The Proposed Treaty for the Protection of Broadcasting Organizations : New Wine in a New Bottle (Part Two)

This is a continuation of my previous post where I rebut the central thesis of the paper ‘The Proposed Treaty for the Protection of Broadcasting Organizations : Old Wine in a New Bottle‘.  I will now proceed to the rights section of the paper : 

B. Rights Granted in the Broadcast Treaty 

The authors compare nine rights and protections under the Treaty to the Berne Convention, the Rome Convention, the Brussels Convention, the WCT, the WPPT and the Beijing Treaty.  These are the right of performance, the right of fixation, the right of communication to the public, the right of transmission, reproduction, distribution and the term of protection. Limitations and exceptions to the protections under the Treaty have also been compared.

(a) Right of performance :

On page 75, the authors compare the right of performance under the Treaty to the right of performance under the other international treaties. This is a grossly incongruous comparison for apples are comparable only to apples and not to oranges!  

Article 11 of the Berne Convention vests the right of public performance with the authors of dramatic, dramatico-musical and musical works while Article 14 vests the same right with the authors of literary and artistic works. Similar right has been granted to performers by Article 6 (1) and Article 11 of the Beijing Treaty and Article 6 (1) of the WPPT. Neither of these instruments grant the broadcasting organizations with the right to publicly perform their broadcast signal. The closest protection that can be found is Article 13 (d) of the Rome Convention which grants broadcasting organizations the right to communicate their television broadcasts to public places where an entrance fee is charged. Given the technological limitations of the Rome Convention, this right is only limited to television broadcasts and does not cover transmissions made via cable. For remedying this inadequacy, the draft text protects the public performance right of broadcasting organizations. In this event, how can granting rights which have never existed lead to an ‘extra – layer of protection’ and that too over ‘content’ when the scope of the right extends only to the ‘broadcast signal’? 

(b) Right of fixation : 

On page 76, the authors compare the right of fixation under the Treaty to the right of fixation under the Rome Convention, the Brussels Convention, the WPPT and the Beijing Treaty. Once again the authors by comparing the right of fixation under the Treaty to the right of fixation under the WPPT, the Beijing Treaty and the Brussels Convention compare apples to oranges. Broadcasting organizations are not the intended beneficiaries under either the WPPT or the Beijing Treaty. Accordingly, they do not grant broadcasting organizations, a right of fixation over their broadcast signals. Further, the Brussels Convention does not vest the right of fixation to broadcasting organizations.

It is only Article 13 (b) of the Rome Convention that affords this protection to broadcasting organizations. Even then, this is a limited right as it does not extend to cover fixation of still photographs. Given the advancement in technology, it is now possible to capture high resolution still photographs of broadcasts; which can be subsequently distributed without the authorization of the broadcasting organization. For safeguarding this right, a broader technologically neutral right of fixation has been proposed under the draft text

Further, the contention of the authors that the right of fixation under the draft text would extend to the underlying content is without merit. Alternative B of Article 9 (1) (i) clearly states that broadcasting organizations shall have the exclusive right to authorize the fixation of their broadcasts. Both the definitions of broadcast [Alternative (a) and Alternative (b) of Article 5 (b)] extend to the transmission of signal; precluding the underlying content from its scope. Needless to say that the right of fixation over the underlying content is and will remain that of the authors.  

Lastly, the authors state that the right of fixation under the Treaty would add an extra layer of protection as performers and authors are already vested with a right to fixation under international treaties. Now, this is again a flawed argument. Performers have a right of fixation over their unfixed performances, authors have a right of fixation over their work and in similar vein broadcasting organizations ought to be granted a right of fixation over their broadcast signal.  

Simpliciter, authors, performers, producers of phonograms and broadcasting organizations are distinct categories of rights holders. Unless otherwise provided by law, the rights of each category is distinct and independent to the rights of the others. 

(c) Right of communication to the public : 

On page 77, the authors while comparing the right of communication to the public under the various international treaties conclude that this right was adequately guaranteed by existing international conventions. Obviously, this is a wrong conclusion since apart from the Rome Convention, none of the other stated international treaties protect a broadcasting organization’s right of communication to the public. Even then, this is a limited right as transmissions made via cable will not fall within its purview. In this vein, the authors apprehension over the Treaty adding an ‘extra – layer’ of protection is ill – founded. 

(d) Right of retransmission : 

On page 78, the authors have compared the right of retransmission under the Treaty to the right of rebroadcast under the Berne Convention, the Rome Convention and the Brussels Convention. Again, this is a misplaced comparison.

Article 11 bis of the Berne Convention vests authors of literary and artistic works the right to broadcast their works to the public. This is fundamentally different from the right of broadcasting organizations to authorize the retransmission of their broadcasts. As far as the comparison with Rome Convention and the Brussels Convention is concerned, see my previous post.   

(e) Right of reproduction : 

On page 78, the authors compare the right of reproduction under the Treaty to the right of reproduction under the Berne Convention, the Rome Convention, the WPPT and the Beijing Treaty. Apart from the Rome Convention, the comparison with other international treaties is misplaced. Broadcasting  organization’s have a distinct and independent right in their broadcast signal; which is separate from the rights of other categories of rights holders. 

Article 9 of the Berne Convention grants the authors of literary and artistic works, a right of reproduction over their works. Similar right is granted to performers by Article 7 of the WPPT and the Beijing Treaty. Producers of phonograms have the same right by virtue of Article 11 of the WPPT. None of these treaties grant broadcasting organizations a right of reproduction over fixation of their broadcasts. Though, this right is granted to broadcasting organizations by Article 13 of the Rome Convention. Even then, this is a limited right as it does not take into account the current technological advances in the recording sector.

During 1961,  when the Rome Convention came into being, copying posed little threat due to the considerable difficulty in which copies could be made. Not only was creating copies a time consuming affair, the end product was also of low quality. However, in the digital age, pirates can create perfect copies with considerable ease. Due to this, the protection afforded by the Rome Convention runs into the risk of becoming redundant. Hence, it is imperative that the scope of the right and terms such as copying and reproduction of fixation is clearly defined in the Treaty. However, in its current form, the draft text does not spell out these terms.

I will analyse the other rights section of the paper in the next post.  

  

 

     

About Seemantani Sharma (My views are my own and they should be yours too)

Nomadic IP Lawyer. Penchant for reading, critically thinking and writing (at times ranting) about IP. Awaiting for the Eureka moment for clearing my perpetual muddled academic interest - the global politics of IP or its economics or their confluence Aspire to enrol for a Ph.D in international and comparative IP law in the next five years or so.
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