Argentina and Brazil tabled language that adds more specificity to the limitations and exceptions that may be offered to the new exclusive rights of broadcasters that the proposed Broadcast Treaty would require. But the proposal fails to follow the most recent best practices in international law by requiring exceptions, protecting fair use and safeguarding the digital environment.
The Argentina & Brazil Proposal states:
(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting [or cablecasting] organizations as they provide, in their national legislation, in connection with the protection of copyright in literary and artistic works, and the protection of related rights.
(2) Any Contracting Party may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Treaty as regards:
(a) private use (subject to clarification on scope);
(b) use of short excerpts in connection with the reporting of current events;
(c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts;
(d) use solely for the purposes of teaching or scientific research;
(e) the use to specifically allow access by persons with impaired sight or hearing, learning disabilities, or other special needs;
(f) the use by libraries, archives or educational institutions, to make publicly accessible broadcast protected by any exclusive rights of the broadcasting organization, for purposes of preservation, education and/or research;
(3) Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the programme-carrying signal and do not unreasonably prejudice the legitimate interests of the broadcasting [or cablecasting] organization.
Limitations and exceptions in the treaty have become particularly important as the treaty drifts toward proposals to create new exclusive rights that may cover internet content transmission and re-transmission. See KEI, SCCR 35 Day 1 at WIPO Standing Committee on Copyright and Related Rights: will the “YouTube treaty” progress?
Teresa Hackett of EIFL testified during the Committee’s open sessions, the issue is that the treaty proposes to offer “post-fixation” rights – rights of exclusion that go beyond the mere ban on the reproduction of the live signal itself.
“When a new broadcast right goes beyond signal protection into post-fixation rights, libraries must take notice to ensure fair access to broadcast content for social, educational and public interest reasons.”
The new Argentina/Brazil proposal, in paragraph (2), adds to the existing language in the Treaty proposal a new list of specific exceptions that a country may have. That may be a small step forward. But the proposal lacks many of the most important elements of modern limitations and exceptions treaties.
Mandatory User Rights
The Broadcast limitations and exceptions are entirely permissive. It does not require an exception for quotation, as does the Berne Convention. It does not require exceptions for temporary copies needed to make legitimate transmissions, as does the EU InfoSoc Directive. Nor does it even require countries to “endeavor to achieve an appropriate balance” as does the newly agreed upon 11-country Trans Pacific Partnership Agreement.
Protect Fair Use
Perhaps because the US is the last country holding out from entering a diplomatic conference on the treaty, the Broadcasting proposal lacks language found in many treaties protecting the operation of open exceptions like fair use from challenge under the Three Step Test. See US-Korea Free Trade Agreement art.18.4 footnote 11 (“may adopt . . . fair use”); Marrakesh Treaty, art. 10 (“may” implement through “fair practices, dealings or uses”).
Protect Legitimate Anti-Circumvention
Brazil has proposed, but there is no agreement yet, to explicitly permit legitimate circumvention of technological protection measures that could block a reproduction of a broadcast. See Marrakesh Treaty art. 7(requiring appropriate measures to ensure that prohibitions against circumvention do not prevent limitations and exceptions); Beijing Treaty, footnote 10, agreed statement concerning art. 15 (“nothing . . . prevents . . . measures to ensure . . . limitations and exceptions”).
Protect Berne Exceptions
Finally, the Three Step Test it adopts would apply beyond areas subjected to the three step test under Berne, such as to quotation rights. KEI has thus advocated that it be modified to “confine any *additional* limitations” and add reference to legitimate interests of third parties, which is part of the TRIPS Three Step Test for patents and trademarks.
Public interest advocates may push for broader adoption of these elements of an exceptions clause in the next round.