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

Right of Retransmission

203 The Rome Convention and the TRIPS Agreement provide the right of retransmission or rebroadcasting as a right to authorize or prohibit only with respect to wireless transmissions. Excluded from their scope is the transmission over wires—i.e., cable retransmissions. This is explained by the fact that cable television was still in its infancy at the time of the adoption of the Rome Convention and by the unwillingness to extend protection during the TRIPS negotiations. In practical terms, a free-to-air broadcasting organization does not have legal protection (under current international law) when its broadcast signals are transmitted via cable without authorization. A similar point would appear to apply to unauthorized retransmission via computer networks.

204 The proposed treaty seeks to remedy this by defining the right of retransmission as a right to authorize or prohibit retransmission of a signal “by any means,” including via cable or computer networks. This in itself will not give broadcasting and cablecasting organizations an unfair advantage over content copyright owners and other neighboring rights holders, whose rights are protected under the WIPO Internet treaties (i.e., WCT and WPPT).

205 The characterization of the right of retransmission as a right to authorize or prohibit “by any means” becomes meaningful in the context of unauthorized streaming of broadcasts. As an example, during the 2008 Olympic Games, unauthorized streaming of sporting events was rampant, resulting in 453 online infringement cases.⁶⁸ The Caribbean Broadcasting Union/Caribbean Media Corporation earlier faced challenges enforcing its exclusive rights and sublicenses to the Games in 1996 and dropped an effort to obtain an injunction against a broadcaster in Trinidad because it was impossible to be adjudicated before the Games were over.⁶⁹

206 A total of 364 unauthorized streaming sites across four major European football leagues were also reported during the 2007-2008 season, with a majority of the sites connected to unauthorized P2P-based streaming.⁷⁰ The ability to distribute, on the Internet, streams of sports events allows a quick and easy access to exclusive sports broadcasts, posing a significant adverse threat to both the sports organizations and the broadcasters.⁷¹

207 Unlike the TRIPS Agreement and the Rome Convention, the proposed treaty seeks to extend ‘broadcasting’ to include transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent. This formulation is patterned after the WPPT, which protects neighboring rights of performers and phonogram producers. Hence, encrypted signals also fall within the scope of protection of the proposed treaty. The proposed treaty defines ‘broadcasting’ as transmission by wireless means for reception by the public of sounds or of images and sounds or of the representations thereof. The term ‘representations thereof’ would cover the possibility of protecting signals in either analogue or digital form and whether encrypted or not. The same would apply to ‘cablecasting’.