Broadcast Treaty Said Unlikely to Cover Webcasting Services
Conclusions on talks on an updated treaty to protect broadcasting signals won’t be firmed up until Friday or later, though discussions this week at the World Intellectual Property Organization Standing Committee on Copyright and Related Rights (SCCR) have led to a decision that pure webcasting signals won’t be part of the treaty’s scope, broadcast officials said in an interview Wednesday. That, and the move toward creating a single, broad right protecting simultaneous and near simultaneous transmissions, could relieve some concerns of nongovernmental organizations and pave the way for a diplomatic conference, they said. Knowledge Ecology International (KEI) and the Computer & Communications Industry Association (CCIA), however, said they still believe those seeking the broadcasting treaty haven’t proved they need it.
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The SCCR, which meets through July 4, is considering the same working document as at the last meeting, in May (http://bit.ly/1jKKmA6)(CD May 5 p6). No formal conclusions were reached at the end of that meeting because some delegations have sought to link the broadcasting treaty issues with another agenda item, on limitations and exceptions for libraries and archives, said a broadcast official. That led to a stalemate, and this time, the committee will spend 2 1/2 days debating the broadcasting treaty and the remaining time on limitations and exceptions, with conclusions drawn up at the end, said another broadcast official.
The issue of whether pure webcasting should be covered by the treaty appears resolved, said a broadcast official. There was informal consensus that webcasting should be removed from the document, which makes the treaty less controversial to opponents, she said. Webcasting in this context means programming that has never been transmitted over-the-air, the second official said. The apparent decision is huge because it narrows the proposal’s scope and allows talks to focus on what the subject of a diplomatic conference should be, he said. The removal of pure webcasting amounts to a concession by broadcasters, said another broadcasting official.
Another development could resolve the tension between the U.S. desire to take a single-right approach and that of some other countries that favored a long list of rights, said a broadcasting official. There’s a move toward one broader right that includes simultaneous and near-simultaneous transmission, she said. Talks are also moving toward possible protections for past near-simultaneous and other deferred transmissions, said a broadcasting official. The question is how much further past the original broadcast transmission should the treaty go, he said.
"I don’t know if it is movement as much as some sense of clarity on certain elements,” said CCIA Geneva Representative Nick Ashton-Hart. “Simultaneous and near-simultaneous have been combined into one sentence -- but nobody knows what ‘near-simultaneous’ means.” In a statement to the SCCR Wednesday, CCIA said this week’s discussions “have illustrated the importance of looking closer at a few fundamental issues to facilitate progress.” The first is that fixed signals “are a fiction” because “there is only the programme, already protected by copyright proper,” said the group, with members including Aereo, Dish Network, eBay and Google. That includes simultaneous or near-simultaneous transmission, as well as making available or on-demand applications, Ashton-Hart told delegates.
There’s no need to “torture the copyright system” by creating rights for signals just to prevent their piracy, because the existing model in the Brussels Satellite Convention works, CCIA said. Treaty proponents have yet to explain why the convention doesn’t give them enough ammunition to protect their interests, it said. Another issue is that the SCCR must assess the real-world impacts of its treaties, CCIA said. The organization urged WIPO members to update key studies and ensure equal treatment between right and non-rights-based signal protection regimes.
KEI agreed treaty proponents haven’t met the burden of proof. Some broadcasters “are still asking for a new layer of post fixation rights in content they did not create, license or own,” said KEI Geneva Representative Thiru Balasubramaniam in a blog post (http://keionline.org/node/2036). If the committee wants to move forward on the treaty, it should concentrate on a narrow document based on a single right corresponding to the core need of broadcasting organizations for protection from signal piracy, he wrote. There could be a single right to authorize the simultaneous or near-simultaneous transmission of signal to the public, and the SCCR should steer clear of transmissions over the Internet, “an issue which is clearly not ready for prime time,” he said.
KEI also opposes extending broadcaster rights to cable TV and other subscriber services, which are protected under other laws such as theft of service, Balasubramaniam wrote. “The focus of the treaty should be on over the air broadcasts which are to the public.” The SCCR meeting ends Friday. It’s not clear whether conclusions will be available then.