This is a rebuttal blog post to the paper ‘The Proposed Treaty for the Protection of Broadcasting Organizations : Old Wine in a New Bottle?‘ whose central thesis is that no justification for the Broadcast Treaty (the Treaty) had been fully established. Throughout he paper, the authors play the platitudinous trumpet of the Treaty’s deviation from a ‘signals based approach’ to a ‘ rights based approach’ leading to the creation of a ‘para – copyright regime’. This according to them had potential chilling effects on legitimate end uses of copyrightable material. However, they fail to substantiate their claims with sound legal reasoning.
In a three part series, I will summarize the arguments of the paper section wise with my rebuttals :
(I) Preliminary : Need for the Broadcast Treaty
The authors while making a reference to the draft non – paper on the WIPO Treaty on the Protection of Broadcasting Organizations state that there was no proof that the Treaty filled any gaps in the existing international laws on the issue. Further, they contend that a better implementation of the existing international instruments was sufficient for curbing signal piracy.
However, the existing international conventions do not take into account the recent technological advancements in the broadcasting sector. I’ve extensively written about the lacuna in the existing regime here, here and here. In this event, I fail to comprehend how will better implementation of the Rome Convention or the Brussels Conventions enable in combating signal piracy. Given that India is not a party to either of these conventions, there is zilch protection for Indian broadcasters against piracy of their signals taking place outside India. Thus, making the Treaty all the more important for India.
(II) Shift to a Rights Based Approach
The authors undertake a clause by clause comparison of the Treaty with other international treaties. They start with the definitions clause and then move towards the rights section of the Treaty. They argue that the draft text deviates from a ‘signals based approach’ to a ‘rights based approach’. This is where I’ve serious objections to their arguments; for at many places comparison with unrelated international conventions has been made while at others the arguments are conceptually flawed.
A. Broadening of Definitions in the Broadcast Treaty
(a) Definition of signal :
On page number 72, the authors state, “In the case of a “signal”, the Broadcast Treaty speaks of an ‘electronically generated carrier consisting of sounds and images or sounds and images or representations thereof whether encrypted or not, which could potentially include content that the signal carries as well.”
Firstly, this definition is one of the alternatives as per the draft text of the Treaty. As per the second alternative, signal means an ‘electronically generated carrier capable of transmitting a broadcast or cablecast.’ This definition has absolutely no reference to ‘sounds and images’, thus precluding any scope whatsoever for the inclusion of underlying content of the signal. Secondly and most importantly, these definitions are redundant considering that the revised consolidated text on definitions, object of protection and rights to be granted explicitly differentiates between the content (defined as ‘programme’) and the signal (defined as the ‘programme carrying signal’).
The scope of the Treaty (titled as the Object of Protection in the revised consolidated text) extends only to the ‘programme – carrying signals’ and not to the ‘programmes’. This makes it crystal clear that the content is NOT the subject matter of the Treaty. However, since this a recent development, it would have been unknown to the authors at the time of writing the paper.
(b) Definition of broadcasting organizations :
On page number 72 and 73, the authors elucidate the definition of broadcasting organizations. They conclude their explanation of the second alternative by stating, “this definition is also by far the most technologically neutral and ensures adequate protection for broadcasting organizations on all broadcasting platforms which is potentially problematic and overreaching.
However, they fail to substantiate why was this ‘problematic and overreaching’. Without a technologically neutral definition, what recourse is available to traditional broadcasting organizations who stream their channels onto the internet in the event their online streams are pirated offshore? For the sake of information, not only do broadcasters in the developed countries stream their channels online (either in real -time or otherwise). Even Asian developing countries broadcasters use internet for broadcasting their linear channel streams. Examples of such broadcasting organizations, can be found here.
In this event, a non – technologically neutral definition is an anathema for safeguarding the signals of broadcasters against online piracy. This is not to say that the Treaty should not make adequate provisions for keeping mere webcasters out of its purview. Infact, this has already been taken into account in the revised consolidated text (See clause (d) of the definitions section).
(c) Definition of retransmission :
On page 73 of the paper, the authors while comparing the definition of ‘retransmission’ under the Treaty to the definition of ‘rebroadcasting’ under the Rome Convention conclude, “Clearly, a higher level of protection is granted to broadcasting organizations under the proposed Treaty; one that was so far not guaranteed to them by international conventions’ and clearly this is because of a shift towards a rights based approach.”
Now, this is a grossly erroneous comparison since a rebroadcast is different from retransmission. A rebroadcast is the redistribution of broadcast signals over traditional platforms while a retransmission is the redistribution of the signal over non – traditional platforms (mostly internet). Article 13 (a) of the Rome Convention protects a broadcasting organization against the unauthorized rebroadcast of its signals. However, there is no protection for unauthorized retransmission. Thus, if a broadcasters’ signal is simultaneously transmitted via cable or internet without its authorization, there is no legal redress available to it under the Rome Convention. For filling this lacuna amongst others, the need for the Treaty was expressed by the broadcasting organizations. Just because a right has so far not been recognized, does not make a case that it should never be (or else we should have never had the WIPO Internet Treaties!)
Further, how does granting retransmission rights lead to a shift in the rights based approach? A broadcaster’s right to prohibit the retransmission of its signal does not grant it the right to prohibit the redistribution of the underlying content. That right is solely vested with the copyright owner, unless the broadcasters is also the content creator. A plausible reason for the authors conclusion could be that at the time of writing the paper, the revised consolidated text was not released.
(d) Definition of rights management information :
On page number 74, the authors while analyzing the definition of ‘rights management information’ under the Treaty state, “Clearly the current treaty extends the protection offered to rights management information to pre – broadcasting signals in addition to broadcast signals, this represents a higher level of protection granted to broadcasters under the proposed Broadcast Treaty as compared to any other international treaty including the WIPO Copyright Treaty, the WPPT and the Beijing Treaty.”
This is akin to comparing apples to oranges considering that the subject matter of all the stated international treaties (the WCT, the Beijing Treaty and the WPPT) is fundamentally different from the subject matter of the Treaty.
The WCT is a special agreement under the Berne Convention which protects the right of authors suited for the digital environment. Accordingly, its rights management information provisions has been modeled to identify the work of the author and other related information. It does not make any provisions for the identification of a broadcasters signal (either pre – broadcast, live or deferred). Same holds true for the Beijing Treaty which protects the rights of performers in their audiovisual performances. Accordingly, its rights management information provision protects information that identifies the performer, his/her performances and other related information. Similarly, the WPPT protects the rights of performers and the producers of phonograms. In that vein, its rights management information provision protects information identifying the performer, the performance of the performer, the producer of the phonogram and other related information.
Infact, none of the international treaties (Rome Convention and the Brussels Convention) protecting the rights of broadcasting organizations in their broadcast signals protect their rights management information making the authors argument preposterous.
I will save my rebuttals to the Rights section of the paper for the next two posts.