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 Post-Fixation Use

109 Unauthorized post-fixation use involves the exploitation of fixed broadcasts, such as reproduction and distribution of fixations, delayed retransmission of broadcasts using fixation, showing fixations on large screens in places accessible to the public, and making available to the public the broadcasts/cablecasts from the fixations, by wire or wireless means, in such a way that members of the public may access them from a place and a time individually chosen by them.

110 Unauthorized reproduction occurs when fixations of broadcasts are copied or reproduced without the authorization of the broadcasters and the owners of the content embodied in the broadcasts. Digitalization of broadcast signals makes it easier and faster to reproduce fixations of broadcasts. An exclusive right of reproduction, by itself, is not sufficient to stop any unauthorized distribution of fixations because the distributor can always claim that someone else made a copy or arranged the distribution.

111 Unauthorized distribution includes distribution of the original or copies of fixations of broadcasts and of reproductions of their broadcasts. This also occurs when original or copies of fixations of broadcasts are sold, imported, exchanged, or transferred without the consent of the broadcasters and the owners of the materials embedded in the fixed broadcasts. Unauthorized distribution includes the commercial sale to the public of videocassettes or DVDs of unauthorized copies of a sports program, in the broadcaster's country and abroad; sale to the public of recordings of a music concert derived from an unauthorized reproduction of the soundtrack of a radio or television event; rental of unauthorized recordings of a television broadcast by a video club; offering the service of making unauthorized copies of pre-selected television programs with a view to the sale thereof in video format; sale to the public of unauthorized recordings of broadcast programs by a dealer in video; and importation of fixations of broadcasts.

112 Making fixations available to the public includes on demand transmission of the fixations of broadcasts without the authorization of the broadcasters and the owners of the content embodied in the broadcasts. ‘On-demand delivery’ spreads the broadcasters’ footprint wider and enables the public to choose individually the time when and the place from which they access the protected materials. Broadcasters argue that for the same reason that corresponding ‘making available’ rights have been granted to authors, performers, and phonogram producers under the WIPO Internet treaties, broadcasting organizations should also have the right to make their broadcasts from fixations available to the public, by wire or wireless means.

113 Unauthorized transmission following fixation includes deferred retransmission, which is a new transmission from a fixation. Not all broadcasts are shown ‘live’ and many of them are made on a delayed basis, using fixations of broadcasts. Unauthorized transmission following fixation covers all transmissions by any means for reception by the public, including broadcasting, cablecasting, and transmission over computer networks, following fixation. This may, however, be qualified if the purposes and extent of retransmission falls within the framework of authorized exceptions.