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

Benefits to Rights Holders if Broadcasters/Cablecasters are Able to Control Signal, Retransmission, and Post-Fixation Rights

237 If broadcasters and cablecasters are able to control harmful use of their signals, and effective enforcement mechanisms are in place, their existing operations can develop effectively. Additional investments may then be forthcoming, contributing to the increased flow of information and entertainment and the economic development of the localities in which they operate. This should also produce benefits for many other stakeholders.

238 Rights holders to content in the signals will benefit from the reinforced position against unauthorized users of broadcasts and cablecasts and, owing to the independently existing rights in the program content, will also continue to be able to exercise their own respective rights against infringers.

239 Additional leverage against unauthorized uses will be gained from allowing a broadcaster/cablecaster to invoke protection on the basis of neighboring rights, rather than on contract or copyright theory.

240 Protection of broadcasters/cablecasters against signal misappropriation also has the effect of protecting legitimate national broadcasters against local competitors trying to secure a competitive advantage by exploiting foreign broadcasts without authorization.

XI. CONTRIBUTIONS OF UNLICENSED USE OF SIGNALS TO SOCIAL WELFARE

241 The fundamental principles of copyright recognize the importance of protected works to social welfare and the need to weigh the interests of rights holders with the interest of public access. It is well recognized that access to signals produces social benefits. The principles of copyright have a bearing on the issue of signal protection rights, not least because broadcast signals always have content embedded within them and the signal rights can be conceptualized as a neighboring set of rights that encompass the fundamental principles.

242 This section considers the social welfare benefits of unauthorized uses based on views expressed by some stakeholders and why the proposed treaty raises their concern. It does so to clarify concerns so that the effects of the treaty on those areas of concern can be assessed in the subsequent analysis.

Exceptions in the Public Interest

243 Legal traditions have long authorized instances of fixation, reproduction and dissemination of protected materials through exceptions and exemptions deemed in the public interest, such as the ‘fair use’ doctrine in the U.S., ‘fair dealing’ in the U.K. and other countries, and special rights for developing countries.

244 Established examples under various national legislations are the right to make private copies and to use portions or all of some protected works for the purposes of teaching, research, quotations, commentary, parody, public speeches, and news reporting. Limitations to copyright are also in place to benefit educational institutions, libraries, and protected groups, such as disabled persons.

245 The fundamental protections for works and the exceptions in the public interest are not the subject of the proposed treaty. Instead, the treaty focuses on the development of a ‘neighboring right’ that extends protection of the broadcast/cablecast signal, as distinct from the content of the signal. The complication, however, is that the signal embeds content and therefore has implications regarding public interest limitations and exceptions as regards fixation and post-fixation uses.

Broadcasting and the Public Interest

246 The case of broadcasting is complex because of a number of factors unique to the involvement of this industry in intellectual property issues. This report uses the narrow definition of broadcasting in the proposed treaty as “the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof”.⁷⁶ This definition applies irrespective of whether transmissions are by terrestrial or satellite means or whether or not they are encrypted. The proposed treaty distinguishes ‘broadcasting’ from ‘cablecasting’ with the sole difference being transmission by wire in the latter case. However, although the proposed treaty seeks to protect the signals disseminated by both broadcasters and cablecasters, it currently excludes original transmissions over computer networks (as distinct from retransmissions of broadcast/cable signals)—an exclusion under contention by some stakeholders.

247 Four characteristics are relevant to a discussion of public interests in access to the transmissions emitted by broadcasters and cablecasters: use of radio spectrum; business model; form of content provision; and content production.

248 The distinction made between transmission by wireless and by wires (both excluding computer networks in current treaty discussion) derives from the public character of the airwaves. Even with digital broadcasting, radio spectrum is nevertheless finite in character (and contested for use for many purposes other than broadcasting). This character has long been used as the rationale for public claims on the use of frequencies and has, accordingly, formed the basis of the imposition of licensing conditions in most countries. In contrast, cablecasting does not depend on a limited public resource, in the sense that wired infrastructure is not intrinsically limited (as is radio spectrum) and it is typically privately created. Consequently, it generally has fewer conditions placed upon its use than broadcasting via the airwaves.

249 The difference between free-to-air broadcasting and paid subscription broadcasting is an important element in considerations of public interest. Both business models can operate in the over-the-air broadcast environment, although the paid model is predominant within the cablecasting and satellitecasting arenas. The differential access to the public that is implicit in a free versus paid model has been another factor that historically shapes traditions that can impact on broadcasting. An example here has been that free-to-air broadcasters have often been required to observe “watershed” periods for distribution of particular content to which they have rights and their rights are therefore circumscribed. Another example is that countries with state-owned or public service broadcasters have generally adopted a universal service model designed to provide free-to-air transmission of a full range of content that is accessible by all citizens in the particular country. Citizens’ rights to access subscription broadcasting or cablecasting are generally subservient to their ability to pay. Public obligations imposed on subscription service providers to provide universal access to their signals are normally far lower than for public broadcasters and limited primarily to providing the potential for paid access as widely as possible.

250 The third distinction is whether a signal is streamed continuously or accessed on-demand. This dimension is often bundled with business model distinctions, in that on-demand is typically related to subscription services. The dimension also often correlates with point-to-multipoint transmission versus one-to-one transmission. One-to-one transmission constitutes a form of narrow-casting that is often bundled with on-demand and subscription services. While these coincidences are not intrinsic and exclusive, they have a bearing on the extent to which broadcasting and cablecasting signals are seen to attract policy intervention. On-demand narrow-casting is generally less subject to policy control than continuously streamed signals available to a mass audience (even a paying one). At their root, the issues relate to whether signals are pushed to or pulled by the audience.

251 Typically, there are distinctions between broadcasting and cablecasting as being distribution activities on the one hand and content production activities on the other. Although some organizations may well be engaged in both activities, the operations remain distinct—not only conceptually, but also often in actual practice. As noted earlier, many distributors purchase rights (in various forms) from external and separate content producers or other rights holders. In these cases, the sellers, for example, may conditionally cede or lease their rights for a single transmission in a single territory. If the producer’s work is commissioned by the distributor, however, it may impact the degree to which the producer may assert subsequent authorship rights.

252 The implications of all this have been recognized in the discussions around the proposed treaty, which acknowledge that distributors do not possess exclusive rights to everything they transmit.

253 In summing up the significance of these four points, the following can be stated:

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  Broadcasters transmitting on the public airwaves have long had to balance their business with public obligations and conditions, especially for educational and other public purposes.
  

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  Freely accessible transmissions (whether by broadcasters or by cablecasters) that are characterised primarily by ‘push’ signals to multipoint destinations have attracted greater public interest obligations, than have subscription, narrow-cast and on-demand services (in which the public has to proactively ‘pull’ the content down to them—and usually at a price).
  

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  Distribution rights are distinct from authorship rights. The distribution rights pertaining to the signal do not necessarily give rights to all ‘downstream’ activities relating to subsequent use of the signal.
  

254 Thus, there are reasonable bases for asserting some public interest and non-broadcaster interests as a balance to the protections of the signal in the proposed treaty.