OBSERVACIONES

This chapter is mostly legal-descriptive, which readers exclusively interested in Law and Economics analysis may wish to bypass.

[2]-1 INTRODUCTION

A major motivating factor for this research project is how much attention the topic of broadcasters’ rights attracts at the international level. As the debate on the rights of broadcasting organisations is a major component of international copyright law, a dissertation on the topic would therefore be very much incomplete without dedicating at least some part of the manuscript to outlining these events and issues.

This chapter therefore aims at providing an overview of the international legal instruments dealing with the rights of broadcasting organisations. In this regard, the focus is explicitly on international instruments – mainly those administered by the World Intellectual Property Organisation (WIPO) – a specialised United Nations agency, and main international forum for intellectual property policy. In particular, the focus will be on the debates regarding a new proposed WIPO Treaty on Protection of Broadcasting Organisations.

This chapter has two purposes. Firstly, it will establish an account of the relevant international legal provisions on broadcasters’ rights, which provides the basis for the analysis in subsequent chapters. Secondly, it provides the grounds for the claim that the issue of broadcasters’ is indeed a major international policy issue.

[2]-2 THE ROME CONVENTION

The natural starting point for any discussion on the intellectual property rights of broadcasting organisations is the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (‘Rome Convention’) of 1961.

The Rome Convention can perhaps be seen as the second major international treaty in the field of Copyright and Related Rights; the first is of course the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), originally adopted in 1886.⁴⁴

For the purposes of the analysis in this manuscript, this is the international legal instrument that first coordinated the concept of related rights. The Convention provides for three categories of rights and beneficiaries: (i) the rights of

44 For completeness, it is however noted that between the dates of the Berne and Rome Conventions, the Universal Copyright Convention (UCC) was developed and adopted in 1952. The UCC was largely framed as an alternative to the Berne Convention, and has generally lost its significance, except as a note in the history of international intellectual property law.

performers, (ii) the rights of phonogram producers, and (iii) the rights of broadcasting organisations.

Article 1 sets out that the rights provided for in no way affect copyright. This is in important feature, as it underscores the idea of the ‘dichotomy of copyrights and related rights’, mentioned in Chapter 1. Article 2 then sets out the principle of National Treatment (a standard feature of modern multilateral treaties).

Article 3(f) defines ‘broadcasting’ as “the transmission by wireless means for public reception of sounds or of images and sounds”. There are few things worth noting about this definition. Firstly, it is limited to ‘wireless’ broadcasting, and hence is centred on traditional terrestrial transmission technology.⁴⁵ Secondly, it is limited to signals intended for ‘public reception’, so that it excludes closed network point-to-point communications. Lastly, the reference to ‘sounds’ or ‘images and sounds’⁴⁶ explicitly includes both radio and television services; for completeness it is noted that the question of copyright protection is irrelevant to the notion of

‘sounds or images and sounds’.

Article 3(g) then defines ‘rebroadcasting’ as the “simultaneous broadcasting by one broadcasting organisation of the broadcast of another broadcasting organisation.”

The Convention therefore limits the scope of rebroadcasting (retransmission) to simultaneous retransmission. However, this does not mean that non-simultaneous retransmissions are excluded, as in order to undertake a deferred retransmission, the broadcast would first have to be fixed (recorded), which is covered under a separate element of the broadcasters’ rights.⁴⁷ Article 6 then defines the basis on which to determine the point of attachment for a broadcasting organisation, for the purpose of national treatment.

For the purposes of this manuscript, the most important Article of the Convention is Article 13, which sets out the minimum rights for broadcasting organisations, and states as follows:

Broadcasting organisations shall enjoy the right to authorize or prohibit:

(a) the rebroadcasting of their broadcasts;

(b) the fixation of their broadcasts;

(c) the reproduction:

(i) of fixations, made without their consent, of their broadcasts;

(ii) of fixations, made in accordance with the provisions of Article 15, of their broadcasts, if the reproduction is made for purposes different from those referred to in those provisions;

45 Accounts suggest that some proposals for the Rome Convention did indeed also extend to wired broadcasting. However, this was possibly excluded due to the fact that too strong protection might reduce the number of participants who wish to adopt the treaty. (Ogawa, 2007, pg 42).

46 ‘Images and sounds’ has come to be understood as including ‘images only’ (e.g. silent films).

47 This is confirmed by WIPO (1981) comment 3.19.

(d) the communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee; it shall be a matter for the domestic law of the State where protection of this right is claimed to determine the conditions under which it may be exercised.

Article 14 then stipulates that the minimum duration of protection is twenty years from the initial broadcast.

Of importance to note, Article 15 provides for certain possible limitations and exceptions. Article 15(1) lists possible exemptions as private use, reporting on current events, ephemeral fixation⁴⁸, and use for teaching and scientific research.

These permitted uses bear broad resemblance to the limitations and exception for copyright set out in Articles 10, 10bis, and 11bis of the Berne Convention.

However, Article 15(2) provides more broadly for limitations and exemptions to related rights that are in line with the same limitations, and exemptions provided for copyright. Furthermore, it should be noted that Article 16(1)(b) allows for a reservation in applying Article 13(d) (on public communications of television broadcasts).

Therefore, under the Rome Convention, the rights of the broadcasting organisation can be described as a ‘bundle of rights’ (in the same sense that copyright is a bundle of rights), with the following constituent elements: (i) a wireless retransmission right, (ii) a fixation right⁴⁹, (iii) a reproduction right, and (iv) a possible (but limited) public communication right. These rights last for twenty years, and are generally subject to the same limitations as copyright.

As a final point – which is important for historical context on the issue – the Rome Convention currently has 93 Contracting Parties.⁵⁰ In discussions on intellectual property treaties, there is a perception that the Rome Convention does not have very widespread acceptance.⁵¹ For contrast, the Berne Convention has 176 Contracting Parties.⁵²

48 In the process of broadcast transmission, a transient temporary reproduction of the content being broadcast is often made for technical purposes. This is the concept of ‘ephemeral fixation’.

Without an exception to copyright and related rights for such activities, broadcasting organizations would need to obtain permission from rightsholders for reproduction, even though such reproduction is only a mere technicality and pursuant only to the ultimate act of communication to the public.

49 While it is agreed that fixation applies to the embodiment of only a part of a broadcast, there is no similarly agreed position as to whether a single photograph falls within the scope of a protected fixation requiring authorization (WIPO SCCR/8/INF/1, paragraph 27).

50 WIPO-Administered Treaties Online Portal – Rome Convention (www.wipo.int/treaties/en/ip/rome/)

51 Interestingly, all OECD Members with the exception of New Zealand and the United States of America are Contracting Parties to the Rome Convention. This suggests that the Convention has greater acceptance in the industrialised world than in the developing world.

52 WIPO-Administered Treaties Online Portal – Berne Convention (www.wipo.int/treaties/en/ip/berne/)

[2]-3 OTHER INTERNATIONAL INSTRUMENTS

With respect the rights of broadcasting organisations, there are two international legal instruments that are relevant – the Brussels Satellite Convention, and the TRIPs Agreement.

[2]-3.1 Brussels Satellite Convention

The Convention Relating to the Distribution of Programme–Carrying Signals Transmitted by Satellite (Brussels Satellite Convention) was established in 1974.

The need for such an instrument appears to have been driven by the fact that the Rome Convention seemed inadequate at the time; the Rome Convention neither covered satellite transmissions (which were not an issue when it was negotiated in 1961), nor did it have widespread acceptance⁵³.

The core of the Brussels Convention is Article 2(1), which states that “Each Contracting State undertakes to take adequate measures to prevent the distribution on or from its territory of any programme–carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended…”

Furthermore, Article 2(3) states that these protective measures “…shall not apply to the distribution of derived signals taken from signals which have already been distributed by a distributor for whom the emitted signals were intended.”

Additionally, Article 3 states that the Convention “…shall not apply where the signals emitted by or on behalf of the originating organization are intended for reception from the satellite by the general public.”

The cumulative effect of Article 2(1) and the limitations of Articles 2(3) and 3 creates a very specific scope for protection. To understand this scope, it is useful to first make some technical definitions. For the purpose of this discussion, a satellite can provide either a ‘fixed-satellite service’ (FSS)⁵⁴, or a ‘direct-to-home broadcasting service’ (DBS)⁵⁵. FSS is where a satellite serves as an intermediate relay between two fixed terrestrial stations, such as where a broadcaster uplinks

53 A review of the Contracting Parties to the Rome Convention shows that as of the end of 1974 (the year in which the Brussels Convention was accepted), the Rome Convention had only 14 Contracting Parties, even though 26 states were signatories.

54 Article 1.21 of the International Telecommunications Union (ITU) Radio Regulations defines

‘fixed-satellite service’ as “a radiocommunication service between earth stations at given positions, when one or more satellites are used; the given position may be a specified fixed point or any fixed point within specified areas; in some cases this service includes satellite-to-satellite links, which may also be operated in the inter-satellite service; the fixed-satellite service may also include feeder links for other space radiocommunication services”

55 Under the ITU’s Radio Regulations, the technical regulatory name for such services is

‘broadcasting-satellite service’. Article 1.39 of the Regulations defines this as “A radiocommunication service in which signals transmitted or retransmitted by space stations are intended for direct reception by the general public. That article further notes, “In the broadcasting-satellite service, the term ‘direct reception’ shall encompass both individual reception and community reception.”

a signal to a satellite in order for that signal to be relayed to another fixed service provider (distributor) in distant location, who then (re)transmits the signal of the uplinking broadcaster. DBS services however are where a satellite broadcasts directly to the final consumer audience, and are explicitly excluded by Article 3 of the Convention.

While the Convention is designed to cover FSS services, it only covers the aspect of the communication chain concerning the satellite as an intermediary relay.

Once the signal is received by the indented distributor, the Convention does not cover the further distribution of the signal. In the terminology of the Convention, protection is accorded to ‘emitted signal’ and not the ‘derived signal’. Protection is therefore focussed on the uplink and downlink segments of the communication chain, rather than the redistribution segment. Annex 1 provides an illustrative summary on of these various distribution scenarios.

The scope of the Convention as described above gives the Brussels Convention a very technical flavour that the Rome Convention does not have. However, comparing the two legal instruments gives rise to one very obvious and significant difference – unlike the Rome Convention, the Brussels Convention does not stipulate the nature of the protection to be granted.

While protection can be granted through private property rights, it can also take the form of provisions relating to telecommunications regulation (or even some other body of law); the point is that the form of protection is in the discretion of the implementing state. Therefore, unlike the Rome Convention which is explicitly an intellectual property agreement, the Brussels Convention is actually an instrument of public international law.

Interestingly there are accounts that an early draft of the convention did provide a private right (similar to copyright or related rights) for broadcasting organisations. However, this concept was opposed by authors (copyright owners) and performers, and thus the final proposal took a very different form.⁵⁶ If this claim is indeed true, this provides a precedent for the perception of other rightsholders that intellectual property rights for broadcasters might encroach on their interests.

This model of a discretionary mechanism of protection seems consistent with the fact that the scope of the signals under the Brussels Convention are not limited to those which are intended for public reception. Under the Rome Convention, the definition of broadcasting explicitly excludes closed network or point-to-point communication (as transmissions must be intended for public reception). In contrast, the programme-carrying signals under the Brussels Convention do not need to be intended for public reception, and hence covers a wider range of possible transmissions. Therefore, the Brussels Convention can be seen as having some relevance to broader telecommunications law, and can be used as a basis for prevention of unauthorised interception of more general radiocommunication services.

56 Ogawa (2007), pg. 48

As a final note, the Brussels Convention falls quite short of creating an international framework for protecting broadcast transmissions, as it has even less wide acceptance than the Rome Convention. The Brussels Convention has 37 Contracting Parties⁵⁷, compared to 93 for the Rome Convention.⁵⁸

[2]-3.2 TRIPs Agreement

Perhaps the most significant international legal instrument on intellectual property is the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement)⁵⁹.

The relevant provision of the TRIPs Agreement that addresses the rights of broadcasting organisations is Article 14(3), which states as follows:

“Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).”

Ostensible comparison of TRIPS Article 14(3) and Rome Convention Article 15 suggest that the two are very similar in scope. They both provide for a fixation right, a reproduction of fixations right, a wireless retransmission right, and a limited public communication right. Furthermore, like the Rome Convention, TRIPs Article 14(5) stipulates a minimum length of twenty years for such protection.

One difference however is that the public communication is stronger under TRIPs.

While both instruments limit this right to television broadcasts, TRIPs does not limit the right only to communications in ‘places accessible to the public against payment of an entrance fee’ (as is the case under Rome Article 13(d)).

Furthermore, this right is mandatory under TRIPs, unlike the Rome Convention where a reservation to its application is possible.

Aside from this superficial similarity in scope, TRIPs Article 14(3) is very interesting for its second sentence which states that “Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in

57 WIPO-Administered Treaties Online Portal – Brussels Convention (www.wipo.int/treaties/en/ip/brussels/)

58 An interesting observation is that the United States is a Contracting Party to the Brussels Convention, but not to the Rome Convention.

59 The Agreement on the Trade-Related Aspects of Intellectual Property Rights is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization

the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention.”

This suggests that Member States have a choice between granting specific rights to broadcasting organizations, or covering the relevant acts under the provisions of the Berne Convention. However, irrespective of this choice, WTO Member States are in any case bound by TRIPs Article 6, which requires compliance with Articles 1 through 21 of the Berne Convention – the substantive legal provisions on copyright – with the notable exclusion of Berne Article 6bis (which provides for certain ‘moral rights’ independent of ‘economic rights’). Compliance with TRIPs would hence imply compliance with the Berne Convention, and that the copyright holders of literary and artistic works contained in broadcasts have the protection required by the second sentence of TRIPs Article 14(3).⁶⁰

In terms of this second sentence of TRIPs Article 14(3), the curious use of the phrase “provide …the possibility of preventing…” warrants some attention. Insight into the significance of this phrasing can be gained by returning to the Rome Convention.

Articles 10 and 13 of the Rome Convention provide property rights to phonogram producers and broadcasting organisations respectively. Property rights arise because of the fact that those articles take the structure of “(beneficiary) shall enjoy the right to authorize or prohibit (certain act(s))”. Article 7 on performer’s rights however takes a different structure, and reads “The protection provided for performers by this Convention shall include the possibility of preventing…”. The WIPO Guide to the Rome Convention gives comments on the significance of this language, and explains that:

“The reason for the wording in this paragraph is to leave complete freedom of choice as to the means used to implement the Convention, and to choose those which member countries think most appropriate and best. They may be based on any one or more of a number of legal theories: law of employment, of personality, of unfair competition or unjust enrichment, etc. - and of course, if they wish, an exclusive right.

The important thing is that those means achieve the purpose of this Article, namely that the performer has the possibility of preventing the acts enumerated.”⁶¹

Returning to the protection of broadcasts under TRIPs Article 14(3), it would appear a choice of legal approach (akin to that for implementing Rome Convention Article 7) does not exist. The choice is only between (i) an exclusive right for broadcasters, and (ii) deference to the Berne Convention, which in itself provides

60 Commenting on the second sentence of TRIPS Article 14(3), WIPO (1996) gives a possible explanation for the significance of the language used. It states: “The purpose and meaning of this provision is obviously not a mere repetition of that clear obligation. It rather seems to refer to the well-known differences between the national laws in respect of the actual coverage of the concept of works, and seems to state that only those Members may deny specific rights to broadcasting organizations in the copyright laws of which the concept of works is sufficiently broad to grant efficient protection to broadcasting organizations in respect of their broadcast programs” – WIPO (1996), paragraph 67

61 WIPO (1981), comment 7.4

for only one possible solution – an exclusive right for authors of literary and artistic works – which is already mandatory under TRIPs Article 6.

Given the construction and language of Article 14(3), it is clear that the TRIPs Agreement really does not go beyond the Berne Convention, and actually falls short of the Rome Convention in terms of a mandate for rights of broadcasting organisations. In fact, the Article even seems to create a false sense of policy-flexibility on this issue.

Despite the fact that it does not necessarily provide for broadcasters’ rights, the

Despite the fact that it does not necessarily provide for broadcasters’ rights, the