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Published on February 26, 2008

Author: Chloe

Source: authorstream.com

What is the WIPO Broadcast/ Cablecast/Webcast Treaty, and How Will It Change Ownership of Information?:  What is the WIPO Broadcast/ Cablecast/Webcast Treaty, and How Will It Change Ownership of Information? Copyright in the Digital Age TACD Committee on Intellectual Property Brussels, Belgium, Europe, Planet Earth February 4, 2004 Manon Ress Consumer Project on Technology What is the World Intellectual Property Organization (WIPO) Mission?:  What is the World Intellectual Property Organization (WIPO) Mission? WIPO recently issued a Millennium Declaration http://www.wipo.int/about-wipo/en/ - in which the term “intellectual property rights” is held to mean in essence those rights enshrined in Article 27 of the Universal Declaration of Human Rights, adopted by the United Nations in 1948, namely that: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” and “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” What are Copyright and Related Rights?:  What are Copyright and Related Rights? Copyright works covered: literary works --novels, poems, plays, reference works, newspapers and computer programs; databases; films, musical compositions, and choreography; artistic works such as paintings, drawings, photographs and sculpture; architecture; and advertisements, maps and technical drawings. Related Rights differ from copyright, they belong to owners regarded as intermediaries in the production, recording or diffusion of works. Related Rights Provide A Layer Of Protection For Those Who Communicate And Distribute The Work To The Public:  Related Rights Provide A Layer Of Protection For Those Who Communicate And Distribute The Work To The Public A musician performs a musical work written by a composer, an actor performs a role in a play written by a playwright, producers of phonograms -- or more commonly known as "the record industry" -- record and produce songs and music written by authors and composers, played by musicians or sung by performers, and broadcasting organizations broadcast works and phonograms on their stations. How are copyright and related rights protected on the Internet?:  How are copyright and related rights protected on the Internet? Two treaties were concluded in 1996 at the World Intellectual Property Organization (WIPO) in Geneva. The WIPO Copyright Treaty (WCT), deals with protection for authors of literary and artistic works, such as writings and computer programs; original databases; musical works; audiovisual works; works of fine art and photographs. The WIPO Performances and Phonograms Treaty (WPPT), protects some “related rights” performers and producers of phonograms. When new rights and protections are created, WIPO often says it is “updating” and “supplementing” existing protections:  When new rights and protections are created, WIPO often says it is “updating” and “supplementing” existing protections The WIPO Treaties were presented as a response to developments in digital technology and in the marketplace. “the owners of rights will be adequately and effectively protected when their works are disseminated through new technologies and communications systems such as the Internet”. They also create new online rights such as the right to use technological measures the “anti-circumvention” provision requires countries to provide adequate legal protection and effective remedies against the circumvention of technological measures (such as encryption). the second type of technological measures require countries to prohibit the deliberate alteration or deletion of electronic “rights management information” (i.e. information which identifies the work, its creators, performer, or owner, and the terms and conditions for its use). How Has WIPO Defined Broadcasting?:  How Has WIPO Defined Broadcasting? WIPO SCCR/7/8 described broadcasting as follows: Main features have not changed since the 20th Century: broadcasting service is sending a stream of signals containing images/sounds for reception by the public at large. One transmitter can reach an audience of 2,000 or 2,000,000. Marginal cost for extra listeners or viewers is effectively zero Some broadcasting organizations finance their activities through advertising or license fees. Others are financed by subscriptions. What is the legal framework for the protection of broadcasters?:  What is the legal framework for the protection of broadcasters? Broadcasting organizations are protected as holders of related rights under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention, 1961). Broadcast content as such, as opposed to broadcast signals, can also be protected by copyright and related rights, depending on the national legislation. Under the Rome Convention:  Under the Rome Convention The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, better known as the "Rome Convention“ was adopted in 1961 and has not been revised since. It is jointly administered by the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Labour Organization (ILO) and WIPO. Articles 13 &14: Rights to authorize or prohibit: re-broadcasting, fixation, reproduction of fixations, communication to the public in places accessible against payment of an entrance fee. There are exceptions and limitations for private use, short excerpts for reporting current events, internal ephemeral fixation, use solely for teaching or research Protection of broadcasters under the TRIPS Agreement:  Protection of broadcasters under the TRIPS Agreement The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which is administered by the World Trade Organization (WTO), incorporates or refers to this international protection, in Article 14. For 20 years, broadcasters “have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same.  Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).” And there are other international treaties that concern copyright and related rights protection ... :  And there are other international treaties that concern copyright and related rights protection ... Slide12:  For example, the 1974 Brussels Satellites Convention addresses the question of protection of pre-broadcast program-carrying satellite signals by obliging member states to undertake measures against unauthorized distribution. In the EC:  In the EC At Community level, broadcasters’ rights are harmonized by: the Rental and Lending Right Directive 92/100/EEC the Cable and Satellite Directive 93/83/EEC, the Term Directive 93/98/EEC Directive 2001/29/EEC on the harmonization of certain aspects of copyright and related rights in the information society In the US :  In the US The Federal Communications Commission (FCC) regulates interstate and foreign communications by radio, television, wire, satellite, and cable.  It was created by the Communications Act of 1934 (47 U.S.C. 151 et seq.) to regulate interstate and foreign communications by wire and radio in the public interest. For Cable: Title 47 of the US Code 553 (a)(1) states that: No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law. US FCC approved broadcast flags:  US FCC approved broadcast flags In early November 03 the FCC approved the use of "broadcast flags" for digital broadcast television. TV and motion pictures industry pushed for it as a necessary step to the U. S. transition to digital TV set for completion by 2006. The technical part of the proposal or "the flag" is a simple method for marking digital television programs for copy protection. The regulatory provisions require that all digital television (DTV) receivers and devices that receive content (TV, computers, DVD recorders, digital video recorders) be built to protect DTV content marked by the flag. US public concerns re broadcast flag::  US public concerns re broadcast flag: ramifications for "fair use" ability to undertake activities such as "time-shifting" and other forms of reasonable copying great concern has also been voiced by IT companies and consumer groups about the effect of the flag regulation on competition and innovation and also the possible "creep" of flag regulation. In Canada:  In Canada The law is clear on satellite signal theft. In the spring of 2002, the Supreme Court of Canada unanimously ruled that unauthorized reception of satellite signals is illegal. Since the ruling, the broadcasting industry, led by companies like Bell ExpressVu, has worked closely with the Government to stop signal theft. Illegal equipment has been seized, charges have been laid, and dealers supplying illegal equipment have been shut down. The issue is enforcement. Broadcasters are on the WIPO SCCR Agenda since November 1998 (First Session). :  Broadcasters are on the WIPO SCCR Agenda since November 1998 (First Session). WIPO Secretariat in SCCR/1/3 pointed out while some countries do not grant related rights for broadcasting organizations they include broadcast as a category of works under copyright. Negotiators looked at the compilation of various drafts (78 pages) in November 2003 and could not agree on a date for a Diplomatic Conference. Main issues were object of protection, subject of protection and scope of protection…should webcasting be included? By April 2004, the Chair’s draft should be available! At the next meeting of the SCCR on June 7-10, 2004, there will be an attempt to schedule a diplomatic conference. The Proposed Treaty is controversial. :  The Proposed Treaty is controversial. Who should be covered? Traditional broadcasters Cable providers Internet webcasters? Should it be about “expanded” rights, or signal piracy? What rights are needed or appropriate? Does a new layer of rights prejudice copyright owners or the public? How long should be the term? Why should protection of “investment” last so long? What are the proposed rights?:  What are the proposed rights? the right to authorize or prohibit fixations of broad/cable/web casts, including broadcasts made by wire; the right to authorize or prohibit the reproduction of such fixed broad/cable/web casts; the right to authorize or prohibit the retransmission of broad/cable/web casts; the right of making available to the public of fixed broad/cable/web casts ; the right to authorize or prohibit the communication to the public of broad/cable/web casts, if such communication was made in places accessible to the public against payment of an entrance fee, the right to authorize or prohibit the distribution of fixed broad/cable/web casts. The issue of signal piracy is addressed by a provision on the protection of signals prior to their broadcasting and provisions on the protection of technological measures and rights management systems. Key Issue #1 Term Extension:  Key Issue #1 Term Extension The new treaty would extend broadcasters (and cablecasters/webcasters’) rights from the 20 years in the TRIPS and the Rome Convention to 50 years. What is the rational? TRIPS+? What is the public interest in giving organizations (who are NOT the creators of content but the “casters”) 50 years of exclusive rights? This shrinks the public domain, and harms the public. Key issue #2: Definition of Webcasting :  Key issue #2: Definition of Webcasting There is NO established legal definition of “Webcasting” or “webcaster”. It might apply to “various kinds of services over the web with varying degrees of interactivity”. What does the making accessible of transmissions of the same sounds, images, or sounds and images or the representations thereof, by wire or wireless means over a computer network at substantially the same time mean? Some are concerned that this new instrument would be used to exercise rights in areas that currently not considered protectable (i.e. a play list on a webpage?) Questions on whether Internet activities such as the operation of listserves, peer to peer networks, the distribution of text documents, or more generally posting materials that are available for download and then archived ...be all covered by the treaty? Key Issue #3: Impact of Technological Measures on::  Key Issue #3: Impact of Technological Measures on: privacy innovation consumer convenience and perceived value the ability to archive materials the public rights under the various exceptions to rights such as the rights of the blind or both non-commercial and commercial fair use rights the relationship between new digital rights management systems and the framework for recognizing and enforcing non-negotiated mass market contracts that are embedded in documents or web page servers Technological Solutions:  Technological Solutions Some of the rights management technologies presented contemplate a world where copyright and related “casting” rights means "perfect control“ Not only over whether works are copied, but even over when, where, and how they are used. In that world, technology will guarantee that a right holder's wishes are law. To summarize: :  To summarize: The Treaty takes information out of the public domain and give “casters” 50 years of exclusive rights They would have the rights to prohibit AND authorize which could “overlap” with content owners rights The definitions of webcasting are unworkably vague and will predictably lead to expansive interpretations of the scope of the rights. Treaty proponents cannot explain if the treaty will apply to text distributed on web pages or on the archives of list serves. Images and sound are covered. The new restrictions on technological measures will create a host of problems for private copying, creation of derivative works, access for the visually impaired, creation of historic archives, use for non-commercial purposes. Signal Protection?:  Signal Protection? What is the problem? Signal piracy can take a number of forms, ranging from individuals tampering with locked service boxes to make unauthorized cable television service connections, to highly organized groups selling access codes and equipment that enable their customers to illegally decode encrypted satellite signals. In some countries an entire "black market" industry has developed, which includes the importation of illegal equipment, networks of retail dealers selling such equipment, software "hackers" who continuously work at defeating security systems, and the distribution of "how to" guides on numerous internet websites. However theft or "piracy" of broadcast signals is an illegal activity in most countries…. Need for a New Instrument and New Rights?:  Need for a New Instrument and New Rights? Since the Rome Convention, new types of works, new markets, and new methods of use and dissemination have emerged A new treaty should require countries to provide a framework of basic rights, allowing creators to control and/or be compensated for the various ways in which their creations are used and enjoyed by others. Slide28:  However, The proposals on the table fail to maintain a fair balance of interests between the creators /owners of rights, the “casters” and the general public. The proposals do not clarify reasonable flexibility in establishing exceptions or limitations to rights in the digital environment. Countries should be free to grant exceptions for uses deemed to be in the public interest, such as for non-profit educational and research purposes that go beyond Rome which for example limits compulsory licenses to “broadcasting of performances; broadcasting of phonograms and communication to the public of certain broadcasts”. Without evidence, the proposals should not include webcasting and let the technology evolve before restricting some of its use. For more information: :  For more information: www.WIPO.int http://www.wipo.int/copyright/en/index.html http://www.CPTech.org Manon Ress Consumer Project on Technology PO Box 19367, Washington, DC 20036 USA manon.ress@cptech.org Tel:1.202.387.8030 Fax:

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