TechLaw

In two weeks, WIPO’s Standing Committee on Copyright and Related Rights will convene in Geneva to try to finalize the text to the proposed WIPO Broadcasting Treaty.

Webcasting is now off the menu. Many delegates lost their appetite for the contentious issue, concerned that the sideline topic threatened progress in more important areas, such as signal theft.

But as the SCCR’s chairman’s December 15 report illustrates, untangling webcasting from the treaty may not be a straightforward matter.

The definition of “retransmission,” a protected right under the proposed treaty, encompasses “any means of transmission.” Elsewhere in the text, the right of retransmission is said to include “over computer networks.” Further, the text refers to the right of reproduction as including “direct or indirect reproduction in any manner or form,” a phrasing that the delegation from India argued would likely be interpreted to include computer networks.

According to the report, the chairman took the view that while the draft treaty no longer embraced a new right protecting webcasts, the proposed treaty would, ems.bna.comtheless, empower broadcasters to prevent unauthorized webcasts of their transmissions.

“[T]here were several areas where acts and operations taking place by using computer networks were included as the defensive part of the traditional broadcasters’ rights, not as objects for protection. In those areas the traditional broadcasters should enjoy the possibility of authorizing or not authorizing certain exploitation or use of the protected subject matter. That did not make webcasting an object of protection.”

For example, the chairman explained in his report, a broadcaster in one country should have the authority to prevent a webcaster in an adjoining country from webcasting the signal to areas of the adjoining country that fall outside the broadcaster’s footprint.

“That would not bring that retransmission over the web within the scope of protection,” said the chairman. “[B]ut would place the retransmission over the web as a defensive element in the operative clauses on the protection of traditional broadcasters.”

Given the aim of the treaty to protect against signal theft, this perspective is certainly understandable. Yet, the difference between protecting webcasts themselves and preventing others from making unauthorized webcasts seems a rather fine point. The policy concerns that attend the granting of protections to webcasts seem no less relevant to the defensive use of the webcasting right than to its use offensively.