WIPO treaty on the protection of broadcasting organisations European Commission hearing Monday 12th February 2007 Tom Rivers External legal adviser to the Association of Commercial television in Europe (ACT) European Commission hearing Monday 12th February 2007 Tom Rivers External legal adviser to the Association of Commercial television in Europe (ACT)

Topic 1 Objectives of the Treaty Objectives of the Treaty 1.What Treaty elements would provide effective protection against signal theft? 2.How can broadcasting organisations best be protected against the unauthorised exploitation of their signal? 3.What protection do broadcasting organisations need on an international plane against “freeriding”? 4.Should the cultural dimension of broadcasting also play a role in defining the Treaty’s objectives? 1.What Treaty elements would provide effective protection against signal theft? 2.How can broadcasting organisations best be protected against the unauthorised exploitation of their signal? 3.What protection do broadcasting organisations need on an international plane against “freeriding”? 4.Should the cultural dimension of broadcasting also play a role in defining the Treaty’s objectives?

Topic 1 Objectives of the Treaty 1. What Treaty elements would provide effective protection against signal theft? At WIPO symposia in 1997 and in 1998 broadcasters proposed a list of exclusive rights. These included:  Rebroadcasting  Cable distribution  Making available fixations by wire or wireless so that members of the public may access them from a place and at a time individually chosen (on demand)  Communication to the public (public performance)  Fixation (other than for private purposes) and any reproduction or distribution of such a fixation  Decoding of encrypted broadcasts At WIPO symposia in 1997 and in 1998 broadcasters proposed a list of exclusive rights. These included:  Rebroadcasting  Cable distribution  Making available fixations by wire or wireless so that members of the public may access them from a place and at a time individually chosen (on demand)  Communication to the public (public performance)  Fixation (other than for private purposes) and any reproduction or distribution of such a fixation  Decoding of encrypted broadcasts

Topic 1 Objectives of the Treaty Q1. (cont’d) The broadcasters’ proposal in its final form also included:  limitations and exceptions  obligations concerning technological measures and rights management information based on the WPPT.  protection for the pre-broadcast signal  protection for broadcasts transmitted by the originating broadcaster over the internet (“simulcasting”). The broadcasters’ proposal in its final form also included:  limitations and exceptions  obligations concerning technological measures and rights management information based on the WPPT.  protection for the pre-broadcast signal  protection for broadcasts transmitted by the originating broadcaster over the internet (“simulcasting”).

Topic 1 Objectives of the Treaty Q1. (cont’d) These elements - identified by the broadcasters in their proposals - recur in most of the (14) proposals made by governments, and their proposals are built on the rights- based approach and the other elements found in Rome and WPPT. Of the 86 countries that belong to Rome, 32 have made proposals to update the protection of broadcasters by “filling the gaps” in Rome. A further six countries - Cameroon, Tanzania, Kenya, Egypt, Singapore and the US - that do not belong to Rome propose updated rights-based protection. No government has made a proposal based on a non rights based model - for example the Brussels Satellites Convention These elements - identified by the broadcasters in their proposals - recur in most of the (14) proposals made by governments, and their proposals are built on the rights- based approach and the other elements found in Rome and WPPT. Of the 86 countries that belong to Rome, 32 have made proposals to update the protection of broadcasters by “filling the gaps” in Rome. A further six countries - Cameroon, Tanzania, Kenya, Egypt, Singapore and the US - that do not belong to Rome propose updated rights-based protection. No government has made a proposal based on a non rights based model - for example the Brussels Satellites Convention

Topic 1 Objectives of the Treaty 2. How can broadcasting organisations best be protected against the unauthorised exploitation of their signals?  As already implied the rights-based approach is congruent with protection provided for other owners of related rights and for Berne authors.  This makes it easier to ensure that the important elements of balance - both with other stakeholders which own and exercise rights and with the public at large - can be maintained.  It is also likely to speed the uptake of the treaty.  On the other hand WIPO’s requirement to seek consensus has slowed things down in recent years. A number of governments question whether multilateral treatymaking in the field of intellectual property delivers added value for developing and LDC countries and are keen to promote a quite different agenda.  As already implied the rights-based approach is congruent with protection provided for other owners of related rights and for Berne authors.  This makes it easier to ensure that the important elements of balance - both with other stakeholders which own and exercise rights and with the public at large - can be maintained.  It is also likely to speed the uptake of the treaty.  On the other hand WIPO’s requirement to seek consensus has slowed things down in recent years. A number of governments question whether multilateral treatymaking in the field of intellectual property delivers added value for developing and LDC countries and are keen to promote a quite different agenda.

Topic 1 Objectives of the Treaty Q2. (contd)  In the tension between coherence and consensus there is a real risk that what is acceptable to all is an instrument unfit for purpose.

Topic 1 Objectives of the Treaty 3. What protection do broadcasting organisations need at an international plane against “freeriding”?  As the European Community noted in its first submission (SCCR/2/5) technological developments added “an important transnational element” that had made broadcasting organisations “major players in the distribution and exploitation of works at a global level”. At the same time there was a “parallel increase” of unauthorised acts against programme-carrying signals.  Broadcasters need international protection because of the borderless character of the digital environment. A broadcast “ripped” by a subscriber to YOUTUBE is available to a worldwide audience.  A treaty which failed to protect against unauthorised retransmission over the internet (whether of a broadcast or a simulcast) would be hopelessly deficient.  As the European Community noted in its first submission (SCCR/2/5) technological developments added “an important transnational element” that had made broadcasting organisations “major players in the distribution and exploitation of works at a global level”. At the same time there was a “parallel increase” of unauthorised acts against programme-carrying signals.  Broadcasters need international protection because of the borderless character of the digital environment. A broadcast “ripped” by a subscriber to YOUTUBE is available to a worldwide audience.  A treaty which failed to protect against unauthorised retransmission over the internet (whether of a broadcast or a simulcast) would be hopelessly deficient.

Topic 1 Objectives of the Treaty Q3. (contd)  Of equal importance is a right for broadcasters which deliver encrypted programmes to subscribers to be able to act against hackers who profit from a trade in counterfeit smart cards and other unauthorised decryption methods.

Topic 1 Objectives of the Treaty 4. Should the cultural dimension of broadcasting also play a role in defining the treaty’s objectives?  NO  This instrument is about protection of the signal NOT the content.  The Sudanese delegate argued that the third world was being swamped by programming from the first world which carried alien values. Countries had the right, he said, to protect their cultural diversity.  This is undeniably a contentious issue but it cannot be the right approach to introduce a “cultural litmus test”, applied by countries of reception, to exclude signals.  NO  This instrument is about protection of the signal NOT the content.  The Sudanese delegate argued that the third world was being swamped by programming from the first world which carried alien values. Countries had the right, he said, to protect their cultural diversity.  This is undeniably a contentious issue but it cannot be the right approach to introduce a “cultural litmus test”, applied by countries of reception, to exclude signals.