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

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

(f) Right of distribution : 

On page 79 and 80, the authors while comparing the right of distribution under the Treaty to the right of distribution under the WCT, the WPPT and the Beijing Treaty conclude that the right of distribution was already protected by previous international instruments. Now, this a fallacious argument to say the least.

Article 6 of the WCT vests the right of distribution (also known as the making available right) to the authors of literary and artistic works of their works. Performers have been granted the same right with respect to their performances by Article 8 and Article 10 of the WPPT and the Beijing Treaty. Producers of phonograms have the same right over their phonograms by virtue of Article 12 and Article 14 of the WPPT. So far none of the international treaties including the Rome Convention grant a making available right to the broadcasting organizations. In that case, how does granting rights which have so far not existed lead to the creation of an ‘additional layer of protection’?

In present times, the unauthorized making available of fixed broadcasts over internet is the most rampant form of signal piracy. Pirates convert the fixed broadcasts of broadcasting organizations into digital format and place them on user – generated websites such as YouTube. Users are then able to access it by either video streaming services or by downloading the whole file. For preventing this unauthorized act, a making available right is an absolute must for the broadcasting organizations. In that vein, the draft text clearly reflects the needs of the industry. Infact, even Section 37 of the Indian Copyright Act recognizes this right in the form of broadcast reproduction right. 

(g) Protection of Rights Management Information (RMI) :  

On page 81, the authors compare the provision on rights management information under the Treaty to those provided by the WCT, the WPPT and the Beijing Treaty. I’ve already written about this here on why this was an incongruous comparison.

(h) Term of protection : 

On page 82, the authors compare the  term of protection under the Treaty to the term of protection under the Berne Convention, the Rome Convention, the WPPT and the Beijing Treaty. Needless to say that this is an erroneous comparison since the term of protection under each of these treaties is applicable to its underlying subject matter. Hence, for instance, the term of protection of an artistic or literary work will be independent of the term of the protection of the broadcast signal which carries the same underlying content.

The authors argument that the term of protection envisaged under the Treaty extends protection to copyrighted works is a flawed one. As I’ve repeatedly been saying, the right of broadcasting organizations in their broadcast signal is independent of the right of copyright owners in the underlying content. Subject to exceptions, their rights are mutually exclusive.

According to the authors, the term of protection under the Treaty commenced not from the first broadcast but the last broadcast. Now, this a misinterpretation of Article 11 of the draft text. Alternative A of Article 11 clearly states that the term of protection shall be computed from the end of the year in which the broadcast signal was broadcast. It does not say that the term of protection shall be computed from the last broadcast.

Further, the authors apprehension about the term of protection under the draft text leading to ever – greening of copyright protection is misplaced. Firstly, there cannot be any ever – greening of copyright protection as the Treaty is a neighboring rights treaty and not a copyright treaty. The term of protection subsists for each broadcast; irrespective of the term of protection for the underlying content. Therefore, the term of protection of the broadcast has nothing to do with the term of protection of the underlying content. I’ve explained this at length here. Secondly and most importantly, the object of protection as per the revised consolidated text makes it aptly clear that there shall be no protection with respect to mere retransmissions. This precludes any attempt by broadcasting organizations to seek protection under the Treaty by merely retransmitting their original broadcast signal.  

(i) Limitations and exceptions to protection :  

On page 83, the authors compare the limitations and exceptions under the Treaty to the limitations and exceptions under the various international treaties and conclude that the limitations and exceptions under the Treaty could possibly be narrower than those under other international conventions. As I’ve explained before, not all the alternatives of the draft text are restrictive in nature. Delegations would have to make a careful balance to strike a chord between their national copyright legislation and their international commitments under the Treaty.

Needless to say, I fully agree that limitations and exceptions are a critical part of the Treaty and need elaborate deliberations amongst the national delegations.

Conclusion :  

An earnest attempt was made by the authors to delineate and compare the Treaty provisions to other international treaties. However, it would have been befitting had they backed their banal assertions by sound legal reasoning Particularly glaring is their incongruous comparison to unrelated international treaties. How is a neighboring rights treaty on broadcasting organizations comparable to a copyright treaty or to a neighboring rights treaty with a different set of intended beneficiaries? I wish that the authors would have known that apples are comparable only to apples; and not to oranges!   

 

 

 

 

 

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

International IP lawyer with interdisciplinary research interests in international copyright law, the global politics of intellectual property, copyright law, international law and international relations.
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