not merely creates an obstacle to freedom of competition. Because much of the content that broadcasters transmit is of some cultural significance, it also bears the risk of impeding access to culture. More generally, freedom of expression and information is at stake here.
“In this digital age, the risks of overprotection should not be underestimated. The days when redundant IP rights were simply not exercised by the right holders and therefore could do little harm, are over. Today, enforcement of rights is increasingly automatic, or should I say ‘robotic’. Platforms such as YouTube automatically detect and block infringing content, based on content ‘fingerprints’ provided by right holders. This is why, for example, Champions League football highlights uploaded by enthusiastic football fans, disappear from YouTube so rapidly. The forthcoming European DSM Directive will make this technology mandatory for YouTube, Facebook and other large platforms.
Some possible damage control
Eliminate post fixation rights
Limit rights to OTA broadcasts
Limit the rights to broadcasts that are not behind a paywall
Limit rights to sporting events
Limit rights to case where third parties commercially exploit post fixation uses
Option for compulsory licensing, remuneration rights, rather than exclusive rights (note that traditional broadcasters have benefited from compulsory licenses on copyrighted content).
Formalities (allowed in the Rome Convention)
Mandatory Exceptions
Annex
Thiru’s KEI timeline on broadcasting negotiations