Prof. P. Bernt Hugenholtz

Institute for Information Law (IViR), University of Amsterdam

Email: hugenholtz@uva.nl

In preparation of the 44th meeting of the SCCR a Third Revised Draft Text for the WIPO Broadcasting Organizations Treaty was prepared by the SCCR Acting Chair, which was published on 6 September 2023. The draft replaces the Second Revised Draft that was discussed during the SCCR meeting of 13-17 March 2023. In his summary of that meeting’s proceedings the SCCR Chair observed:

“With respect to objectives, there is common understanding amongst the Committee that any potential treaty should be narrowly focused on signal piracy and that it should provide member states with flexibility to implement obligations through adequate and effective legal means. With these objectives in mind, there is also common understanding that the object of protection (subject matter) of any potential treaty should be limited to the transmission of programme-carrying signals and should not extend to any post-fixation activities, thus avoiding interference with the rights related to the underlying content.”

The current (third) draft contains mostly minor modifications as compared to the previous draft. The main changes are:

Article 2: the definition of broadcasting organization is clarified by including the requirement that “the programmes of a broadcasting organization form a linear programme-flow”. Also the definition of “stored programmes” is expanded to include licensed programs not yet broadcast.

Article 3: the reservation clause that allowed Contracting States to exclude transmissions by computer networks from the scope of the Treaty, is removed and replaced by a narrower reservation clause regarding the retransmission right in Article 6.

Article 7: the scope of the fixation right is clarified in the Explanatory Notes.

Article 11: the enumeration of permitted limitations and exceptions is made non exhaustive by adding the words “such as”.

The previous (second) revised draft was critically examined by the author of this document, in a paper that was published earlier this year [“Comments”]. The present document, which was likewise commissioned by American University’s Program on Information Justice and Intellectual Property (PIJIP), builds on the Comments by proposing amendments that transform the main points of criticism and suggestions for improvement into possible treaty language. In doing so, the present paper also draws from other commentaries, as well as from the lengthy history of the proposed treaty, which began in 1998 – now, twenty-five years ago.

See complete analysis HERE