Digital Rights Network

Manon Ress writes to the a2k list: In their answer to TACD re broadcasting treaty, the EC explains that the proposed treaty cannot depart from a previous treaty (Rome). This despite the fact that the US and many other countries have never signed!. Protection can only go up. Exceptions can only be narrow and optional.

QUOTE:
To that extent, the EU cannot agree with the TACD demands since it would not reflect the current level of protection that is already accorded to broadcasters in the Community copyright acquis and would have the effect of diluting that protection. Nor would it be feasible within the context of international negotiations for a new treaty updating the rights of broadcasting organisations in the intellectual property context under the auspices of the World Intellectual Property Organisations to depart from the substantive norms of previous treaties [i.e. protection cannot go down]. This is what the Brazilian and Argentinean proposals envisage, namely the provision of mandatory rights for users. This would be contrary to all previous relevant Treaties in this area. The traditional approach in this area and the one which reflects EU law as well is to introduce optional exceptions for certain users such as the disabled or for teaching and research purposes. [emphasis added]
END OF QUOTE

Further Info

TACD resolution on the broadcasting treaty: http://www.tacd.org/docs/?id=276

Full Response From European Commission Services

WIPO has been working on updating the intellectual property8 rights of broadcasting organisations since 2001. The rights of other major rightsholders namely authors and holders of other related rights .i.e. record producers and performers were updated in 1996 with the adoption of the so called WIPO Internet Treaties namely the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Broadcasting organisations are the only group whose rights, at international level, are still governed by a Treaty concluded in
1961. i.e. the Rome Convention of 1961 on the rights of broadcasting organisations. The Commission has consulted Member States on the nature and scope of a possible instrument and the likelihood of success of a Diplomatic Conference. Without exception, Member States have indicated that they are committed to the process within WIPO in the light of their commitments to the United Nations and the international multilateral treaty-making process. Otherwise, the risk is that the international multilateral process will be replaced by bilateral agreements which would not necessarily be of assistance to all Contracting Parties to WIPO, including those associated with the Development Agenda. To a certain extent, Member States are prepared to show flexibility in relation to the scope of an instrument in order to achieve an agreement. However, any such flexibility will have to be consistent with international norms in this area.

The aim of these negotiations is to update the Rome Convention. The starting point is, of course, the fact that broadcasting organisations already enjoy protection as holders of “related rights”. In other jurisdictions broadcasters hold “copyrights”. Therefore, a treaty based only on signal protection would be a departure from the family of intellectual property treaties and it would be considered a treaty of a sui generis nature which may not sit happily with the legal traditions of the majority of Contracting Parties. In addition, this would not reflect the legal tradition of any of our Member States. The current texts on the table abide by the established intellectual property treaties including the Berne Convention, as amended by the Paris Act 1971 and in particular the 1996 WCT9 and WPPT10 which updated copyright for the digital environment but which did not deal with the rights of broadcasting organisations. The 1996 WIPO Treaties introduced at international level, protection for TPM11 for holders of copyright and related rights. Directive 2001/29 on the harmonization of copyright and related rights in the Information Society transposes these obligations at Community level but also includes broadcasting organisations within its scope. The current draft texts are consistent with the approach of the 1996 WIPO Treaties in extending protection of TPMs to broadcasting organisations.

To that end, the position of the European Community and its Member States is reflected in the treaty language proposal submitted to WIPO in 2001, as amended by a further submission in 2003. These submissions reflect the high level of protection that broadcasting organisations enjoy within the EU as holders of related rights. To that extent, the EU cannot agree with the TACD demands since it would not reflect the current level of protection that is already accorded to broadcasters in the Community copyright acquis and would have the effect of diluting that protection. Nor would it be feasible within the context of international negotiations for a new treaty updating the rights of broadcasting organisations in the intellectual property context under the auspices of the World Intellectual Property Organisations to depart from the substantive norms of previous treaties. This is what the Brazilian and Argentinean proposals envisage, namely the provision of mandatory rights for users. This would be contrary to all previous relevant Treaties in this area. The traditional approach in this area and the one which reflects EU law as well is to introduce optional exceptions for certain users such as the disabled or for teaching and research purposes.

During the 14th Standing Committee on Copyright and Related Rights (SCCR) in May 2006 in Geneva, the European Communities and its Member States submitted a formal proposal further elaborating on its suggested approach with respect to “limitations and exceptions” to the proposed broadcasters’ rights. These proposals were very well received by the SCCR and were especially useful in bridging some of the major gaps that existed between developing and developed countries. The SCCR agreed to hold another session of the SCCR prior to the WIPO General Assembly in September 2006 that dealt with traditional broadcasters' rights only.

8 Copyright and related rights are the relevant intellectual property rights. Authors i.e. creators hold copyright whereas other groups of rightholders are described in the relevant international conventions as being holders of related rights i.e. rights related to copyright. The related rightholders are record producers that hold rights in sound recordings; performers in their performances and broadcasting organisations in their broadcasts. The term of copyright is longer (70 years after death of the author) than the term of related rights (50 years after fixation).

9 WIPO Copyright Treaty

10 WIPO Performances and Phonograms Treaty

11 Technological Protection Measures