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India and the Proposed Treaty for the Protection of Broadcasting Organisations

Seemantani Sharma (ssharma2@law.gwu.edu) is the Legal and Intellectual Property Services Officer of the Asia-Pacific Broadcasting Union, Malaysia.

This paper analyses key provisions of the Proposed Treaty for the Protection of Broadcasting Organisations, considered at the Standing Committee on Copyright and Related Rights’ 33rd Session. The key question is whether (and on what terms) India needs the Broadcasters Treaty. Existing digital divides make traditional broadcasting the primary means of mass communication in India. Rampant signal piracy hampers the programming output of traditional broadcasters. As India progresses in its unrelenting pursuit of becoming an information society, it cannot afford its traditional broadcasters withering.

A robust broadcasting industry is the linchpin of every democratic society. Although constitutionally broad-casting (electronic media) is not part of the fourth estate, its importance is best described by veteran British statesman, Tony Benn: “Broadcasting is really too important to be left to the broadcasters” (Telegraph 2014). In recognition of the immense importance of broadcasting, the World Intellectual Property Organization (WIPO) convened a symposium in Manila in 1997 to discuss the rights of broadcasters over their signals. The symposium led to a consensus that the existing international regime was inadequate to combat signal piracy in the broadcasting industry. The revenues of traditional broadcasters were dwindling due to piracy, which severely impaired their function as public service organisations that procured and consequently disseminated quality content. While the delegations agreed to revise the existing international regime to protect the rights of broadcasters, there was no consensus on the work plan. The Manila Symposium was followed by another symposium held by Latin American and Caribbean countries in Cancun, Mexico, in 1998.

These two symposia ultimately led to the establishment of the Standing Committee on Copyright and Related Rights (SCCRs), a committee mandated to examine harmonisation of laws relating to copyright and related rights. At the first meeting of the SCCR, with the notable exception of India, there was substantial consensus amongst the delegations in favour of updating the rights of broadcasters. Since then, broadcasters have been battling it out at least biannually in Geneva for an international treaty that protects their signals against piracy—the Broadcasters Treaty. However, after nearly 19 years, the treaty is yet to see the light of day due to a political stalemate on key provisions. Within the precincts of the WIPO, no other intellectual property (IP) treaty has witnessed such protracted negotiations as the Broadcasters Treaty.

Indian broadcasters have been facing the brunt due to the lacunae in the existing international and national legal regime.1 During the 2007 WIPO General Assembly, the delegation from India expressed that it had already lost $668 million due to signal piracy (WIPO 2007: 56). This contrasts the statement made by the Indian delegation at the 19th Session of the Intergovernmental Committee of the Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasters (the Intergovernmental Committee), where they stated that there was lack of evidence of widespread unauthorised use of broadcast signals (UNESCO 2005: 9). Although there is no recent empirical study that quantifies the losses of the Indian broadcasting industry, a 2011 study conducted by the The Cable and Satellite Broadcasting Association of Asia (CASBAA) affixes it at $1.4 billion for that year, which represents 64% of the total cost of piracy in the Asia–Pacific region (WIPO 2012a: 98). This makes India the country with the highest piracy rate in the region. In this context, the Broadcasters Treaty becomes relevant to India.

This paper analyses the key provisions of the draft text of the Broadcasters Treaty, which were deliberated at the 33rd session of the SCCR. The focus of the paper is twofold; first, it aims to examine the key provisions of the treaty with regard to the state of technology in the Indian broadcasting industry and the Indian Copyright Act, 1957. Second, it intends to propose a road map for India for the next two SCCRs scheduled for November 2017 and May 2018. However, before delving into these two issues, it is worth examining the raison d’etre of the Broadcasters Treaty and its relevance for India. This is pertinent for dispelling concerns voiced by civil organisations, that no objective reason for the Broadcasters Treaty has been established.

Why Should India Sign the Broadcasters Treaty?

Opponents of the Broadcasters Treaty have noted that existing international instruments such as the Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organisations (the Rome Convention), the Brussels Convention Relating to the Distribution of Programme-carrying Signals Transmitted by Satellites (the Brussels Convention), and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) granted broadcasters sufficient protection against signal piracy. However, this opposition is misplaced.

The Rome Convention, the principal international legal instrument protecting the rights of broadcasters, dates back to 1961. Its antiquity makes it outmoded for the protection of broadcasters’ investment in the acquisition, production, scheduling, and transmission of signals. It was drafted when cable networks were in their inception, the use of satellites for transmitting signals was unknown, and the term “internet” was unheard of. Apart from technological limitations, due to its antiquity, the Rome Convention also has legal inadequacies. It only protects the simultaneous rebroadcasts of a broadcaster. This is because, at that time, recording equipment did not exist. However, with the advent of technology, pirates can easily record signals in the convenience of their homes and subsequently relay them over multiple platforms such as the internet, cable, and terrestrial television (TV). Moreover, only signatories to the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) and the Universal Copyright Convention (the UCC) can become signatories of the Rome Convention. The Berne Convention is the primary international agreement on copyright, protecting the rights of authors to their work; it is administered by the WIPO. The other primary international agreement on copyright is the UCC, which is administered by the UNESCO. India has been a signatory to both the conventions since 1928 and 1952, respectively. Given this, there is no legal impediment to India becoming a signatory to the Rome Convention. However, though India signed the Rome Convention in 1961, it never submitted its instrument of accession. In this situation, broadcasters in India are not assured of any protection of their foreign broadcasts. So, for instance, if the signals of an Indian broadcaster operating a satellite TV channel spills over to neighbouring countries, there is no recourse available in the existing international regime to prevent the signals from being retransmitted in the foreign territory. Even if India had acceded to the Rome Convention, there would be no legal redress to address this situation, as the Rome Convention does not protect the unauthorised cable retransmissions of a broadcaster. This becomes even more relevant when we consider that none of the countries in the Indian subcontinent are signatories to the Rome Convention.

One may argue that the content of Indian broadcasters are protected as cinematographic works under the copyright law of the countries in the Indian subcontinent (assuming that they are signatories to the Berne Convention). Even so, this protection is limited as, very often, broadcasters are not the content creators of satellite TV programmes. This is particularly true for private (commercial) broadcasters. Hence, it is only the broadcasters who are also the content creators who have the right to assert copyright protection over the content (programmes). This makes the need for a standalone international legal instrument that protects broadcasters’ signals imperative. Further, the Rome Convention does not protect pre-broadcast signals, an issue which is analysed in later sections of this paper. Last and most importantly, the Rome Convention has characteristically less international appeal, with only 92 contracting parties to the convention, out of 189 WIPO member states. Thus, there is practically no international harmonisation for the protection of broadcasters’ signals.

Indian broadcasters are operating in a world that knows no boundaries, and in such circumstances, relying solely on domestic law (which has its own limitations) for the protection of broadcast signals is an anathema. A broadcaster may employ geo-blocking techniques to prevent the spillover of the signal and its subsequent piracy. However, these techniques (including anti-piracy techniques) are expensive and potentially out of the reach of India’s public broadcaster, Prasar Bharati, while the investment required for pirating a signal remains as low as ₹2,000. The Government of India funds Prasar Bharati, although it is a statutory autonomous body (unlike the British Broadcasting Corporation [BBC], which is a publicly-funded public broadcaster). Prasar Bharati has faced budget cuts, and its very existence has been questioned due to its low penetration rate, which is closely related to the quality of its content. Thus, improving programming output would be a better utilisation of funds (which is essentially taxpayers’ money) rather than expending scarce resources on anti-piracy techniques. Not only will this facilitate dissemination of knowledge, but it will also be in line with its public service mandate.

Chronologically, the Brussels Convention is the second in the line of international instruments for the protection of broadcasters; it was enacted in 1974. The only intended beneficiaries under it are satellite broadcasters, making it an even more limited legal instrument for the protection of broadcasters against signal piracy. It does not grant broadcasters any rights whatsoever.2 From an Indian perspective, it is a redundant legal instrument since India is not a signatory to it. In fact, its international appeal is even lower than that of the Rome Convention, with only 37 contracting parties out of 189 WIPO member states. Most importantly, India’s public broadcaster (Doordarshan) is a terrestrial broadcaster, and hence not a beneficiary under the Brussels Convention.

The most recent instrument protecting the rights of broadcasters is TRIPS, which grants even less protection to broadcasters than the Rome Convention. Article 14.3 of TRIPS grants protection to broadcasters against the fixation, reproduction, and rebroadcast of their broadcasts. However, this provision is non-mandatory in nature; this means that member states have no obligation to grant rights to broadcasters, provided they protect the underlying content.3 During a meeting of the Intergovernmental Committee, the Indian delegate had questioned why an international instrument as recent and as comprehensive as TRIPS did not grant technologically forward-looking protection to broadcasters.4 At the Manila Symposium, the representative of European broadcasters acknowledged that this failure of TRIPS was “unfortunate.”5 While it is unknown whether World Trade Organization member states had pressed for heightened protection for broadcasters or not,6 legally this would have been impossible. This is because TRIPS, at its core, is a “minimum standards” treaty which was not intended to update any existing international intellectual property treaty. Therefore, even though TRIPS should have technically granted the same rights to broadcasting organisations as under the Rome Convention, it unfortunately granted even lesser protection than the Rome Convention to broadcasting organisations (legally known as a Rome-minus approach). If the Indian delegate’s statement is to be taken at face value, then the creative community should have been deprived of the WIPO Internet Treaties, which were adopted in 1996, just a year after the TRIPS agreement.

For a developing country like India, where the internet penetration rate stands at 34.8% as of 2016,7 traditional broadcasting holds immense importance in reaching out to the masses in remote areas bereft of internet access. The very survival of traditional Indian broadcasting is being challenged due to stiff competition from new players such as YouTube, Netflix, Google TV, and other over-the-top (OTT) services. This is because its revenue model is severely hampered by piracy, which directly impedes its ability to procure quality content, particularly rights to international sporting events. It is no secret that quality programming output is the harbinger of an informed society. Further, even the national exchequer stands to lose revenues due to signal piracy. Lastly, it may also have other unintended consequences such as enabling the financing of organised crimes—particularly terrorism, money laundering, and the violation of foreign exchange regulations. For all these reasons, an international instrument for protecting the rights of broadcasting organisations becomes important.

India and the Broadcasters Treaty: Broad Trends

Since the commencement of the Broadcasters Treaty deliberations, India’s participation at the SCCRs has been nothing short of robust. During the first SCCR, there was substantial consensus on the necessity for Broadcasters Treaty amongst the delegations, with the sole exception being the Asia–Pacific group (which represents India). Even in its national capacity, the Indian delegation had expressed due compliance with the Rome Convention and TRIPS, thereby implying that its domestic legislation was sufficient to tackle signal piracy. However, from the first SCCR in 1998 until the recently concluded 34th SCCR, India’s stance has progressively changed. The changes can be categorised into three distinct phases.

The first stage, or the stage of dissonance, spanned from the first SCCR in November 1998 until the 12th SCCR in November 2004. During this phase, India had an inconsistent position on the Broadcasters Treaty, and would change it from one SCCR to the next. India’s consistently neutral position on the Broadcasters Treaty took a sharp U-turn during the ninth and the 10th SCCRs, where it stated reservations over the need for a new legal instrument for combating signal piracy. By the 11th and 12th SCCRs, India had returned to square one. The period between the 13th SCCR in November 2005 until the 24th SCCR in July 2012, can be seen as the beginning of the second stage, or the stage of coherence. During this stage, India’s position fundamentally shifted from “neutral” to favouring a “pro-balanced” Broadcasters Treaty regime. It repeatedly acknowledged the need to protect broadcasters against signal piracy by strictly adhering to a “signals-based approach,” where only the signal of the broadcaster is protected and not the underlying content. Further, India vehemently opposed the inclusion of webcasting, simulcasting, and any form of transmissions over computer networks within the scope of the Broadcasters Treaty, on the grounds that it was against the mandate of the 2007 WIPO General Assembly. This has been explored further in the paper as a partial misinterpretation by India. By the 25th SCCR, India’s consistent opposition to protect transmissions over computer networks changed. This was the beginning of the third stage, or the stage of flexibility, which has continued until the recently concluded SCCR. During this stage, while sticking to its commitment to a “signals-based approach,” India has shown considerable flexibility in protecting the unauthorised live transmission of signals over computer networks, not extending to simulcasting and webcasting. The Indian delegation also emphasised upon the importance of putting in place limitations and exceptions to the Broadcasters Treaty for developing countries.

Draft Text of the Broadcasters Treaty

With the objective of streamlining the negotiation process, the chair drafted a consolidated text with definitions, object of protection, and rights to be granted (for the draft textof the 31st SCCR, see WIPO 2016a). Since then, the delegations have discussed revised versions of this text, rather than the complete text. The following discussion will critically examine the key provisions of the draft text and specifically analyse its commensurability with the state of technology of the Indian broadcasting industry and the Indian Copyright Act, 1957. Keeping these parameters in mind, wherever there are alternative provisions, what India’s preference should be has also been discussed.

Definitions

Broadcasting

As per the draft text, there are two alternative definitions of broadcasting (WIPO 2016a: Annexure 1, p 72). The first one (that is, Clause (c)(1) of Alternative A) is the traditional definition of broadcasting, which is the same as that given in the WIPO Performances and Phonograms Treaty (WPPT). This definition includes terrestrial and satellite broadcasting within its purview. Broadcasting via cable is covered under Clause (c)(2) of Alternative A. A combined reading of Clause (c)(1) and Clause (c)(2) of Alternative A, which is one definition, extends to all three conventional broadcasting platforms—that is, terrestrial, satellite, and cable. This definition is also inconsistent with the definition of “broadcast” under the Indian Copyright Act, 1957. Section 2 (dd) of the Indian Copyright Act defines a broadcast as “any communication to the public—(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or (ii) by wire, and includes a re-broadcast.” Thus, by employing the word “wire,” the Indian Copyright Act extends protection to cable-casters (organisations that transmit signals via cable). In this vein, considering the prevalence of these three broadcast technologies in India,8 Alternative A should be India’s preferred definition. Otherwise, as stated by one of the delegations during an informal session at the 33rd SCCR, India may consider conceding to a comprehensive definition of broadcasting. As per the textual proposal,

broadcasting means the transmission of a programme-carrying signal by wire or wireless means for reception by the public; such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasters or with its consent. [Transmissions over computer networks shall not constitute “broadcasting.”] This definition would preclude the need for a separate definition of “cablecasting.” (WIPO 2016a: 2)

Alternative B is a technologically neutral definition of broadcasting, which extends to all broadcast platforms, including the internet and mobile services. The phrase “any other means” (WIPO 2016a: 2) in the draft text is sweeping, with the potential to include mere webcasting within its purview. Webcasting is the broadcasting of an event via the internet. The problem with granting protection to mere webcasters is that it can severely restrict the free flow of information on the internet. Anyone with a webcam can record a clip in the convenience of their home, upload it to a personal blog, and claim protection over it. For this reason, many developing countries (including India) have opposed the inclusion of webcasters from the Broadcasters Treaty. However, this is not to say that no form of internet transmissions should be protected. Online transmissions, including simulcasting (which is the simultaneous transmission of signals over two or more platforms) by traditional broadcasters, should be afforded protection under the Broadcasters Treaty. Incidents of online signal piracy have been reported by traditional Indian broadcasters. Further, a few Indian broadcasters, such as Doordarshan and Zee TV (Ditto TV), apart from transmitting by conventional means, also have online transmissions. However, this does not make them webcasters. Hence, to distinguish between traditional broadcasters transmitting online streams and mere webcasters, India should propose an amendment to the bracketed text in Alternatives A and B. Bracketed text refers to text that is still under negotiation. It should propose the addition of the word “mere” to the starting of the bracketed text. Thus, the proposed amended bracketed text would read: “Mere transmissions over computer networks shall not constitute ‘broadcasting.’” This will also be consistent with the definition of broadcasting organisations, as per the draft text.

Retransmission

As per the draft text, there are two definitions of retransmission (WIPO 2016a: Annexure 2, p 72). Clause (e) of Alternative A has an expansive definition of retransmission, which protects simultaneous, near-simultaneous, or deferred transmissions. Protection against simultaneous retransmission protects a broadcaster when its signal is simultaneously transmitted (or transmitted in real-time) by any other entity without the authorisation of the original broadcaster. Protection against near-simultaneous retransmission protects a broadcaster when, due to a technical delay (which is usually just a fraction of a second), the live broadcast of an event is transmitted by any other entity without the authorisation of the original broadcaster. Due to the mass appeal of cricket in India, pirates often relay live matches online, grievously hampering broadcasters’ viewership rates. Thus, near-simultaneous retransmission rights are important for ensuring broadcasters’ continued investment in live sporting events.

Deferred (delayed) retransmission is when the broadcaster’s signal is transmitted without authorisation after it has been broadcasted by the original broadcaster. This is a violation of broadcasters’ post-fixation rights, that is, the protection of the signal after the audience has received it. Since the 13th SCCR, India has consistently opposed post-fixation rights on the grounds that it is against the mandate of the 2007 General Assembly, which extended only to the signal and not to the underlying content. Undoubtedly, the mandate of the 2007 General Assembly is restricted only to signals. However, as many delegations agree, granting post-fixation rights to broadcasters is imperative. Often, pirates place the recorded (fixed) broadcasts of TV shows, movies, and dramas on illegal platforms without seeking the consent of the broadcasters. This adversely impacts a broadcaster’s licensing revenue. Remarkably, India recognised this malaise way back in 1994 and amended the Indian Copyright Act, 1957, to grant a limited form of post-fixation rights to broadcasters. It is known as the “broadcast reproduction right.” Under Section 37 of the Indian Copyright Act, 1957, broadcasters have the right to control the use of their broadcast after it has been transmitted to the audience. Hence, to be in line with its domestic law, India should align with Alternative A, which recognises post-fixation rights.

Alternative B is a restrictive definition, which does not protect deferred transmissions of broadcasters; it also conflicts with Section 37 of the Indian Copyright Act, 1957. Thus, it should be ruled out.

Object of Protection

India’s firm commitment to a “signals-based approach” is clearly reflected in Clause (1) of the object of protection section of the draft text. The protection extends only to “programme carrying signals,” which means that only the signal (and not the underlying content) is protected under the Broadcasters Treaty. Further, webcasters have been kept outside its purview. Clause (2) of the draft text lucidly reaffirms that there shall be no protection extended to mere retransmissions.

The bone of contention between India and the other delegations is Clause (3) (WIPO 2016a: Annexure 3, p 72). Since Alternative A does not extend protection to deferred transmissions, it should not be India’s preference, for reasons stated in the above section.

Rights to Be Granted

The draft text extends protection to the actual broadcast and the pre-broadcast signals of the broadcasters. It comprises two alternatives for protecting actual broadcasts (WIPO 2016a: Annexure 4, p 72). Alternative A is an expansive right, which gives broadcasters the right to authorise and prohibit the retransmission of signals and the ability to make its signal available. The making available right is a form of post-fixation rights, which ensures that the fixed broadcasts of the broadcaster are not made available to the public without authorisation. With the advent of the internet and digital technologies, pirates can easily reproduce signals and make them available to users at a time and place chosen by them. The Indian Copyright Act, 1957, grants this protection to broadcasters under Section 37(3), which requires prior authorisation (in the form of a license) from the broadcaster to make the broadcast available to the public. To be in line with India’s domestic law, Alternative A should be its preference; at the 33rd SCCR, India did not state its preference.

Even with respect to the protection of pre-broadcast signals, there are two alternatives (WIPO 2016a: Annexure 5, p 72). Pre-broadcast signals are programme-carrying signals that are not intended for public reception. Without any advertisements, a trademark, or any other identifying graphics, a pre-broadcast signal is more susceptible to piracy than a broadcast signal. To date, the Indian Copyright Act, 1957, does not protect pre-broadcast signals. So, for instance, if an event organiser records classical music in a concert hall in Bhopal and transmits it to Doordarshan in Delhi, and during the course of transmission the signal is pirated, it will not be protected under the Indian Copyright Act, 1957. For this reason, delegations, including India, agree that pre-broadcast signal should be included within the scope of the Broadcasters Treaty.

Alternative B is vague and possibly expansive due to the phrase “adequate and effective protection” (WIPO 2016a: 5). This leaves room for broadcasters to assert a wide range of rights. For this reason, Alternative A should be India’s preference.

Road Map for the Upcoming SCCR

The Broadcasters Treaty is at a critical stage, due to two important international developments in the West: first, Brexit; second, the outcome of the United States (US) 2016 presidential elections, due to which the US delegation may fundamentally change its position, if the current head of its delegation is replaced. If no clear consensus emerges during the next two SCCRs (scheduled for November 2017 and May 2018), the Broadcasters Treaty is likely to meet the same fate as the Substantive Patent Law Treaty (SPLT). The SPLT was stalled in 2006 after six years of intensive negotiations, due to disagreements amongst delegations on its key provisions. Considerable time, energy, and resources have been spent on Broadcasters Treaty negotiations. To prevent the entire process from becoming a waste of time, India needs to urgently endorse the Broadcasters Treaty, even if just for the sake of harmonisation.9 India may consider adopting the same approach as it did with the Beijing Treaty on Audiovisual Performances (2012) and the WIPO Internet Treaties (1996)—India supported these treaties but did not ratify them. Consequently, India amended its copyright law to harmonise its laws as per the standards laid down by these conventions.

There are three aspects that India must consider in order to formulate its strategy for the 35th and 36th SCCR: (i) procedural aspects; (ii) outstanding issues; and (iii) linkages.

Procedural Aspects

A key reason for the protracted negotiations for the Broadcasters Treaty is the wide range of issues on the agenda of the SCCR. This is not to discount the importance of those issues with regard to the Broadcasters Treaty. Currently, the SCCR is negotiating a treaty on limitations and exceptions for libraries and archives, a treaty on limitations and exceptions for educational and research institutions and for persons with other disabilities, and other miscellaneous issues related to copyright such as copyright for digital environment and resale rights. To ensure equal treatment of all these issues and all interested groups, India should propose an issue-wise splitting of the SCCR.10 Given the complexity of the Broadcasters Treaty, a session exclusively dedicated to it may be proposed in order to reach a consensus by the end of the year.

Just before the 33rd SCCR which took place in November 2016, the delegations of Argentina, Colombia, and Mexico had proposed convening a diplomatic conference in the spring of 2018 at the latest. At the 33rd SCCR, India had yet to consider the proposal. Even at the 34th SCCR, India did not endorse it. A deadline would expedite an otherwise protracted negotiation. India should support the proposal to convene the diplomatic conference as soon as possible, provided that all outstanding issues are cleared.

Outstanding Issues

A developmental issue, which has remained largely overshadowed by meandering negotiations, is that of limitations and exceptions to the Broadcasters Treaty, despite India’s consistent insistence on its importance. Since limitations and exceptions are not part of the draft text, they are not under deliberations. Article 10 of the main working document lays down the limitations and exceptions; it suggests three alternatives. India should ensure that there is a consensus on these three alternatives prior to the convening of the diplomatic conference. Such a crucial issue cannot be left for the diplomatic conference, as there is a risk of not reaching a consensus and the entire process having occurred in vain.

Another issue that India seriously needs to reconsider is its interpretation of the mandate of the 2007 General Assembly, which has changed. The 2006 WIPO General Assembly had decided that

The objective of this Conference is to negotiate and conclude a WIPO Treaty on the protection of broadcasting organizations, including cablecasting organizations. The scope of the Treaty will be confined to the protection of broadcasting and cablecasting organizations in the traditional sense. (WIPO 2007: 1, para 2)

In fact, at the 2006 WIPO General Assembly, the Indian delegation had expressed support for restricting the scope of the Broadcasters Treaty to broadcasting and cablecasting organisations in the traditional sense (WIPO 2006: 33–34, para 82). Evidently, the Broadcasters Treaty’s scope extends to broadcasting organisations in the traditional sense, which is fundamentally different from traditional broadcasting. India’s opposition to granting protection to any form of transmission over computer networks, including simulcasting, based on the mandate of the 2007 General Assembly, is misplaced. As discussed in the preceding sections, traditional Indian broadcasters relay their streams over the internet, which are often subject to piracy. Hence, keeping them outside the purview of the Broadcasters Treaty would be detrimental to the industry.

Based on the author’s conversation with the first secretary of the Permanent Mission of India to the United Nations in November 2016, India favours a separate international convention for protecting transmissions over the internet, even if transmitted by traditional broadcasters. While a separate international legal instrument for mere webcasters is logically and legally sound, the same cannot be said for traditional broadcasters who have internet channel streams. This is because traditional broadcasters are the intended beneficiaries under the Broadcasters Treaty, and as per the mandate of the 2007 General Assembly, they should be a part of the Broadcasters Treaty and not a different legal instrument. Further, just like time and tide wait for none, neither does technology, and particularly when it is employed in the evolving broadcasting industry. By the time a new international treaty for protecting transmissions over computer networks is negotiated, small-scale broadcasters would have been swept away due to dwindling revenues and big players would have adopted new technologies, making the new treaty obsolete. Indian broadcasters have already started relaying live sports events using 4K technology and Japan’s public broadcaster Nipon Hōsō Kyōkai (NHK) has ambitious plans of broadcasting the 2020 Tokyo Summer Olympics using 8K technology. Such is the rapidly evolving state of technology in the broadcasting industry. Hence, India’s myopic outlook on not protecting transmissions over computer networks under the Broadcasters Treaty is nothing short of preposterous, especially when it has been widely supported by the Indian broadcasting industry.

Linkages

International negotiations are a form of barter in which the sole means of payment are state commitments on issues of mutual interest (Leebron 2002: 13). Under international law, linkage of unrelated norms is termed as “substantive linkage” (Leebron 2002: 13). While cross-linking of issues is not illegitimate, it should be resorted to only in cases of utmost importance, particularly when multilateral treaties are being negotiated. This is because it is frought with political complexities, which may hamper the negotiations on all issues involved in the bargaining package (Hoekman 1989: 697).

India is anticipated to resort to “substantive linkage,” wherein its support to the Broadcasters Treaty would depend on the progress of other IP treaties being actively negotiated at the WIPO and other fora. Particularly important from India’s perspective is the status of negotiations at the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which is working towards an international instrument for the protection of traditional knowledge, genetic resources, and folklore. There is a Design Law Treaty being negotiated at the WIPO’s Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT), and the Standing Committee on the Law of Patents (SCP) is working on various substantive issues for an effective international patent system. If India links issues within the agenda of the SCCR, it would be acceptable. However, it should tread with caution before deciding to link the Broadcasters Treaty to the status of negotiations at the IGC, the SCT, and the SCP. This is because it is widely acknowledged that linking disparate issues without substantive arguments is both unfair and counterproductive in multilateral contexts (Leebron 2002: 26). Hence, India should keep the wider politics of intellectual property at bay and strategise on what terms it will endorse the Broadcasters Treaty.

Conclusions

The Broadcasters Treaty is one of the few intellectual property treaties that are devoid of classical North–South divergences. Traditional broadcasters across countries employ the same technology, though their scales differ. By that virtue, they meet the same fate at the hands of pirates. For this reason, the Broadcasters Treaty has found wide support amongst nations, irrespective of the level of their economic development.

The revenue generated by traditional broadcasters is directly proportionate to their ability to invest in the development and procurement of quality content. For a developing country like India, traditional broadcasting is the primary means of mass communication. If the legitimate and justified rights of broadcasters are derogated, it will severely impede their ability to provide these services. As a result, Indians will have to resort to alternative platforms, which will be dominated by OTT players in the coming years. Due to the existing digital divide, the knowledge gap will deepen, as those without internet access will remain bereft of these digital platforms.

India has already witnessed the slow decay of its public service broadcasting. As it marches in its pursuit of becoming an information society, it cannot afford to have its traditional broadcasting system wither. Thus, a balanced Broadcasters Treaty, in which the rights of all stakeholders are considered, becomes imperative.

Notes

1 For limitations of the domestic law, see Seemantani Sharma (2016).

2 It protects only the point-to-point transmission of signals via satellite. This means that signals emitted for direct reception by the public are not afforded protection under it.

3 For an interpretation of Article 14.3 of TRIPS, see WIPO (2012b).

4 The Indian delegate stated, “What this clearly tells us is that even as recently as the last decade when an important international agreement on IP rights and related rights was being negotiated there was no recognition of any need to provide any special protection to broadcasters qua broadcasters” (UNESCO 2005: 9).

5 Werner Rumphorst, the representative of the European Broadcasting Union stated, “While the Rome and Brussels Conventions can be understood for historic reasons, unfortunately, that cannot be said of the recent TRIPS Agreement. One would have hoped that TRIPS would have at least gone beyond Rome, but in fact it gives less protection than the Rome Convention.” See World Symposium on Broadcasting (1997).

6 This is an area worthy of research. Based on the author’s conversation with Professor Uehara, who was present at the Manila Symposium in 1996 and has since then participated in all SCCR meetings related to the Broadcasters Treaty, TRIPS does not reflect robust standards of protection for neighbouring rights (these are rights which are related or neighbouring to copyright, such as the right of broadcasters, performing artists, and producers of phonograms). This is because TRIPS embodies the United States’ (US) standards of protection; since there is no system of neighbouring rights in the US (specifically concerning broadcasters), the same is not reflected in TRIPS. WIPO-administered copyright treaties are reminiscent of the European legal system.

7 See India Internet Users, Internet Live Stats, 2016, http://www.internetlivestats.com/internet-users/india/.

8 Doordarshan is a terrestrial broadcaster, which has the potential to reach 90% of India’s population, making terrestrial broadcasting the most prevalent form of broadcasting technology in India. However, historically, the Indian broadcast sector has been dominated by analogue signals (cable), which have recently undergone a wave of digitisation. With the advent of direct-to-home (DTH) connections, satellite broadcasting has become the most prevalent form of broadcast technology in India.

9 If there is no harmonisation in protecting the rights of broadcasting organisations, WIPO member states will most likely address the lacunae in the existing international regime by amending their national legislations. This would lead to substantial variations across jurisdictions, the brunt of which small-scale traditional broadcasters will have to bear. In the event that their signal is pirated in a foreign jurisdiction, they will have to seek the expert legal advice of local lawyers, the costs of which may be exorbitant, depending on the jurisdiction. If, however, there is a harmonised international standard, member states will adhere their national legislations to that standard, which will keep disparities in the laws to a minimum.

10 During the closing of the 33rd SCCR, the Indian delegation had expressed its concern regarding the unequal treatment meted out to various items on the SCCR agenda. To close the existing gap, India invited the chair to take the initiative to propose a plan of action to bring the discussions on limitations and exceptions to its logical conclusion.

References

Helfer, Laurence R (1998): “Adjudicating Copyright Claims under the TRIPS Agreement: The Case for a European Human Rights Analogy,” Harvard Law Journal, Vol 39, No 2, pp 357–441.

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Annexure 1: Alternative Definitions of Broadcasting

(c) “Broadcasting”

Alternative A

(c)(1) “Broadcasting” means the transmission of a programme-carrying signal by wireless means for reception by the public; such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasters or with its consent. [Transmissions over computer networks shall not constitute “broadcasting”.]

(2) “Cablecasting” means the transmission of a programme-carrying signal by wire for reception by the public. Transmission by wire of encrypted signals is “cablecasting” where the means for decrypting are provided to the public by the cablecasting organisation or with its consent. [Transmissions over computer networks shall not constitute “cablecasting”.]

Alternative B

(c) “Broadcasting” means the transmission either by wireless means or any other means for reception by the public of a programme-carrying signal; such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasters or with its consent. [Transmissions over computer networks shall not constitute “broadcasting”.]

 

Annexure 2: Alternative Definitions of Retransmission

(e) “Retransmission”

Alternative A

(e) “Retransmission” means the transmission for the reception by the public by any means [/over any medium] of a programme-carrying signal by any other entity than the original broadcasting [/cablecasting] organisation or someone authorised by it, whether simultaneous, near-simultaneous or deferred.

Alternative B

(e) “Retransmission” means the simultaneous or near-simultaneous transmission for the reception by the public by any means [/over any medium] of a programme-carrying signal by any other entity than the original broadcasting [/cablecasting] organisation or someone authorised by it.

 

Annexure 3: Alternatives to Clause (3) of Object of Protection

(3)

Alternative A

Notwithstanding paragraph (2) above, broadcasting [/cablecasting] organisations shall also enjoy protection for simultaneous and near simultaneous transmissions by any means [/over any medium].

Alternative B

(i) Notwithstanding paragraph (2) above, broadcasting [/cablecasting] organisations shall also enjoy protection for a simultaneous, near simultaneous [or deferred] transmission by any means [/over any medium] [including for a transmission made in such a way that members of the public may access it from a place and at the time individually chosen by them].

[(ii) Contracting parties may limit protection of deferred transmissions, including for a transmission made in such a way that members of the public may access it from a place and at the time individually chosen by them.

(iii) Contracting parties may limit protection accorded to broadcasting [/cablecasting] organisations from another contracting party that chooses to apply subparagraph (ii), to those rights that its own broadcasting [/cablecasting] organisations enjoy in that other contracting party].

Annexure 4: Alternatives to Clause (1) of Rights to be Granted/Protected

(1)

Alternative A

(i) Broadcasters shall have the right to authorise or prohibit the [simultaneous, near-simultaneous] [and deferred] retransmission of their programme carrying signal to the public [by any means] [/over any medium].

[(ii) Broadcasting [and cablecasting] organisations shall also enjoy the right to authorise or prohibit the making available to the public of their broadcasts [and cablecasts] in such a way that the members of the public may access them from a place and at a time individually chosen by them].

Alternative B

(i) Broadcasters shall have the right to prohibit the unauthorised [simultaneous, near-simultaneous] [and deferred] retransmission of their programme carrying signal to the public [by any means] [/over any medium].

[(ii) Broadcasting [and cablecasting] organisations shall also enjoy the right to prohibit the making available to the public of their broadcasts [and cablecasts] in such a way that the members of the public may access them from a place and at a time individually chosen by them].

 

Annexure 5: Alternatives to Clause (2) of Rights to be Granted/Protected

(2)

Alternative A

Broadcasters shall also enjoy the right to prohibit the unauthorised retransmission of their pre-broadcast signal [by any means] [/over any medium].

Alternative B

Broadcasters shall enjoy adequate and effective protection for their pre-broadcast signals.

[Source: WIPO (2016): “The Proposed Treaty for the Protection of Broadcasters,” Standing Committee on Copyright and Related Rights, 33rd Session, Geneva, November (Document SCCR/33/3).]

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