What is wrong with Article 14?

by Manon Ress

What is wrong with proposed broadcasting/cablecasting/webcasting treaty Article 14 Limitations and Exceptions?

According to Professor Okediji, in most international instruments, limitations and exceptions are addressed first in a preamble form where the balance between private and public rights are stated (WPPT, TRIPS). Then, one finds a general clause (TRIPS Art 13 & 30, WPPT Art 16(2) and WCT Art 10 (1)), then some specific limitations and exceptions for particular use (Rome Art 15 (1), Berne Art 10bus)...and a clause that addresses compulsory licenses (TRIPS art 31, Rome 15 (2). Finally, you may have a permissive clause that allow a state to define circumstances for certain uses (Rome Art 13 (d)).

The provision on limitations and exceptions in the draft treaty as it stands is, as noted by many observers including UNESCO's paper by Dr. Akester very narrow. It mostly establishes a conventional general clause that corresponds to the three step test. That's it. Talk about limited limitations!

Would US laws like 17 U.S.C. 114 (b) Scope of exclusive rights in sound recording or 118 noncommercial educational broadcasting compulsory license have to change? And what about 119 Limitations on exclusive rights: Secondary transmissions of superstations and network stations for private home viewing?

How will the elimination of the "grandfathering clause" (Alternative T of L&E until last draft) affect how contracting parties have had some limitations and exceptions concerning retransmissions?

What US laws will have to change and how?

Does anyone know?

What happened to the "PBS clause"? Maybe they should know that they've been dumped?

by Manon Ress

Looking at the "evolution" of the limitations and exceptions in the draft treaty, you'll see the PBS clause is gone. I was told by the US delegation it was important and that it was the way to make the provisions work with US laws etc....I sure hope it's back in the new "draft" due August 1? Does anyone know?

Check it out:
Paragraph (3), in Alternative T, was called the PBS clause. It was a proposal by (Egypt and) the United States of America to provide a “grandfathering clause” that would allow Contracting Parties to maintain certain limitations and exceptions concerning retransmissions. Same language since June 2004, at SCCR 11 and then SCCR 12 and 13. It looked like a pretty good idea:

Article 14 Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting organizations as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works, and the protection of related rights.

(2) Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of the broadcasting organization.

Alternative T
(3) If on [the date of the Diplomatic Conference], a Contracting Party has in force limitations and exceptions to the rights conferred in Article 6 in respect of non commercial broadcasting organizations, it may maintain such limitations and exceptions.

Alternative U
(3) [No such provision]

However, in May 2006 at SCCR 14, the "PBS clause" has been deleted (not enough support according to chairman's text). Article 12 now follows the L&E in the WPPT 16(1) and Rome 15.2 in first paragraph. The second paragraph is the 3 step test. Period. Check the text and let me know if that would accomodate US law as it is regarding noncommercial broadcasting:

Article 12 Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting organizations as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works, and the protection of related rights.

(2) Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of the broadcasting organization.

UNESCO Paper on Draft treaty

by Manon Ress

According to a paper commissioned by UNESCO, the draft Treaty would expand the level of protection granted to broadcasting organizations and the beneficiaries of such protection (adding cablecasters and possibly webcasters), may prevent access to materials in the public domain, obligations for TPMs may endanger copyright policies underpinning restrictions, and the term of protection (50 years!) would not be consistent the rationale of recovering investment.

e-Copyright Bulletin
April – June 2006
The Draft WIPO Broadcasting Treaty and its impact on Freedom of Expression

Commissioned by UNESCO and prepared by Patricia Akester

[...]

This study was subject to a peer-review carried out by Professor J. Ginsburg, Professor T. Dreier and Dr. U. Suthersanen.

[...]

Conclusions and Recommendations

The draft Treaty (1) would expand, in the international arena, the level of protection granted to broadcasting organizations and the beneficiaries of such protection (adding cablecasters and possibly webcasters), (2) the proposed legal framework may prevent access to materials in the public domain, (3) obligations as regards technological measures may endanger copyright policies underpinning restrictions, and (4) the term of protection would not be in accordance with the underlying rationale of recovering investment.

Digital technology brought with it amazing techniques for copying and dissemination of information, consequently affecting copyright’s delicate inner balance. In this environment, technological measures for protection of copyright have been fostered, and in the international arena the trend seems to be towards the adoption of compulsory legal protection of these measures and establishment of broad rights, whilst devising non-mandatory exceptions.

In line with this move, the Draft Broadcasting Treaty would give broadcasters and cablecasters (and possibly webcasters) broad rights which in parallel with technological measures and ambiguity as to protected subject-matter could prevent or restrict the flow of information with respect to materials which may not be protected by copyright, such as news of the day, or which are in the public domain, because their term of protection has expired or in relation to materials created by third parties who do not wish to prevent dissemination of the latter.

Thus, the Draft Treaty may undermine the balance between the economic interests of broadcasting and cablecasting organizations and freedom of expression values.

On the premise that the significance of protection should be emphasized without failing to remember the democratic benefits ensuing from the subsistence of a suitable set of restrictions to such protection, the following recommendations are made:

Recommendation 1 – Scope of protection

The uncertainty as to the scope of application of the Draft Treaty, as described above, may enable broadcasting and cablecasting organizations to control both signal and content. This would conflict with the right to freedom of expression, as it could, for example, prevent use of a work in the public domain once it has been broadcast.

To overcome this uncertainty it is recommended that a definition of broadcast is presented that expressly circumscribes the ambit of protection granted by the Draft Treaty, assuring that it covers the broadcast signals but not the broadcast work, thus allowing use of the latter from another provenance.


Recommendation 2 – Exceptions and limitations

As it stands this Treaty may undermine certain exceptions enshrined in the copyright laws of many countries.

It is recommended that the Draft Treaty sets out a list of exceptions and limitations that are not in discrepancy with copyright law nor with signal protection. Restrictions for certain purposes could be established in line with the ones currently recognized under Article 15 of the Rome Convention: private use, reporting of current events, ephemeral recordings and use for teaching and scientific research.

The Draft Treaty should delineate the contours of exceptions and limitations, leaving to domestic legislators the task of setting out more clear-cut provisions.

These exceptions and limitations would serve the public policy objective to disseminate information - an exponent of freedom of expression. Exceptions and limitations that exist in order to protect free flow of cultural, academic and educational information should be preserved as much as possible in a broadcast environment.

Secondly, Contracting Parties should also be given the chance to provide for further exceptions and limitations in accordance to the three-step test. But because the three- step test could override the national systems of restrictions, an agreed statement should be introduced expressly safeguarding national exceptions and limitations that are deemed compatible with the Treaty, including restrictions regarding the work broadcast - thus assuring, to an extent, the ability for Contracting Parties to shape their national laws according to their needs, individual traditions and cultures.

Thirdly, another agreed statement should make clear that the protection granted to broadcasting and cablecasting organizations does not cover the situation where national laws relating to the protection of the work broadcast would permit the work to be used.

Therefore, the list should be open-ended, encapsulating the core cases of exceptions and limitations on the basis of the imperatives of freedom of expression, seen as the dominant rationalization of restrictions per se.

This methodology would help maintain the balance between exclusive rights and restrictions, supporting strong rights and preserving breathing space for freedom of expression and enlightenment values.

Recommendation 3 – Term of protection

It is recommended that the Draft Treaty (1) takes an investment-orientated approach, by extrapolating the equivalent Rome provision, therefore arguably enabling broadcasting or cablecasting organizations to recover its investment effort, or (2), as a minimum solution expressly prevents perpetual renewals of terms of protection.

Recommendation 4 – Obligations concerning the protection of technological measures

Where legal boundaries addressing works and broadcasts become distorted, underlying policies which dictate, for instance, that certain materials which are broadcast are not protected by copyright because they have entered the public domain or because they do not comply with originality requirements, may be put at risk.

The Draft Broadcasting Treaty would enable broadcasting and cablecasting organizations to control materials that are in the public domain by transmitting them. In contrast, copyright protection is not granted to authors unless there is a certain degree of originality involved in the process of creation.

If copyright imperatives are not to be supplanted by the Draft WIPO Broadcasting Treaty, it is recommended that the creation of legal obligations concerning technological measures for protection of broadcasts be accompanied by an agreed statement according to which (1) such obligations will not cover the situation where national laws relating to the protection of the work broadcast or the broadcast itself would permit the work to be used (2) circumvention of a technological measure for protection of a broadcast will be allowed where it is required to enable a non-infringing use -of a work or a broadcast- and the means to carry out such use have not been made available by the respective rightholders.

The recommended approach would avoid the need for users to resort to burdensome and potentially ineffective processes in order to be able to benefit from restrictions where rightholders have not made available to the beneficiaries the means of benefiting from such restrictions.

Lastly, legal obligations concerning technological measures for protection of broadcasts should only cover the act of circumvention. If legal protection is extended to facilitation of such acts, it should be restricted to devices the sole or main purpose of which is to circumvent such measures.

According to the preamble of the Draft Treaty:

“Recognizing the need to maintain a balance between the rights of broadcasting organizations and the larger public interest, particularly education, research and access to information, “Recognizing the objective to establish an international system of protection of broadcasting organizations without compromising the rights of holders of copyright and related rights in works and other protected subject matter carried by broadcasts, as well as the need for broadcasting organizations to acknowledge these rights.”

But this elementary theoretical consideration has to be reflected in the provisions of the Draft Treaty and then applied in praxis.

WIPO sets Sept 11-13 for next SCCR meeting

by James Packard Love

According to this: http://www.wipo.int/copyright/en/ , the 15th Session of the Standing Committee on Copyright and Related Rights (SCCR/15) will be held in Geneva, September 11 to 13.

Definition of webcasting

by James Packard Love

The U.S. delegation is required to submit more information about the scope of international protection for "webcasting" to WIPO by August 1, and is asking for suggestions for definitional language by email by July 15.

I was asked by someone to provide an example or conceptual model of a “restrictive” definition.

We had earlier pointed out the current definitions of webcasting organizations and activites are extremely broad, including for example, the type of activities discribed in this web page:

Look, I'm a Webcaster

The February 8, 2006 definition (SCCR_14_2) of webcasting and webcasting organizations looked like this:

(a) “webcasting” means the transmission by wire or wireless means over a computer network for the reception by the public, of sounds or of images or of images and sounds or of the representations thereof, by means of a program-carrying signal which is accessible for members of the public at substantially the same time. Such transmissions, when encrypted, shall be considered as “webcasting” where the means for decrypting are provided to the public by the webcasting organization or with its consent.

(b) “webcasting organization” means the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representations thereof, and the assembly and scheduling of the content of the transmission.

I'm not sure the best strategy for narrowing the definition, and this is highly risky without some understanding of the rights one might associate with the defintiions . But assuming I hated the rights, I would consider things like this:

1. Limit webcasting to only scheduled streaming of audio and video feeds, and specificially exclude text, images and data that could be viewed separately from the video feed.
2. Exclude from protection any streaming of audio and video feeds of public domain materials, or for which the webcaster does not have evidence establishing the copyright owner wishes to restrict access.
3. Exclude from the protection any streaming of meetings or events the primary purpose or effect of which is to promote transparency of government or non-government entitites.
   
4. Put conditions on scheduling, to include evidence that (a) the scheduling is independently promoted, (b) that a signficant amount of the traffic is from the scheduled stream, (c) that the material would not otherwise be available from the site except for the scheduled streaming, and (d) the material is commerically valuable, costly to stream, and would not and or is not available to the public from other sources, without measures to commerically exploit the works.
5. The method of obtaining access to the streamed work is itself restrictive, in the sense that it requires remunerative subscriptions,
   
6. The technologies used to stream the works do not undermine any of the public's rights under copyright, such as fair use or other non-remunerative uses permited under copyright.

This is just for discussion... and I'll solicit suggestions about modifications or additions that would provide greater protections to copyright owners and the public, and reserve the right to completely change my mind once the errors of these proposals have been pointed out.

Blog on WIPO Casting Treaty

by James Packard Love

This is a blog to discuss the proposed WIPO casting treaty.

By August 1, WIPO member countries are asked to submit comments on the two tracks for the treaty (old and new technologies), which SCCR Chair (for life?) Jukka Liedes and the WIPO Secretariat will then use to create a new Chair's draft for the "traditional" broadcasting issues, to be considered at the next SCCR meeting, that begins (I hear) the week of September 11. People in Geneva claim the EU is devoted to bring webcasting back into the "traditional" technologies track, under the catagory of simulcasting -- full casting rights to broadcasters (only) for webcasting.

The USG is asking people for definitions of webcasting. People are asking the USG questions on the context. What are the "rights" that would be associated with a definition?

Some people in US industry circles are truly unrealistic, in my opinion, regarding the difficulty of getting the EU to accept any new treaty that has anything that reduces the rights already set out in the ROME Treaty.