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

II. Rationales for Protecting Signals

18 The primary rationales for seeking protection of signals come from the view that broadcasters need to be able to protect investments in disseminating program content to the public and investments in rights and licenses, as well as to recover operating costs expended and defend their revenue generation capacity. According to proponents of the treaty, these functions are threatened by unauthorized uses that are inadequately addressed, prohibited, or policed in many nations. The proponents also argue that an updated protection of signals would protect their investments in the production, assembly, and scheduling of programs, in the installation of broadcast infrastructure including technical and transmission facilities, and in specialized programming to create a niche market with sufficient revenue to pay for the exclusive content. Broadcasters (terrestrial and satellite) and cablecasters and related systems operators also invest in electronic access controls, hardware (e.g., set-top boxes) and software (encryption).

19 Whereas copyright is intent on protecting and rewarding creativity, the proposed treaty would create protection for economic investment in disseminating creative works via signals.⁷ It would protect the market-based commercial activities, as well as non-commercial activities, of broadcasting and cablecasting organizations upon which contemporary domestic and international broadcasting and cablecasting is increasingly based worldwide.⁸

20 Although content elements within signals are protected by other measures, broadcasters and cablecasters argue that contemporary unauthorized uses of signals make it difficult for them to fully exploit expensive content—especially coverage of live events, such as sports and concerts—because the unauthorized uses undermine investments in the transmissions and make cost recovery and profitable operation difficult. They argue that protecting signals is a mechanism that will enable them to protect intellectual property rights in which they have invested, and they say a parallel protection is provided with respect to phonogram producers and protects the entrepreneurial activity in producing a phonogram. According to broadcasters and cablecasters, a signal carries audiovisual content and—like a phonogram—is a vehicle that requires technical, financial, and organizational investment.

21 Broadcasting has traditionally been a domestic activity relying on free-to-air government, public service, commercial, and community broadcasters, depending upon domestic opportunities and policy choices. A legacy of that system is domestic broadcasting structures and policy and regulatory perspectives based on the ideas of universal access (to the extent possible) through state related or commercial funding mechanisms. These perspectives are less consistent with new services involving cable, satellite, digital terrestrial television, and broadband. This is especially true for services that are designed to attract less than universal audiences—even when across national borders—that are increasingly requiring direct consumer payments.

22 Proponents of the broadcast treaty assert that this new environment creates needs for additional protection that is not provided in existing treaties related to broadcasting or cablecasting.

23 Although wide differences exist worldwide in the availability and use of advanced broadcast and related technologies, these technologies are increasingly being rolled out in developing nations. Nevertheless, significant disparities exist among nations.⁹ The patterns of rollout also reveal wide domestic disparities, often related to urban-rural patterns of development and differential incomes. These produce differences in availability and access to television, pay television, multi-channel television, digital television, and video-on-demand services¹⁰ and wide differences in costs for acquisition, with consumers in developing nations paying a far higher proportion of GDP per capita for services.¹¹

24 Nevertheless, it is clear that there is a growth of paid services worldwide and that there is an increasing ability of many consumers in developing nations to pay for services. This increases the potential for creating commercial markets for broadcasting in its various forms. However, unauthorized uses of signals, particularly by commercial competitors or in ways that interfere with audiences of authorized signals, make it difficult to create effective markets in some states and regions, according to treaty supporters.

25 The underlying rationale for the treaty is thus to use state power to facilitate the creation of and protection of investments in signals to reach markets for commercial and non commercial television activities.