The WIPO Broadcasting Treaty: Definitions, Protections, and Controversies, Essays (university) of Intellectual Property (IP)

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COMMENTS FROM MHRD Chair on IPR, NLSIU

on

WORKING DOCUMENT FOR A TREATY ON THE

PROTECTION OF BROADCASTING ORGANISATIONS

BACKGROUND

The first effort to protect the rights of the broadcasters was way back 1961 with the Rome Treaty drafted at the time when cable was a new thing and the Internet was not even invented. This treaty made an attempt to define broadcasting as a means of transmitting sounds and images for the reception by the public. 1 Further it defined rebroadcasting as the simultaneous broadcasting of one broadcasting organization of another.^2 There were provisions for national treatment with respect to broadcasting organizations.^3

However with the technological developments taking place at a fast place a need was felt to update the rights of broadcasting organizations in the changing scenario. This was because of problems like signal theft wherein perfect digital copies of television programmmes can be made and transmitted in a few mouse clicks.^4 In order to combat these problems a need was felt to revise the rights of broadcasting organizations equipping them with means to tackle upcoming problems. In the light of these issues the WIPO General Assembly in 2007 mandated a signal based approach to be adopted for the new treaty on the rights of broadcasting organizations. Since then many efforts have been made to arrive at a consensus at the WIPO Standing Committee on Copyright and Related Rights to come up with a working document for a treaty on the protection of broadcasting organizations. This proposed treaty aims to grant additional rights to the broadcasting organizations. Additionally it excludes computer networks from the purview of broadcastings so as to reduce the cases of signal piracy. Some of the outstanding issues in the treaty include:^5

1 Article 3(f), Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961: “broadcasting” means the transmission by wireless means for public reception of sounds or of images and sounds; 2 Article 3(g), Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961: “rebroadcasting” means the simultaneous broadcasting by one

broadcasting organisation of the broadcast of another broadcasting organization.

3 Article 6, Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961: 1. Each Contracting State shall grant national treatment to broadcasting organisations if either of the following conditions is met: (a) the headquarters of the broadcasting organization is situated in another Contracting State; (b) the broadcast was transmitted from a transmitter situated in another Contracting State. 4 Protection of Broadcasting Organizations – Background Brief , WORLD INTELLECTUAL Property Organization,(January 31, 2015) , http://www.wipo.int/pressroom/en/briefs/broadcasting.html 5 Id.

a. “signal” means an electronically generated carrier consisting of sounds or images, or sound and images, or representations thereof, whether encrypted or not.

This a more comprehensive one which tells in exact terms the contents of a signal thereby making it easy to ascertain with clarity what a signal comprises of and what can be treated as a signal. The Copyright Act, 1957 defines in Section 2(dd) broadcast to mean a communication made to the public in the forms of signs, sounds or visual images^10_._ Considering the domestic legislation having a provision which enumerates about communication made to the public in the form of sounds or visual images, the above definition of signal appears to be more compatible with the Act.

b. “broadcast” means the transmission of a set of electronically generated signals by wireless and carrying a specific program for reception by the general public. Broadcast shall not be understood as including the transmission of such a set of signals over computer networks. The definition of broadcast is a narrow one when it is said that it is only carried through wireless medium failing to take into account the signals transmitted through wires. The words specific programs appear to be centric to a particular program being carried for reception. It should however be noted that a signal may not always carry a specific program but instead be a combination of ancillary programs. The alternative to Section 5(b) fails to adopt a signal based approach by adding the words, “and specific program”. 11

The term broadcast has not been defined independently in the Indian Copyright Act, 1957 but as a broadcasting reproduction right given to the broadcasting organizations.

10 Section 2(dd), The Copyright Act 1957: [("broadcast" means communication to the public- (i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or (ii) by wire, and includes a re-broadcast;]. 11 Pranesh Prakash, Comments to the MRD on WIPO Broadcast Treaty (March 2013), The Centre for Internet and the Society, ( January 30, 2014) , http://cis-india.org/a2k.

The term broadcast can be used as a term denoting either the signal or the act of transmitting the broadcast signals.^12 The right of transmission and communication to the public vests with the author of the work and not the broadcaster’s right. Assuming this broadcast would only cover signals and not the entire transmission. 13 International Conventions including the Rome Convention define the word ‘broadcasting’ and not the word ‘broadcast’ in terms of transmission of work through wireless means.^14 In International context it is the broadcast in the form of signals which needs to be protected. Furthermore the term broadcast is defined by the Copyright Act, 1957 to include transmission by both wire and wireless medium. 15 Thus it can be inferred that the given definition needs to be amended in some respect by inclusion of wire medium as transmission cannot be confined to wireless medium alone. In the Indian context, it is the mode of transmission that needs to be protected as the term broadcast is used as a verb demonstrating the mode of communication. 16

In the second part of the definition transmission over computer networks are expressly put outside the purview of broadcast. There appears to be a gap in the same. We are now living in the Internet age where everyone can upload, view or download information for free. Consider a situation where a serial is being broadcasted on the television at a particular time. The same is made available on the Internet for free on various websites. In this context, one needs to think whose rights are being violated in such a situation. Is it the right of author as a copyright subsisting in the work or the right of the broadcasting organization which is authorized to make the information available to the public?

12 Atharva Sontakke and Himaja Bhatt, Scope of the Rights of Broadcasting Organizations under the Copyright Act, 1957 , RGNUL Student Law Review (Vol. I Issue I), (January 30, 2015), http://www.rslr.in/ uploads/3/2/0/5/32050109/atharva.pdf. 13 Australian Performing Rights Association v_. Telstro Corporation Ltd._ (1994) RPC 299 (FC). 14 Supra note 3. 15 Id. 16 Supra note 3.

legislation as similar provision regarding rights management information has been put in place in India. The provisions regarding rights management information have been recently added in the Copyright Act, 1957 by an amendment made in 2012. It has been defined under Section 2 (xa) of the same.^18

Article 6: Scope of Application

(1) The protection granted under this Treaty extends only to broadcast signals used for transmission by a broadcasting organization, and not to works or other protected subject matter carried by such signals.

As already pointed out, the proposed treaty on the Rights of the Broadcasting Organizations has always favored a signal based approach. The above provision speaks about protecting the signals used for transmission. By keeping its scope of protection limited the provision is a clear one with no ambiguity.

(2) The provisions of this Treaty shall not provide any protection in respect of mere retransmissions by any means.

(3) 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 broadcasts over computer networks to transmission by a 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.

(4) To the extent that a Contracting Party to this Treaty makes use of the reservation permitted under the preceding paragraph, the obligation of other Contracting Parties provided for in Article 8 does not apply.

18 Section 2(xa), Copyright (Amendment) Act 2012: "Rights Management information" means,- ( a) the tide or any other information identifying the performance b) the name of the author or performer; (c)the name and address of the owner of rights; (d) terms and conditions regarding the use of the rights; and (e) any number or code that represents the information referred to in sub-clauses (a) to (d), but does not include any device or procedure intended to identify the user;';

Article 7: Beneficiaries of Protection

(1) Contracting Parties shall accord the protection provided under this Treaty to broadcasting organizations that are nationals of other Contracting Parties.

(2) Nationals of other Contracting Parties shall be understood to be those broadcasting organizations that meet either of the following conditions: (i) the headquarters of the broadcasting organization is situated in another Contracting Party, or (ii) the broadcast signal was transmitted from a transmitter situated in another Contracting Party

Alternative A for paragraph (3)

(3) In the case of a broadcast signal by satellite the transmitter shall be understood to be situated in the Contracting Party from which the uplink to the satellite is sent in an uninterrupted chain of communication leading to the satellite and down towards the earth.

This provision appears to precise and clear as to the location of the transmitter in case of satellite communication as it would be the Contracting Party from which the uplink to the satellite has been sent. This interpretation would be easy to ascertain the place of jurisdiction in cases of conflict regarding signal piracy and signal theft.

Alternative B for paragraphs (3) and (4)

(3) In the case of satellite broadcasts, the relevant place shall be the point at which, under the control and responsibility of the broadcasting organization, the program-carrying signals intended for direct reception by the public are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth.

This provision is complicated when it comes to ascertainment of transmitter’s location for the purposes of jurisdiction as it relies upon the point at which the signals are introduced into the uninterrupted communication chain. Further it says that location of the transmitter shall be determined by the point at which under the control and responsibility of the broadcasting organization, the signals are introduced for communication. The phrase control and responsibility of the may provide leverage to the directors or officers of the broadcasting organizations making them escape liability by showing that during the time the alleged infringing signal was introduced for communication, they were not in charge of the management.

their broadcast signal in places accessible to the public, for commercial advantage or using very large screens; (iii) the use of a pre-broadcast signal intended for them. This provision grants the broadcasting organizations with a set of rights namely:

1. Retransmission
2. Performance of broadcast signal in publicly accessible places for commercial advantage
3. Use of a pre broadcast signal It can thus be seen that though many rights are not covered but still it is of precise nature enumerating the major rights of the broadcasters. Similar provisions are there in the Indian Copyright Act, 1957 under Section 37 of the Act. 20 Without the license of the owner if the following acts are done, it amounts to infringement: 21 a. Rebroadcast of the broadcast or b. Causing the broadcast to be heard or seen by the public on payment of any charges or c. Making any sound recording of visual recording of the broadcast d. Making any reproduction of such sound recording or visual recording where the same was done without any license e. Selling or hiring to the public or offering to do it any sound recording or visual recording.

(2) With respect to the acts under subparagraphs (1)(ii) and (iii), in this article, it shall be a matter for domestic law of the Contracting Party where protection of this right is claimed to

20 Section 37, The Copyright Act 1957: (3) During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the licence of the owner of the right does any of the following acts of the broadcast or any substantial part thereof,- (a) re-broadcasts the broadcast; or (b) causes the broadcast to be heard or seen by the public on payment of any charges; or (c) makes any sound recording or visual recording of the broadcast; or (d) makes any reproduction of such sound recording or visual recording where such initial recording was done without licence or, where it was licensed, for any purpose not envisaged by such licence; or (e) sells or hires to the public or offers for such sale or hire, any such sound recording or visual recording referred to in clause (c) or clause (d) shall, subject to the provisions of section 39, be deemed to have infringed the broadcast reproduction right. 21 Master of Business Laws Study Material

determine the conditions under which it may be exercised, provided that such protection is adequate and effective.