Introduction
Broadcast, according to the Copyright Act of 1957, is “any mode of wireless distribution, which may be in one or more forms of signs, sounds, or visual pictures; and by wire, which includes re-broadcast.” The Rome Convention contains no precise definition of a broadcasting organisation. These are the organisations that provide broadcasting services to the general public over Hertzian (wireless) waves, according to a widely accepted definition. These businesses are established to manage television or radio stations. One of the primary goals of broadcasting is to make the general population more responsive to radio and television signals transmitted electronically. On a big scale, this is enabled by organisations. The WIPO’s Standing Committee on Copyright and Related Rights has spent a lot of time discussing how to update the international protection of broadcasting organisations (SCCR). In response to digital and other new technologies, as well as the rising usage of the Internet, the issue at hand is to update the protection of broadcasting companies, who are holders of relevant rights.
Background of the broadcasting organization
The 1961 Rome pact, drafted at a time when cable was in its infancy and the Internet was yet to be invented, has not been amended to safeguard television transmissions from piracy. Signal theft has become a major business concern for broadcasting organisations around the world now that flawless digital copies of television programmes can be generated and transmitted with a few mouse clicks.
Signal piracy can take physical or virtual forms, such as illicit broadcast recordings on video tapes, DVDs, or USB sticks, or it might take the form of unauthorised signal redistribution over the air or online. Another frequent kind of piracy is hacking into encrypted pay-TV signals with equipment designed to bypass security measures in set-top boxes, with live sports broadcasts being a particular target for unauthorised retransmission on the Internet. Broadcasters, notably those in developing nations, allege that signal piracy of any kind costs them millions of dollars in lost pay-TV subscribers and/or advertising income, influencing investment decisions and competitiveness.
Broadcasters began to urge for updated protection for new broadcasting technologies after WIPO members agreed to the so-called WIPO Internet treaties on copyright and performers and producers of phonograms (sound recordings) in 1996.
However, while there is general agreement in principle that broadcasters should have updated international protection against signal theft, WIPO members have yet to agree on how this should be done and what additional rights, if any, should be granted to broadcasters. The General Assembly of the World Intellectual Property Organization (WIPO) agreed in 2007 to use a “signal-based approach” to developing a new treaty in order to ensure that rules on signal theft did not give broadcasters greater rights over programme content. However, many of the underlying viewpoint conflicts remained.
WIPO’s Standing Committee on Copyright and Related Rights, which is in charge of the broadcasting discussions, decided in 2011 on a work plan to develop a new draught treaty that would be acceptable to all or most WIPO members.
The following are some of the major concerns:
- What should be protected?
- What safeguards should be in place for broadcast signals?
- What further privileges should broadcasters be granted?
What should be protected?
Broadcasters clearly want protection for all means of signal transmission (“technology neutral” protection, in the jargon), which would include new technologies such as digital programme recording devices, on-demand video services, and IPTV (“Internet protocol TV” or Internet TV), which can transmit programmes to computers and mobile phones as well as televisions. Some countries and civil society organisations, on the other hand, are leery of limits on Internet communications. WIPO members resolved in 2006 to set the subject of webcasting aside for further debate on a different and later track (broadcasting over the Internet or video content intended for Internet streaming). However, there are fears that safeguarding broadcasters’ Internet transmissions could pre-empt these debates by providing some protection to webcasters as well.
What safeguards should be in place for broadcast signals?
Broadcasters want the proposed pact to include restrictions similar to those found in WIPO Internet treaties, which make it illegal to overcome anti-piracy “locks” on digital signals like encryption and “tagging.” Critics claim that by limiting what can be viewed on what equipment, these laws may prevent perfectly legitimate uses of television broadcasts, such as recording programmes for personal or educational purposes, as well as technical progress.
What further privileges should broadcasters be granted?
Broadcasters have exclusive rights for 20 years under the Rome Convention to enable rebroadcasting, “fixation” (recording), replication, and public communication of their broadcasts. The majority of broadcasters want the new treaty to extend and modernise those rights to account for new technology, particularly to prevent unauthorised rebroadcast of their programmes over the Internet. Although several countries (including the European Union’s 27 members) have applicable domestic legislation, it offers no protection against overseas piracy. It is entirely lawful in many parts of the world to retransmit a broadcast over the Internet without permission.
Broadcasters do not require sufficient near-copyright protection for their broadcasts in addition to protection from signal theft, according to civil society opponents and a number of governments. They point out that the Rome Convention has not been ratified by half of WIPO’s members. Giving broadcasters a slew of exclusive rights, critics argue, would stifle access to copyrighted content by needing authorization not only from the copyright owner (such as a TV show or documentary producer), but also from the broadcaster. By giving broadcasters the freedom to define the circumstances (and charge a licence fee) under which a work can be used, this could erode copyright owners’ rights. Similarly, there are fears that providing broadcasters exclusive rights over their broadcasts could “privatise” public domain material, such as films that are not copyrighted or sporting or journalistic events that are not copyrighted (because they are not creative works).
Supporters of extending worldwide rights to broadcasters argue that the situation regarding underlying content will remain unchanged because others will always be able to broadcast or transmit their own (approved) versions of the same content. While the transmission of a performance containing Beethoven’s Fifth Symphony would be protected, the symphony itself would be available for anybody to play, record, or broadcast. Broadcasters, on the other hand, believe that they must preserve the broadcast itself, which may entail major infrastructure expenditure as well as the purchase of broadcasting rights.
A related but separate issue is the purchase of exclusive rights to broadcast sporting and other events, which is beyond the scope of the proposed treaty but has implications for how its provisions might be implemented. This is because, if no other source is available, rights to the broadcast may also restrict access to the underlying content. Certain events (for example, the Football Association Cup Final and the Wimbledon Tennis Final in the United Kingdom) are judged of sufficient national importance to guarantee coverage by free-to-air broadcasters in a number of countries, including the European Union, India, and Australia.
What kinds of restrictions and exclusions should be in place?
The Rome Convention permits the unrestricted use of transmissions in news broadcasts, education, and scientific research. Members of the WIPO believe that the proposed treaty should allow for some “limitations and exceptions” to the requirement to seek licence for the use of transmissions, similar to those that exist in some countries for copyright protection (such as personal use, use for parody and library use). They disagree, however, on whether the treaty should establish a general rule for individual countries to employ in deciding on limitations or exceptions, or if it should specify specific uses that are binding on all members. As previously stated, some claim that the treaty’s exclusions and limitations may be negated by technological “anti-circumvention” safeguards.
When it comes to protection, how long should it last?
Some countries desire 50-year protection, which is already granted to sound recording performers and producers (and broadcasters in the European Union). Others have argued for a maximum duration of 20 years (as in the Rome Convention and the WTO’s Agreement on Trade-Related Aspects of Intellectual Property). Concerns that each rebroadcast would start a fresh term of protection, resulting in everlasting protection, appear to be baseless, as rights to the first broadcast would expire at the end of the term regardless of any rebroadcast.
Conclusion
In India, the rights granted to broadcasting organisations are just in accordance with international treaties and conventions that call for an exclusive rights-based approach. In this sense, Indian law has been particularly patterned on the ideas put down by the Rome Convention 1961 and the TRIPs Agreement 1994, right from modifications in 1999 to 2012. Even whether the programmes are in the public domain, Creative Commons licenced, or not copyrightable, this newly written treaty provides broadcasters (not authors or copyright holders) the ability to tie up the use of audio-visual material for 50 years after broadcasting it. To take a liberal approach to access to information in developing nations like India, and that a signal-based strategy is the proper one, campaigners supporting access to knowledge have been pressing harder for a signal-based protection of broadcasting organisations. The scope of broadcasting information rights has a significant impact on freedom of speech and expression. As a result, it is critical to evaluate the scope of broadcasting rights by examining their influence on freedom of expression. Although it is argued that inbuilt exceptions such as compulsory licencing and the fair use doctrine keep the balance between freedom of expression and exclusive intellectual property rights, basic human rights such as freedom of expression should be invoked to determine the scope of intellectual property rights and their exceptions, paving the way for constitutionalisation of intellectual property rights.
