Sean Flynn

GENEVA. At this week’s WIPO General Assembly, the United States for the first time alleged that the current draft of the WIPO Broadcast Treaty “exceeds the General Assembly mandate” that it be “signal-based” and limited to “traditional” broadcasters. The US stopped short, however, from calling for a purely signal-based treaty, instead repeating its position that it supports a “single exclusive right” approach while opposing only two of the draft treaty’s four exclusive rights provisions.

The United States Statement

The USA statement in the General Assembly with regard to the Broadcast Treaty stated in relevant part:

With regard to the protection of broadcasting organizations in the digital age, the United States continues to support updating such protection under the terms of the 2006-2007 WIPO General Assembly mandate which calls for a signal-based approach to provide protection for the activities of broadcasting organizations in the traditional sense. However, the text of the current draft text on broadcasting organizations in our view exceeds the General Assembly mandate with its inclusion of new exclusive rights of fixation and transmission of stored programs. The United States believes that to remain consistent with this mandate, the scope of rights to be granted should be limited to providing traditional broadcasting organizations with a single exclusive right to authorize simultaneous retransmissions to the public of their linear broadcast signals. We feel that this single right approach is the most prudent manner to address the core problem of signal piracy while still being able to achieve consensus at the international level. Of course, each jurisdiction would remain free to provide additional, more specific rights in their national laws as they see fit.1

Previous GA Mandates on Broadcasting

As previously reported, the over two decade old negotiation over a treaty for broadcast organizations has reached another decision point that could open the door for a diplomatic conference to finalize the instrument. But the current draft instrument, which most or all other countries appear ready to endorse as a binding treaty, does not comply with the applicable decisions of the General Assembly on its scope and object of protection:  

“At issue are two General Assembly decisions, each over 15 years old, that required the SCCR to narrow the agreement. The 2006 GA authorized negotiations for a diplomatic conference on the Broadcast Treaty only on “traditional” broadcasting and cable casting and only adopting a ‘signal based’ approach. After a failed attempt to create a negotiating draft on these terms, the 2007 GA authorized progress to a Diplomatic Conference on the treaty “only after agreement on objectives, specific scope and object of protection has been achieved.’”2

When these GA decisions were adopted, the idea of a “signal-based” treaty had a clear meaning. It was meant to clarify that “the treaty should not be ‘rights-based,’ that is, grant exclusive rights in broadcasts similar to copyright,” and rather be focused on “the prevention of theft or piracy of pre-broadcast signals” through any appropriate means.3 

In other words, the 2006 General Assembly decision was meant to demand an approach similar to the Brussels Convention Relating To The Distribution of Programme-Carrying Signals Transmitted By Satellite, 1974, which requires only “adequate measures to prevent the distribution on or from its territory of any programme-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended.”4 The Brussels Convention does not require or promote giving satellite broadcasters ant exclusive rights to authorize transmissions. 

The Current Draft Broadcast Treaty

The current Chair’s Text of the Broadcast Treaty continues to be based on the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, which requires its members to grant Broadcasting organizations “the right to authorize or prohibit” rebroadcasting, fixation of their broadcasts, reproductions of fixations, and communications to the public of television broadcasts in public places.5

The Chair’s Draft is a kind of hybrid between the Brussels and Rome approaches. Current Articles 6-9 state that Broadcasting Organizations “shall enjoy the exclusive right” to authorize (Arts. 6,7) or prohibit (Arts. 8,9) retransmissions to the public, fixations, transmissions of stored programmes, and use of pre-broadcast signals. This is a Rome Convention style approach. The Draft adds to these mandatory exclusive rights a Brussels Convention-style opt out, in current Article 10, permitting countries to adopt “other adequate and effective protection.” 

Only 97 of WIPO’s 193 members have joined the Rome Convention.6 One reason is that many countries regulate broadcasts with telecommunications law rather than copyright and related rights. Confining a treaty to a signal based approach with no exclusive rights was meant in 2006 to clear a pathway for the treaty to move forward and become more widely adopted than the Rome Convention. The question being posed by SCCR’s work to date is whether a hybrid of a core text of mandatory exclusive rights paired with an ‘other … protection’ opt out meets the GA mandate. 

The United States Position on the Broadcast Treaty

At the 2024 General Assembly, the United States became the first country to argue explicitly that the current SCCR draft of the Broadcast Treaty “exceeds the General Assembly mandate.” But instead of arguing that a signal-based approach should not include any exclusive rights at all, it protested only “its inclusion of new exclusive rights of fixation and transmission of stored programs.”7 This position opposing the exclusive rights in Articles 7 and 8, but not those in articles 6 and 9, is consistent with the US position in the last meeting of the SCCR.

The US has not opposed the inclusion of exclusive rights in the treaty. Its statement repeated its position that “the scope of rights to be granted should be limited to providing traditional broadcasting organizations with a single exclusive right to authorize simultaneous retransmissions to the public of their linear broadcast signals.”8 And in actuality it has not opposed Article 9, which contains a second exclusive right — to “use” pre-broadcast signals.

Lack of Support for the US Position

The US claimed in its statement that its position is supported by other delegations:

“The United States is not alone in our concerns as significant questions and concerns were raised at SCCR 45 by a variety of Member States and regional groups regarding the Treaty’s objectives, rights to be granted and scope of protection.”9

While it is true that some countries have stated concerns with the Broadcast Treaty, largely related to its limitations and exceptions,10 the US opposition to Articles 7 and 8 of the draft in the last SCCR and in the General Assembly has not been supported by any other delegation.11 Nor has any other delegation alleged that the current draft is not in compliance with the 2006/07 GA mandates. 

Whither “Traditional” Broadcasting

In addition to not being signal-based, the current draft Broadcasting Treaty is not limited to “traditional” broadcasting. The US endorsed the language of the 2006 GA on this aspect as well, but did not define what it meant by its endorsement. 

The statement by Group B, of which the US is a member, asserted that it supports a broadcasting treaty “that would take into account the technological developments.” This language is meant to signal that the treaty should not be restricted to traditional over the air broadcasting. 

As James Love has described, the current draft takes into account technological developments by extending to “very broad categories of information transmissions,” including  Internet streaming services like Spotify and Netflix and even “point-to-point” electronic transmissions such that might include email and text transmissions.12

A New GA Mandate?

The conflict between the 2006/07 mandates and the current work of the SCCR on the Broadcast Treaty calls into question whether the GA needs to update its mandate. 

An expert for the SCCR commented in SCCR 45 that “after 17 years there are varying views as to whether the mandate is still relevant and valid.” But the same expert concluded that “because the general assembly has not [adopted] any mandate superseding that of 2006 and 2007, … the view is that mandate is still relevant and applicable.” 13

As discussed above, the Chair’s draft discussed in SCCR 45 includes several exclusive rights provisions (it is not signal-based) and the text is applicable to Internet-originated content, not only traditional broadcast. If it is the will of the General Assembly to expand its mandate to SCCR, this would be the right time for an update. Unfortunately, no country has called for such an update so far. 

  1. See US statement on Broadcast Treaty to WIPO General Assembly on Copyright. 11 July 2024 https://www.youtube.com/watch?v=LvphB3GaY7E ↩︎
  2. Sean Flynn, Jon Band, and James Love, Whither A Signal-Based Broadcast Treaty? Wipo Negotiators Appear Prepared To Approve A Draft Broadcast Treaty That Is No Longer “Signal-Based” Or Limited To “Traditional” (Non-Internet-Based) Broadcasting. https://infojustice.org/archives/45699 ↩︎
  3. Congressional Research Service, WIPO Treaty on the Protection of Broadcasting Organizations, RS22585 (January 26, 2007). https://www.everycrsreport.com/reports/RS22585.html ↩︎
  4. Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, 1974, at https://www.wipo.int/wipolex/en/treaties/textdetails/12242 ↩︎
  5. Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961, at https://www.wipo.int/wipolex/en/treaties/textdetails/12656 ↩︎
  6. WIPO-Administered Treaties, Rome Convention, total of members at https://www.wipo.int/wipolex/en/treaties/ShowResults?search_what=C&treaty_id=17 ↩︎
  7. General Assembly 2024, SCCR Session, webcast at https://webcast.wipo.int/video/A_65_2024-07-11_AM_123132 ↩︎
  8. Id. ↩︎
  9. Supra note 7 ↩︎
  10. For example, the representative of Pakistan stated that “[b]efore the creation of a brand new set of exclusive rights, it is also necessary to have a clear understanding of the impact of such rights on the public, educators and copyright holders, especially in the context of emerging technologies.” And on behalf of Asia Pacific countries, Iran stated that “[m]ost members of the group believe that appropriate limitation and exceptions should apply and be reflected in the draft text, particularly in providing access to broadcast content for educational, cultural and research purposes.” ↩︎
  11. Flynn, Sean and Izquierdo, Andres, “Excerpts of SCCR 44 Delegate Statements” (2023). Joint PIJIP/TLS Research Paper Series. 116.
    https://digitalcommons.wcl.american.edu/research/116 (charting the positions of all countries at last SCCR). ↩︎
  12. James P. Love, Comments on the September 6, 2023 Draft of a WIPO Broadcasting Treaty, the Definitions, Scope of Application, National Treatment and Formalities, Joint PIJIP/TLS Research Paper Series No. 110 (2023), https://digitalcommons.wcl.american.edu/research/110. ↩︎
  13. See Sean Flynn, James Love and Jonathan Band, Whither A Signal-Based Broadcast Treaty? Wipo Negotiators Appear Prepared To Approve A Draft Broadcast Treaty That Is No Longer “Signal-Based” Or Limited To “Traditional” (Non-Internet-Based) Broadcasting., Infojustice.org, (Apr 18, 2024). (showing how the Draft Broadcasting Treaty goes beyond its original focus on traditional broadcast signal interception. This could lead to granting new exclusive rights to webcasters, diverging from initial mandates and raising concerns about its impact on copyright and internet content.) ↩︎