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

iii. Stakeholders Affected by the Proposed Treaty

26 The proposed treaty has implications for a large number of stakeholders, including the 184 WIPO Member States and hundreds of organizations recognized by the World Intellectual Property Organization with permanent observer status, such as international non governmental organizations, international intergovernmental organizations, and national non governmental organizations. Some stakeholders primarily represent national interests; some represent organizational and enterprise interests; others represent individual or broader social interests. Although the proposed treaty deals with signal protection rather than copyrighted works themselves, stakeholder stances regarding signal protection are often shaped by their interests in the dissemination of content because content is embedded in signals.

27 Stakeholders have varying interests that sometimes diverge from and converge with each other. In order to focus on the fundamental interests of stakeholder groups and the ways the proposed treaty will affect them, we have divided stakeholders into seven broad categories: authors and performers, production firms, rights owners and licensers, broadcasters (terrestrial and satellite) and cable and satellite system operators, audiences/users/consumers, states/governments, and society. This allows functional identification of the divergence of interests among the stakeholder groups and provides the ability to highlight distinctive interests.

28 It is recognized, however, that individuals and organizations may perform activities that pertain to more than one category of stakeholder interest, and that there is therefore sometimes divergence of interests among members of the same groups. Thus, although the stakeholder groups below are separated into discrete categories, one must bear in mind that individuals and firms may have interests that cross over the categories and that the distinctions are not completely clear or mutually exclusive.

29 Examples of this include an ‘author’ who maintains some of her or his rights but has passed on management of some of the rights to a collective rights organization. A broadcaster may also have interests as a producer and as a holder of rights to original content or rights purchased from external sources. At times there may be tensions between roles played by these cross-over activities, but there is a shared common interest in intellectual property measures to achieve optimal protections for creations and the systems that underpin them and provide the ability to benefit from them.

30 Stakeholders vary widely in economic terms, with some holding greater bargaining power and receiving the larger portion of industry receipts. This occurs because there is, relatively, a highly competitive supply of creative works and labor from authors and performers, but a limited number of production and distribution companies in broadcasting and cablecasting. Similarly there is more competition among production companies, but far less competition among broadcasting and cablecasting systems due to structural, economic, technical, and regulatory conditions limiting the number of broadcaster and cablecasters and cable and satellite systems. Although contemporary telecommunications are reducing the monopolistic control over production and broadcasting distribution activities that existed in the twentieth century, greater bargaining power still remains with broadcasters and cablecasters, although it is being somewhat offset by the growth of large content rights holders and licensers and the rise of computer network platforms for distribution.

31 In discussing stakeholders, we do not assert any preferential positions, but attempt to explicate as clearly as possible their fundamental interests and concerns relative to copyright protections and the proposed treaty.

Authors and Performers

32 Authors and performers obtain income from licenses and sales of rights based on their creative works and performances. Copyright traditions vary around the world, but distinctions are generally made between ‘authors’ and others, including performers.

33 An ‘author’, in this sense, refers to the individual or individuals who originate expressions. Copyright is seen to vest initially in this source, meaning economic rights and, in some cases, moral rights as well. Moral rights link the creator and the creation, and are therefore said to bear on the authenticity of the product. Authorship covers literary authors, journalists, writers, photographers, film and TV directors, satirists, graphic designers, lyricists, composers, and others. In the European tradition, they are automatically vested with economic and moral copyright, essentially meaning that they stand as independent creative producers selling their creative work to an employer or other purchaser who needs to negotiate over additional exploitation of the products not envisioned in the original terms of employment or exchange. In the Anglo-American tradition, authors may be independent creators or employees. Employment status is understood to signify a default position whereby employees transfer all their rights to the creative work as part of the employment agreement, and the work belongs to the employer. This is known as the “work for hire” system and is a tradition not universally embraced worldwide.

34 Performance is generally understood as distinct from authorship, in that it represents a subsidiary expression—as in, for example, a singer performing a song written by someone else on a television entertainment program. The rights of performers can be seen as ‘neighboring rights’ to authors’ rights, with certain protection entitlements, and are of a different nature. Performers are thus often attributed such ‘neighboring rights’, which enable them to authorize both live performances and recorded ones.

35 Authors and performers share a strong common interest in obtaining a fair share of economic benefits from any use, reuse, or adaptation of their creations or performances. In addition, some authors and most performers are heavy users of copyrighted works¹² and generally support ease of access to works of other creators for their own use, reuse, and adaptation. Consequently many creators support Creative Commons’ licensing possibilities, which provide explicit flexibility in the form of diverse reuse categories and combinations for content.

36 It should be noted that the interests of highly successful authors and performers sometimes differ significantly from those who are less successful. These differences are sometimes manifest in the sources of their incomes, in differing abilities to protect their incomes contractually, and in costs and prices paid for collective rights management services.

37 Regarding protection of signals, this category of stakeholders generally supports it inasmuch as it limits unauthorized exploitation of their work. However, in instances where their motivation as authors or performers is the maximum unconditional dissemination of their work, authors and performers are concerned that any potential user of their broadcast work could possibly be construed, under the treaty, to be required to obtain a separate consent of the broadcasters whose signals carry their content, even when creators have waived copyrights to their product. Because broadcasters’ rights in their signals do not extend to rights in the content, however, the user who wishes to use the content has the option of dealing directly with the author/performer and seeking permission for the use of their content, without involving the use of the version embedded in specific broadcast signals.

38 Authors and performers as stakeholders are directly represented by a variety of organizations worldwide, including professional associations of authors, journalists, composers, actors, and musicians.