Thursday, May 04, 2006

WIPO copyright committee discusses simulcasting/webcasting and mulls way forward

5 May 2006
Thiru Balasubramaniam
16:59 (Geneva time)

This is the last hour of the 14th Session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) meeting yet again to discuss a proposed treaty for the protection of broadcasters, cablecasters and webcasters. Simulcasting has been discussed over the last two days. An example of simulcasting would be the British Broadcasting Corporation (BBC) showing a speech or a movie in the public domain on its website.

As currently defined by WIPO's draft basic proposal, simulcasting is covered by Article 6
Broadcasting organizations shall enjoy the exclusive right of authorizing the retransmission of their broadcasts by any means, including rebroadcasting, retransmission by wire, and retransmission over computer networks.

This wording would give broadcasters the right of simultaneous retransmission over a computer network. Article 6 has been viewed with concern by some as a Trojan horse mechanism of giving "webcasting" privileges to traditional broadcasters. The Chair (Jukka Liedes of Finland) noted that there was considerable opposition to the inclusion of webcasting but some broader support for simulcasting. However, delegations such as India, Brazil and South Africa expressed reservations to including simulcasting in the treaty. India suggested deleting the phrase "by any means" and "over computer networks".

At the wrap-up of last night's session, Mr. Liedes underscored the importance he attached to retransmission rights which would include simulcasting. Mr. Liedes stressed that deleting references to simulcasting would empty the whole treaty of its purpose. He also noted that the deletion of simulcasting would deprive traditional broadcasters of protection of their broadcasts retransmitted over the internet.

There is a danger if simulcasting is covered under this treaty, webcasting will creep back into a later formulation of the Treaty text or a subsequent protocol as evidenced by the intervention of the United States of America today which articulated its concern that excluding webcasting while including simulcasting would confer upon broadcasters and cablecasters an unfair advantage over such corporations as Yahoo.

The delegate from India noted that while his delegation could "sympathize with concerns of broadcasting organization about signal piracy or unauthorized retransmission over computer networks" this would be a difficult obligation to administer because of limited knowledge of internet enforcement.

He stressed that it is
difficult to know where source of digital transmission is, so to be effective enforcement would amount to effective regulation of entire Internet. we therefore find it very difficult. While it seems attractive conceptually, it is fraught with many practical, legal uncertainties. Article 6 needs to be cleansed of the words "by any means" and "over computer networks"...Simulcasting or transition by computer networks should not be contained in the draft basic proposal on traditional broadcasting...I would remind many that we often have technology neutral goals but in actuality many member states have much more specific laws relating to the Internet and other forms of digital transmission and case law on the subject is extremely limited. Therefore it is better and more appropriate for all of us to hasten slowly and not plunge, until we know the consequences of what is involved.

Mr. Tilman Lueder from the European Commission speaking on behalf the European Communities and its 25 Member States gave a lengthy intervention on the nature of simulcasting. Mr. Lueder highlighted that in large countries such as the United States, Brazil, India and Canada, "retransmission is the lynchpin to make a signal more perceptible over long distances" where signals could not travel coast to coast but needed to be relayed. Mr. Lueder noted that the protection of digital signals was of utmost importance and underscored that fact that television is mostly about entertainment and not just limited to educational and scientific purposes. He remarked that if broadcasters and those who scheduled and assembled content were not protected, there would nothing left to steal.

India responded by thanking the European Communities for being educated on the distinction between analog and digital signals. He stated that content is now being digitalized, but the difference is that the content may be digitalized but it may still be transmitted over analog waves.
We are talking about retransmission on the terrestrial network where signal does get abated and needs to get 'boosted' and retransmitted, whereas digital signal does not abate. Satellite carriers carry digital signals in a more efficient manner. Therefore 'retransmission' has a very different meaning today. Notwithstanding this issue as to what retransmission exactly means. What we are talking about is the IPR over those transmissions. We need to define the broadcast clearly so that we know who has IPR over that broadcast. When we talk about the internet we are talking about something outside of traditional broadcasting. My understanding of Berne and TRIPS is that even the content owners don't have full rights over their work on the internet to then assign a new right (which does not yet exist) to broadcasters in relation to the internet is unsupportable. What we are really talking about is the IPR over those transmissions and as I mentioned, the broadcast itself has to be defined to understand who has the IPRs over the content. Copyright owners do not have full and adequate protection themselves on the Internet, therefore to give broadcasters rights over the Internet becomes even more untenable. Therefore that is why we have been talking about the IPRs over content. A broadcast needs to be defined with respect to its relationship with intellectual property.

As there was considerable opposition to webcasting and simulcasting in the draft treaty text for the protection of broadcasting organizations and cablecasting organizations, Mr. Liedes suggested the modalities for the following SCCR:

A. Protection of traditional broadcasting and cablecasting organizations.
1. One more meeting of the SCCR before the General Assembly (September/October 2006)

2. The agenda of that meeting will be confined to protection of broadcasters and cablecasters in the traditional sense (broadcast and cable)

3. A revised basic draft basic proposal will be prepared for the meeting and all efforts will be made to make it available to the Member States by August 1 2006. It will be made on the basis of SCCR/14/2 and SCCR/14/3 and now-existing proposals and taking account the discussions of this committee.

4. There will be a recommendation to the GA to convene a DC at a suitable time in 2007.

B. A proposal on protection of webcasting and simulcasting.
1. The deadline for the proposals foreseen at 14th session of SCCR concerning these webcasting and simulcasting, will be Aug. 1 2006.

2. The revised document on protection of webcasting and simulcasting will be prepared on basis of SCCR/14/2, and the proposals, and taking into account discussions of the committee

3. A consultation will be taken on the matter of a meeting of an SCCR to be convened after the General Assembly.

In response to this proposed work program, the United States noted their concern about the "missed opportunity" undertaken to create now under the proposal to separate consideration of webcasting from the broadcasting/cablecasting instrument.

The United States suggested that if the General Assembly did not make a recommendation on convening a Diplomatic Conference, the webcasting could be considered along with traditional broadcasting in following sessions of the Standing Committee on Copyright and Related Rights.

Although it appears that simulcasting and webcasting will not be included in the proposed instrument on broadcasting and cablecasting, we should not rule out their re-appearance in subsequent meetings of the WIPO Standing Committee on Copyright and Related Rights.

[Inputs from: Jason Pielemeier-Yale Information Society Project, Gwen Hinze -Electronic Frontier Foundation, and Rufus Pollock- Open Knowledge Foundation]