In a previous post, I had made a cursory remark on the WIPO Treaty on the Protection of Broadcasting Organizations (WBT). Since the commencement of the negotiations for the WBT, the Indian delegation has expressed its reservations on some of the key provisions. This is possibly because voice has been expressed that no objective reason for the WBT had been established. However, this is far from true.
Ahead of the 32nd Standing Committee on Copyright and Related Rights (SCCR), scheduled from May 9th to May 13, 2016, I will highlight India’s position in the last two SCCRs. The upcoming SCCR could be decisive for the multilateral norm-setting by WIPO for protection of broadcasting organizations. I’ll highlight that there is a compelling need for India to support the WBT.
On a general reading of India’s official statement at the last two SCCRs, it’s clear that India is willing to engage in a dialogue with divergent stakeholders and possibly support the treaty once it’s assured that an equilibrium between the copyright owners, the disseminators and consumers is established.
At the 31st SCCR, December, 2015 :
- The Indian delegation maintained its prior position of the proposed broadcasting treaty to conform to the mandate of the 2007 General Assembly : adoption of a signal based approach strictly confined to traditional broadcasting and cablecasting. Exclusion of webcasters, computer networks, simulcasters or near – live or deferred transmission which it believes were based on different investment models.
- Against the inclusion of post-fixation rights in WBT as it believes that the scope of protection only covered signal protection.
- Flexible about considering fixation for rebroadcasting and time-shifting purposes.
- Supportive of limitations and exceptions for private use, for reporting current events, for education and scientific research and ephemeral fixation by broadcasting organizations for using its facilities and for its own broadcasts.
At the 30th SCCR, July, 2015 :
- Supportive of unauthorized live transmission of signal over computer networks only if the broadcasting organization had rights over the content.
- Strictly against creation of an extra – layer of rights over content for which broadcasters had a licence to broadcast only.
- Against a new “right of authorisation” as the “right to prohibit” covered the situation.
- Against post- fixation rights and in favour of limitations and exceptions.
Does India Need A Broadcasters Treaty?
Considerable opinion on the failure of the proponents of the WBT to elucidate its need has been voiced. Though, I’m of the view that the rai·son d’ê·tre for the WBT is firmly established.
Section 40 A (1) of the Indian Copyright Act, 1957 affords protection to foreign broadcasters against signal piracy in India. However, this reciprocity was unavailable to Indian broadcasters in most foreign countries. Hence, in the absence of an international legal framework, Indian broadcasters do not have a standing to sue under domestic legislation of a country where their signal is pirated. This calls for harmonization of legal protection afforded to broadcasters across all jurisdictions. The WBT is a step in that direction.
An opinion has been voiced that there was no need for the WBT as the Indian Copyright Act, 1957 had the same protection measures for broadcasting organizations as envisaged by the WBT. However, this is far from true. Neither does the Indian Copyright Act, 1957 protect pre – broadcast signal nor does it clearly spell out the ownership of Broadcast Reproduction Right. Hence, the WBT was imperative to fill the existing lacuna in domestic legislation
Studies have indicated that given the wide availability of pirated Indian movie content on the Internet, its demand was rampant. Majority of the probable consumers of these pirated movies were million of consumers residing abroad. Hence, there is a high probability of popular Bollywood movies being transmitted on new media platforms. If the WBT extends protection to illegal transmission over internet, it would go a long way in preventing loss of revenue to Bollywood on account of signal piracy. Losses on account of music and movie piracy are massive, with industry reports valuing it to approximately $4 billion per year. Further, India has the highest rates of video piracy in the world, underscoring the need for an effective international legal framework for protection of broadcasting organizations.
The WBT has found considerable support amongst Indian Broadcasters. Even then, the Indian delegation had not resonated the views of its own industry in the past SCCRs.
Inclusion of limitations and exceptions in the WBT has been expressed by the Indian delegation. However, it has faced stiff opposition from the majority particularly the European Union. A via media to solve this deadlock can be adopted. Provision for Exceptions and Limitations based on the industry or culture of the Member States or as provided by their national legislation may prove to a fruitful strategy. Same position has been adopted in several other international treaties. Example : Article 16 of the WIPO Performances and Phonograms Treaty.
Conclusion and Way Forward :
The last WIPO General Assembly ended in a political stalemate over several issues, with national delegations of various countries not supporting the WBT due to divergence of views. The WBT is perhaps the only IP treaty till date which is bereft of the classic North – South differences. Hence, these divergence of views is preposterous.
Signal piracy not only impedes the growth of Indian broadcasting industry severely but even causes substantial loss of revenue to Bollywood. Given this and the critical stage of negotiations, India should wholeheartedly support the WBT at the upcoming SCCR , which will be decisive for determining its fate. ” It’s Now or Never!“.