Atharva Sontakke brings us his 3rd entry to our SpicyIP Fellowship applicant series with this post looking into the WIPO Broadcasting Treaty – and whether signing such a treaty would make sense for India or not. Readers interested in the topic may also want to take a look at the Centre for Internet and Society’s comments to the HRD ministry on the WIPO Broadcasting treaty – available here. Atharva is a 3rd year student at GNLU. His previous submissions include “Cricket, Death and a Trademark!” and “‘Ownership’ of Social Media Contacts“. [The deadline for submission of entries for our Fellowship application has now passed. We shall be going over the submissions received thus far and will announce the winners soon].
WIPO Broadcast Treaty- An Unnecessary Evil?
By: Atharva Sontakke
Rights of broadcasting organizations are special rights within the ambit of copyright regime granted to broadcasting organizations to protect their investment in broadcasting any work. The Rome Convention of 1961 was the first treaty which laid down minimum protection standards for broadcasting organizations. They were given the right to authorize certain acts relating to their broadcasts like re-broadcast (restraining other broadcasters from simultaneously broadcasting the same signal), fixation (recording), reproduction of fixed broadcasts and communication to the public (for better understanding of the distinction between these concepts one can refer to the document explaining terms and concepts released by WIPO). The Convention though is limited to over-the-air transmissions alone and does not cover cable transmissions. The TRIPS Agreement also reflected the provisions of the Rome Convention and did not create any new rights. Considering the fact that the Rome Convention has not been updated since its enforcement, many broadcasting organizations had been lobbying with the WIPO for extending the protection granted in view of the rapid technological advancements and new forms of broadcasting platforms. In light of this, in 2007 WIPO General Assembly a mandate was set forth to draft a new treaty, titled ‘Treaty on the Protection of Broadcasting Organizations’, to address the concerns of broadcasting organizations.
The major concerns of broadcasters essentially stem from two technological developments, first is the proliferation of various platforms (Internet, Mobile TV, cable transmissions etc.) to make content available and second the blurring of technological boundaries between various media which is also known as convergence. As a result, signal theft has become a rampant practice and it has also become extremely easy for information once meant only for TV to be made adaptable to different platforms like Internet, mobile TV etc. These different platforms can now carry essentially similar kinds of services. The trend, especially in sports industry, is also in line with the concept of convergence where all content related rights are sold together to one entity as bouquet rights. Broadcasters, therefore, want a technology-neutral protection for their broadcasts on various new technological platforms. The detrimental impact of such broad protection shall be discussed later.
Actually, the very need for such a treaty [for India] is unclear. The three important elements of broadcasting- broadcasting infrastructure, licensing of copyrighted works and creation of copyrighted works are already protected under the existing legal system. The Copyright Act, 1957, by way of S. 37 already incorporates all provisions as specified in the Rome Convention and the TRIPS Agreement. Such rights can be broadly classified into two categories. First, the right against signal piracy, which protects the broadcasters from anyone else simultaneously broadcasting their signal. The rest of the rights arise after the broadcast has been made where the signal itself ceases to exist but the broadcast is fixated or recorded in some other form for subsequent use. These subsequent rights are already protected in India under the existing copyright regime which include right to reproduce or re-broadcast the original broadcast. So any protection afforded by the new treaty must be restricted exclusively to the signal itself and not beyond that. Adopting such a signal-based approach over an exclusive-rights based approach will ensure that broadcasters do not stem free flow of information.
To understand this it is important to clarify the nature of broadcast reproduction rights in India. According to S. 14 of the Copyright Act, an author of the original work has the right to communicate the work to the public. This right to communication also includes the right to communicate through a broadcast. The broadcasting organization can acquire a license from the author and convert the work into a signal and broadcast it. Therefore, the right of broadcasting organizations is subject to the right of the authors who own the copyright in underlying content. The law intended to create a monopoly of organizations only with respect to the mode of transmission of the content, not with respect to the content being transmitted through any other mode. There are different modes by which content can be broadcasted. And it is the right of the author to have his work broadcasted by any mode he chooses. These different means of broadcasting must be treated differently. The Bombay High Court has recognized this point in Video Masters v. Nishi Productions .In this case the plaintiff claimed that he had bought the sole and exclusive video rights of a copyrighted film from the defendant and that the defendant gave away the cable TV rights to another person. The court made a clear distinction between the satellite rights and cable TV rights and held that both rights, although species of broadcast right only, can exist with different persons at the same time, and that would not amount to infringement of the plaintiff’s rights.
The latest working draft of proposed WIPO treaty has in fact suggested granting an exclusive right to broadcasters to communicate the work to the public (see Paragraph 9 (1) (iii) ). Such a right conflicts with the Indian position because the right to communicate the work vests completely with the author of the work. Such right, if given to the broadcasters, will lead to unnecessary proliferation of rights. A licensee, in that case, would have to obtain a license not only from the author of the work but also from the broadcaster. Moreover, broadening of definitions of ‘retransmission’ or ‘rebroadcast’ and ‘reproduction’ to include transmission over all media forms including the Internet is likely to create monopoly over the content itself, even in cases where the underlying content may not be protected by copyright.
Surely the whole point is to protect valuable signals (such as a cricket match) that are not copyright works? This does not conflict in the slightest with existing Indian copyright law. The author of a broadcast copyright work has no rights in the signal today.
there is need for wipo broadcasting treaty because indian copyright law does not provide protection for pre-broadcast signals which carry programs.In such case, if anyone thefts these signals, it will not amount to infringement and hence no offence will be constituted. This proves the need for such treaty. This article provides partial insight.
Neither does the Indian Copyright Act, 1957 protect pre – broadcast signal nor does it clearly spell out the ownership of Broadcast Reproduction Right. Further, there is no reciprocity for protection of Indian signals in foreign countries. In this situation, a harmonized international framework affording similar protection to broadcasting organizations is imperative.
Some of the arguments of this post are conceptually flawed –
(i) On the right of communication to the public : The draft text of the Treaty grants broadcasting organizations an exclusive right of communication to the public of their “broadcasts” – which is distinct from the right of communication of copyrightable work/content. Infact, the latter is not even the subject matter of the Treaty. Hence, a licensee will have to seek a license from the broadcasting organization only for the “broadcast” and not the underlying content – which can be procured from the original source.
(ii) On monopolization of content : Firstly, the Treaty will monopolize a broadcasting organization’s “broadcast” and not “content”. For accessing public domain works, the content from the original source would be freely available for all to use. In few cases, public domain works such as news are both created and broadcasted by the broadcasting organizations. In this event, since there is no copyright over the work, no protection shall subsist even for the broadcast (since it will be the subject matter of limitations and exceptions).
Some of the arguments in this post are conceptually flawed –
(i) On the right of communication to the public : The draft text of the Treaty grants broadcasting organizations an exclusive right of communication to the public of their “broadcasts” – which is distinct from the right of communication of copyrightable work/content. Infact, the latter is not even the subject matter of the Treaty. Hence, a licensee will have to seek a license from the broadcasting organization only for the “broadcast” and not the underlying content – which can be procured from the original source.
(ii) On monopolization of content : Firstly, the Treaty will monopolize a broadcasting organization’s “broadcast” and not “content”. For accessing public domain works, the content from the original source would be freely available for all to use. In few cases, public domain works such as news are both created and broadcasted by the broadcasting organizations. In this event, since there is no copyright over the work, no protection shall subsist even for the broadcast (since it will be the subject matter of limitations and exceptions).