Thursday, May 31, 2018

Submission of Civil Society Coalition at WIPO SCCR 36 on Broadcasters' Rights Treaty

Howard Knopf
May 28, 2018

1.      This current proposal frankly seems to be a proposed treaty that is mostly in search of a problem that doesn’t exist.
2.      If the problem is piracy, there are adequate and effective means of stopping piracy now in place virtually everywhere.  
3.      This proposed treaty is inevitably going to cause unintended consequences and complications concerning the internet.
4.      Among the many concerns we have about the broadcast treaty are:
a)      will the treaty outlaw the use of Virtual Private Networks (VPNs); and,
b)      will the systems of safe harbors for ISPs we now have for copyright also apply to the new broadcaster rights?
5.      It will create a potentially impenetrable thicket of new rights that will prevent lawful access to the underlying content, even long after the copyright – if any – may have expired.
6.      This reminds me of the WIPO Washington Treaty of 1989 – which was about integrated circuit protection – which was the next big thing at the time. That treaty was unnecessary and still hasn’t entered into force 29 years later.
7.      I note that this proposed treaty has been under urgent discussion for almost 20 years – and there’s still no evidence of any problems and the sky has not fallen. Indeed, new platforms for delivering digital content are exploding, and doing very well.  Lawful and convenient offers have reduced the piracy problems.  
8.      Canada has modest but adequate and effective provisions in its Copyright Act for the protection of the right of broadcasters. These provisions do not create the many problems that we foresee with this treaty as currently proposed. Canada’s provisions are as follows:

Rights of Broadcasters
Marginal note: Copyright in communication signals

    21 (1) Subject to subsection (2), a broadcaster has a copyright in the communication signals that it broadcasts, consisting of the sole right to do the following in relation to the communication signal or any substantial part thereof:

        (a) to fix it,

        (b) to reproduce any fixation of it that was made without the broadcaster’s consent,

        (c) to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast, and

        (d) in the case of a television communication signal, to perform it in a place open to the public on payment of an entrance fee,

    and to authorize any act described in paragraph (a), (b) or (d).
    Marginal note: Conditions for copyright

    (2) Subsection (1) applies only if the broadcaster

        (a) at the time of the broadcast, had its headquarters in Canada, in a country that is a WTO Member or in a Rome Convention country; and

        (b) broadcasts the communication signal from that country.

    Marginal note: Exception

    (3) Notwithstanding subsection (2), if the Minister is of the opinion that a Rome Convention country or a country that is a WTO Member does not grant the right mentioned in paragraph (1)(d), the Minister may, by a statement published in the Canada Gazette, declare that broadcasters that have their headquarters in that country are not entitled to that right.

Term of copyright — communication signal
23 (1.2) Subject to this Act, copyright in a communication signal subsists until the end of 50 years after the end of the calendar year in which the communication signal is broadcast.

Thank you.

Howard Knopf

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