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 Retransmission

99 Unauthorized retransmission occurs when—absent permission of the broadcaster—an original live signal is rebroadcast, redistributed by a cable system, or redistributed by any means, including the Internet, so that it is received concurrently or in a delayed form. Such retransmission can be undertaken by individuals²³ and private or public entities.

100 This retransmission does not increase the costs of production, programming, or distribution to originating broadcasters. Price and revenue effects of retransmission differ, depending on whether free-to-air or paid broadcasting is involved and where the retransmission takes place.

101 Free-to-air broadcasters are not denied revenue from those who receive the rebroadcasts because their services are provided free of charge to audiences and are not denied revenue from the retransmitting organization, unless it would otherwise be able and willing to pay. However, if the free-to-air broadcaster is able to charge those receiving the retransmission, it loses the revenue from those able and willing to pay; and if it has the ability to charge for retransmission, the unauthorized retransmission may interfere with the ability to sell the signal to an operator willing to pay. Because such retransmission is often made to areas outside the broadcaster’s intended market and to additional audiences, it does not affect demand in its intended market. Demand in the intended market may be affected if the unauthorized retransmissions are reintroduced into the broadcaster’s intended market and advertising is removed or the content is disaggregated from the original stream. If consumers shift from viewing free-to-air broadcasts to viewing on unauthorized platforms and the original broadcaster does not benefit from that viewership in ratings, the originating free-to-air broadcaster may sustain harm.

102 Unauthorized retransmissions in the external market may have beneficial effects for the broadcasters if some advertisers find the larger market and audience effective and the broadcasters are able to ex ante price advertising services accordingly. However, an advertiser may not agree to pay higher advertising fees based only on a broadcaster’s proposition that it expects its signals to be ‘pirated’ and will reach beyond its intended market. In many cases, those making unauthorized retransmissions remove the ads from the original broadcasts and replace them with their own, removing the possibility of the potential benefit of higher-priced advertising services.

103 When unauthorized retransmissions reach external markets, broadcasters in the external markets face the possibility of lower audience ratings if their viewers shift to viewing unauthorized retransmissions. When this happens, broadcasters in the external markets are less likely to be able to negotiate better advertising services fees because of reduced audience ratings. Where paid broadcasters are involved, retransmission typically does not deny them payment for reception in the new areas served because they are not providing service there themselves and usually do not own rights and licenses in those areas. If their rights permitted such sales, however, they would be denied revenue obtainable by selling their services in the new market areas, but would need to build or acquire service infrastructures in the new market area.

104 In situations where unauthorized retransmission to new territories exists, the value of rights for rights holders may be diminished if they also market those rights in the new territory.