E sccr/21/2 Original: English date: August , 2010 Standing Committee on Copyright and Related Rights Twenty First Session Geneva, November to 12, 2010

Unauthorized Use in the Terrestrial and Satellite Environment

87 In the terrestrial broadcast and satellite broadcast environment five types of unauthorized uses primarily occur: unauthorized reception, unauthorized decryption, unauthorized retransmission, unauthorized fixation, and unauthorized post-fixation use.²¹

Unauthorized Reception

88 Unauthorized reception involves acquisition of signals outside the market for which it is intended, typically as a result of spill over of terrestrial and satellite broadcasting.²² It occurs when the signal range or footprint extends beyond intended market or territorial boundaries and is accessed by audiences in other states or markets. This is sometimes called ‘grey market’ reception and may involve both free-to-air and pay signals.

89 Unauthorized reception provides consumers more choice in content than may be available in their domestic markets, but typically does not provide additional revenue for broadcasters.

90 When advertising-supported broadcasting is involved, advertisers pay for the audience in the intended market, but may gain additional benefits from the external audience being exposed to their messages. This is sometimes the case for multinational brand advertisers and local advertisers in cases where trading areas cross market or national borders. However, some advertisers in the unintended territory or the external market may be negatively affected by the competing ads carried by the signals that are received without authorization.

91 Unauthorized reception also relates to the right of making available to the public. Broadcasts and cablecasts are often made directly available to the public through receipt on a screen in a café or tavern, hotel lobby, or in other premises open to the public. Often such entities need to procure special licenses for the exploitation of intellectual property through receiving it in such a locality. In turn, such licenses generate revenues for rights owners (including broadcasters), for example, through payments to collection societies. It appears that the treaty would not require such businesses to acquire an additional license for receiving the signal as such, unless the signal was fixated, retransmitted, or redistributed.

92 Unauthorized reception does not in itself increase the production, programming, or distribution costs to broadcasters because those costs were incurred for serving the intended market and audience. It may increase distribution costs if contractual provisions for acquiring content rights require use of encryption technologies to limited unauthorized reception outside the intended market.

93 Portions of the objections to unauthorized reception result from the traditional business practice of selling and acquiring content rights on a territorial basis. Broadcasters that acquire content rights from external suppliers and include the content in their broadcast streams are authorized only to use the content within their designated territory. Significant unintended acquisition in neighboring territories may result in diminished value for the rights holders if they also sell the rights to broadcasters in those markets. Similarly, unauthorized reception in neighboring countries may result in diminished value for broadcasters if they also broadcast in those markets. This is especially applicable to international broadcasters.

94 Unauthorized reception is somewhat sheltered by human rights conventions. Article 19 of the Universal Declaration of Human Rights, for example, stipulates that “Everyone has the right to … receive and impart information and ideas through any media and regardless of frontiers.” This would seem to have relevancy to and implications at least for efforts to halt unauthorized reception of free-to-air spill over signals, although many accept the right to receive paid signals as conditioned by payments.