WIPO Broadcasting Treaty document proposes webcasting alternative

The World Intellectual Property Organization (WIPO)'s new working document for a Broadcasting Treaty includes a reference to online signals, a sticking point at committee discussions in Geneva this summer. The working document sets out alternatives for the definition of a broadcaster's signal, and depending on what direction the committee members take, a new treaty could cover webcasting. "This document still envisions a possible protection to some extent, and the extent to which a webcaster would be protected is governed by whether it meets the definition of a broadcasting organization," Erica Redler, an independent broadcast consultant who represents the North American Broadcasters Association (NABA) on WIPO issues, said in a phone interview. "Even if webcasting could be covered, there is a possible limited opt-out provision.” The 13-page working document, released publicly Sept. 21, is the result of WIPO copyright committee meetings and plenary sessions in July in Geneva, Switzerland. Redler, who attended the committee meetings this summer, said webcasting will be the “crux of the issue” as delegations consider the working document in advance of the next round of meetings scheduled for Nov. 19-23. The United States has been pushing for treaty protections of online streams of broadcasting signals as pirate sites based in foreign jurisdictions offer free, copyrighted content. Other countries, such as India and Japan, as well as Internet freedom civil society groups, have staked out positions against new protections that could impact Internet transmissions or trigger a layering of rights. During plenary sessions this summer, U.S. delegate Shira Perlmutter said a treaty that does not address Internet activities would not be worth it. Perlmutter said at the time the treaty should be “technologically neutral” and address online piracy. Mashilo Boloka, who spoke for the South Africa delegation, told the WIPO committee that a treaty limited to traditional broadcasting is “ignoring the problem.” The working document, in one alternative, proposes defining “signal” to include “an electronically generated carrier consisting of sounds or images.” In another alternative, it defines “broadcasting” and “cablecasting” as not including “transmissions over computer networks.” “It’s a compilation of proposals, but the document is still maintaining alternatives that would allow for some protection of simulcasting and webcasting,” Redler said. Redler noted the working document includes a limited opt-out provision and reference to some webcasting protections for up to three years. The document says that “any Contracting Party may deposit with the Director General of WIPO a declaration that it will limit the protection provided under this Treaty in respect of broadcast over computer network to the transmission by the broadcasting organization of its own broadcasts transmitted by other means, provided that such reservation shall only have effect for a period not exceeding three years from the date of entry into force of this Treaty.” The drafting of a WIPO broadcast treaty with a new signal right took place during two special sessions in Geneva in January and June 2007, where member states met to finalize a proposed treaty under a “signal-based approach.” That effort failed due to a lack of consensus on what rights broadcasters should be given. Jay Kerr-Wilson, a copyright lawyer with Fasken Martineau DuMoulin in Ottawa, in a phone interview noted that Article 6 of the document proposes that a country limit protection under the treaty to broadcasts on computer networks and to broadcasters' transmissions of their own signals. “If this provision is also included, it would mean that Canada can say, ‘We’re only going to protect webcasts that are made by a broadcaster of its own signal,’” he said. “This is an option for people who want to protect broadcasters’ online activities but don’t want to throw the door open to any webcast.” A WIPO official who was not authorized to speak publicly said by phone that the working document reflects the different approaches of member states, particularly those of Japan, South Africa and Mexico, as well as comments from India, Senegal, Brazil, Iran, Switzerland and Monaco. “I’m not sure they’re contradicting, they’re just different,” the official said. The WIPO official said one aspect of the document is the treaty’s scope of protection, and that member states will have to decide whether the proposed treaty is limited to the protection of traditional broadcasting or whether it will also protect the unauthorized use of signals on any platform, including the Internet. “This is where we are at this stage,” the official said. “It’s still open to discussions and members have to decide on this issue.” The official said it’s too early to predict which direction the discussions will go, but added: “It’s clear that broadcasting organizations require protection of their broadcast signals regardless of the technological platform used to transmit the signal.” Canada did not take the floor at the meetings in Geneva this summer, though the country's position is reflected in a footnote in the document, in which it maintained its position for an opt-out provision. Canada recommended that “Contracting Parties which did not give broadcasters a right to authorize simultaneous retransmission of unencrypted wireless transmissions immediately prior to joining the treaty be allowed to opt out of the simultaneous retransmission right with respect to unencrypted broadcasts,” the footnote says. Kerr-Wilson said the working document narrows down options for countries, though a lot of work lies ahead for countries to eliminate areas of disagreement. One broadcasting insider with knowledge of the situation said the Canadian government has expressed “very little” interest in the WIPO Broadcasting Treaty. If the treaty starts to progress internationally, the person said, Canada will have to be more engaged. Pierre Manoni, a spokesman for the Heritage Department, said in an emailed statement to The Wire Report that Canada will continue to work internationally to find solutions reflecting Canadian interests. “The issue of internet-related activities in the context of the broadcasting treaty working document is a matter of ongoing consideration at WIPO,” Manoni said. “These questions have yet to be agreed upon, and will be the subject of future discussions at the committee.” Manoni said Canadian officials are expected to attend the November meetings of the WIPO Standing Committee on Copyright and Related Rights (SCCR). dgrenier@thewirereport.ca

WIPO Broadcasting Treaty document proposes webcasting alternative

News | October 2, 2012

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