News from the WIPO SCCR: a light at the end of the tunnel?

As readers may know, the WIPO Standing Committee on Copyright and Related Rights (SCCR) is in charge of putting forward recommendations for consideration by the WIPO General Assembly or a Diplomatic Conference. Composed of all member states of WIPO and/or of the Berne Union, as well as (as observers) certain member states of the United Nations which are non-members of WIPO and/or the Berne Union and a number of intergovernmental and non-governmental organizations, the SCCR is currently considering limitations and exceptions and broadcasting organizations.

Katfriend Andrés Ruiz de Zárate reports on the latest SCCR (session 38), which took place in Geneva a few weeks ago.

Here's what Andrés writes:

News from the WIPO SCCR: a light at the end of the tunnel? 

WIPO SCCR - session 38

On 5 April last, session 38 of the WIPO SCCR ended. Consideration was given of the following
topics: 

1. Protection of broadcasting organizations; 
2. Limitations and exceptions for libraries and archives; 
3. Limitations and exceptions for educational and research institutions and for persons with other disabilities; 
4. Other matters, including a proposal for Analysis of Copyright Related to the Digital Environment presented by GRULAC (the regional group conformed by the countries of Latin America and the Caribbean), a proposal from Senegal and Congo to include the Resale Right (droit de suite) in the Agenda of Future work of the SCCR, and a proposal presented by the Russian Federation With Regard to Strengthening the Protection of Theater Directors' Rights at the International Level. 

Of these matters, the oldest is the one that corresponds to the protection of broadcasting organizations, which has been in discussion for 21 years and is the oldest subject of the normative agenda of WIPO, as indicated by the General Director Francis Gurry in his opening remarks. 

Over the past few years, the radio and television market has changed drastically, both because of the new technologies that allow digitization and because of the appearance of new modes of consumption. Signal piracy is a serious problem, which logically affects mainly the broadcasting organizations but also the holders of content, since radio broadcasters are an essential element of the value chain of the creative industries. 

In particular, two have been the problems which have represented an obstacle to the negotiation: the non-linear transmission of the signal, since it presupposes a delay in time and conflicts with the ephemeral nature of the signal, and protection by other mechanisms other than related lawrights (neighboring rights or droits voisins in French). 

The negotiation in WIPO has been sustained in recent years in accordance with a "signal-based approach", by which first of all the program carrier signal is distinguished from those programs contained therein. It is an approach in which "The protection granted under this Treaty extends only to programme-carrying signals as broadcast including pre-broadcast signals transmitted by, on behalf of, to broadcasting organization, but not to programs contained therein" (Document SCCR38 / xx II (1), Object of Protection) 

On the other hand, the signal-based approach avoids the vexed issue of the fixation or use of the signal after the broadcast, due to the difficulties that some countries have in granting rights that in some legal systems would be the same as those that have the holders of the contents that they have licensed to the broadcasters and the latter have transmitted. In some jurisdictions, such as the USA, Japan or Korea, when the transmission is fixed, the owner still has a copyright in the content and not a related right. Some might think that double protection over content would be generated in those countries. In the jargon of the negotiators, that would imply to give to the broadcasters “post fixation rights”, a very redoubtable concept. 

This is not the case in the vast majority of countries and especially in the European Union, where the distinction between the signal protected by a related right and the contents, which may or may not be protected by copyright, is clear, to the extent that they comply with the requirements for being a work. Thus, sports events or reality shows do not usually enjoy copyright protection, nor do they have it through related rights. 

Ephemeral Kat

This approach has led the SCCR to abandon the traditional catalogue of rights, such as those considered in the WIPO Internet Treaties (WCT and WPPT) and in the Beijing Treaty. In the current state of negotiations there are no longer rights of reproduction, distribution, communication to the public or making available, but "Broadcasting organizations shall have the exclusive right of authorizing the retransmission of their programme-carrying signal to the public by any means" (SCCR 38 / xx, III (1), Rights to be granted) . 

Now, what about the legitimate uses that the same broadcaster makes of its signal and that do not fit within the limitation of the ephemeral signal? Due to the facilities presented by the internet, IPTV and mobile transmission, and with the possibility of content being digitized and compressed, Pay-per-view, video on demand, Web TV and catch up are lawful uses of the signal by the broadcaster or by a third party in its name. 

Especially on demand video systems, among which are catch-up services, allow user interactivity. However, if these broadcasts of the broadcaster were not covered by the protection of the legal framework, they could be taken by third parties without authorization to make illicit retransmissions based on them. Gaps in protection can be used by those who have not invested in infrastructure and in the assembly of the signal and who have neither produced the contents nor paid the licenses for the use of these. The most obvious case of this loophole would be to deny protection of the catch up services since this is nothing else than exactly the linear signal of the broadcaster, in unaltered form, which has been protected since the Rome Convention. 

The big problem in need of a solution, and that apparently has been found during the last SCCR session, is to distinguish between the uses made by the broadcaster of the original signal, and those uses that are not linked to the original broadcast, due to its modification or fixation or expiration of time. The new expression introduced was the "stored version of the signal", which is the signal broadcasted in real time, directed to the public, but through a hosting or recording, available for the user to enjoy it at another time and place. It is the same original signal, without alterations, that remains latent at the disposal of the public at which it was targeted. 

The retransmission of that “stored version of the signal” by a third party without authorization is an infringement. If it is used by the public at which it was directed, whether by catch up or subscription systems, it is a product under the sphere of the broadcaster's activity, although the action falls on the user decision, without a new activity by the broadcaster. Normally, the hosting of the latent signal is for a period of hours, days or weeks. 

Regarding the second issue that is close to being solved, this is the possibility that countries implement the exclusive right of the broadcaster through other means than the related rights system, provided it means adequate and effective protection. This difficulty is mainly raised by one delegation, since its telecommunications law system provides very complex protection mechanisms, and they would not be able to modify their domestic legislation if they ratified the treaty. What they ask for is the possibility that the exclusive right may be implemented through a related right, a copyright, or a combination of rights, including criminal law or unfair competition. 

The proposal implies that at the time of ratifying the treaty, the country would send a declaration to the Director General of WIPO on how the party would comply with that adequate and effective protection through a right of the broadcaster that is exclusive and independent. Not in the sense of the traditional reservations, but as a declaration of which will be the way that best suits the needs of its legislation, provided that the level of protection is satisfactory. The parties want to ensure a minimum level of protection leaving them the possibility of choosing the best way to achieve such protection.