Lokesh Vyas; Luca Schirru; Sean Flynn
Members of the research team from the Program of Information Justice and Intellectual Property (PIJIP)’ Geneva Center published a “Documentary History of the Broadcast Treaty in the SCCR” (2025). Joint PIJIP/TLS Research Paper Series. 145. https://digitalcommons.wcl.american.edu/research/145/
The document traces the discussions and statements made by Member States across all SCCR and General Assembly meetings from the launch of the Standing Committee on Copyright and Related Rights in 1998 to the 45th meeting of the committee in 2024. The history can be used to analyze the evolution in the statements, positions, and proposals of countries over this long history. This note describes the pre-history of the Broadcasting Treaty before the creation of the SCCR.
Berne Convention
Broadcasting entered the international copyright scene in the 1928 Rome Revision of the Berne Convention, with the introduction of Article 11bis to the Berne Convention:
“Article 11bis: (1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the communication of their works to the public by radio-diffusion.
(2) The national legislations of the countries of the Union may regulate the conditions under which the right mentioned in the preceding paragraph shall be exercised, but the effect of those conditions will be strictly limited to the countries which have put them in force. Such conditions shall not in any case prejudice the moral right (droit moral) of the author, nor the right which belongs to the author to obtain an equitable remuneration which shall be fixed, failing agreement, by the competent authority.”[2]
The exclusive right in 11bis is limited to communications “to the public” by the particular means of “radio-diffusion.” It thus did not cover issues such as rebroadcasts by other means (e.g. cable, internet, etc.) or one-to-one transmissions. Article 11bis(2) gives governments flexibility in how to regulate the right. The importance of public interest regulation was emphasized by the Sub-Committee on Broadcasting which discussed the issue at the conference.[3]
In 1948, Article 11bis(1) was expanded to cover additional technologies, and Article 11bis(3) was introduced, creating an exception for “ephemeral recordings made by a broadcasting body by means of its own facilities and used for its own emissions”.[4] The provision also permitted legislation to authorize the preservation of such recordings in official archives if they held exceptional documentary value.
The 1967 Stockholm Revision brought further modifications: Article 11bis(1) was revised to include the terms “broadcasting” and “rebroadcasting”. Article 11bis(2) remained unchanged; the wording of Article 11bis(3) was slightly modified, though without any substantial legal effect.
Rome Convention
The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome, 1961) convened jointly by two UN agencies: ILO and UNESCO, as well as BIRPI (WIPO’s predecessor), included a related right of broadcasting organizations. As James Love has described:
“Broadcasting organizations made a discrete case for inclusion in the treaty as a beneficiary, even when making no creative contribution. Backed by sheer lobbying power, broadcasters claimed that, unlike theater owners, record or bookstores, they were tasked with making works available to the public without direct compensation from listeners, often with additional public service obligations, and were entitled to rights, even when none existed for the works broadcast.”[5]
The treaty defined “broadcasting” as “the transmission by wireless means for public reception”[6] and “rebroadcasting” as “the simultaneous broadcasting by one broadcasting organisation of the broadcast of another broadcasting organisation”.[7] The treaty was thus limited to the protection of live broadcasts by traditional wireless means. The Rome Convention included a list of permissible limitations and exceptions.[8]
Brussels Convention
As Delia Lipszyc noted with the rise of orbiting or geostationary satellites in international telecommunications since 1965, broadcasting organizations expressed the need for adequate protection against the ‘piracy of signals’ when their television programmes were transmitted by space satellites.[9] The Rome Convention left ambiguity on this issue as it only covered “wireless” transmissions, raising doubts about whether it applied to broadcasts relayed through satellites.
International discussions on the legal challenges of “intercontinental broadcasts of television programmes by satellite” began in 1968 and 1969. Following these meetings, UNESCO and BIRPI jointly convened a Committee of Governmental Experts to examine copyright and related rights issues affecting performers, phonogram producers, and broadcasters due to satellite transmissions. The committee met three times—in Lausanne (1971), Paris (1972), and Nairobi (1973)—laying the groundwork for the 1974 Diplomatic Conference in Brussels.[10]
In the 1974 Brussels Diplomatic Conference Report, Lipszyc notes that the General Rapporteur highlighted the issue’s urgency, as recognized by the three Committees of Governmental Experts. They explored several possible solutions, including: 1.) the revision of the International Telecommunication Convention or of the annexed Radio Regulations; the revision of the Rome Convention (1961); 2.) the adoption of a new multilateral Convention; or 3.) some other formula, such as the confirmation of the existing international agreements or 4.) the adoption of a straightforward resolution condemning the piracy of signals. Quoting from Lipszyc:
“As the preparatory work progressed, a consensus emerged in favour of the third solution; even though some countries considered that the Rome Convention granted broadcasters protection against unauthorized rebroadcasting of their signals transmitted by satellites, it was still clear that, because of the few accessions to that Convention, it did not immediately lend itself to a solution of this problem at world level. … At the meetings of the three Committees of Experts, discussions focused mainly on a number of drafts of a new multilateral convention designed to prevent the rebroadcasting of signals transmitted via satellites by distributors for whom they were not intended; but it proved particularly difficult to arrive at a general consensus on the content and terms of this Convention”.
The above-referred Report highlighted that the main difficulty arose at the meeting of the First Committee of Governmental Experts (Lausanne, 1971) and took up a great deal of the proceedings of all three preparatory meetings. The problem was to know whether, if exclusive rights were granted to the originating broadcasting organizations in the sphere of private law and within a new international Convention, that facility would be compensated by the granting of correlative rights to the ‘contributors’ to the programmes. The Lausanne Report drew attention to the fact that ‘several delegations said that they could accept an independent treaty only if it contained provisions safeguarding the interests of authors, performers, and producers of phonograms, and did not prejudice the future of the Rome Convention’. A draft Convention was prepared and the pursuit of the preparatory work was recommended.
The Second Committee (Paris, 1972) did not manage to solve the problem of the recognition of correlative rights for ‘contributors’ to programmes. The way forward was found by the Third Committee of Governmental Experts (Nairobi, 1973) which changed both the general concept and the legal structure of the draft Convention as a consequence of a proposal submitted by the delegations of Morocco, Brazil, India, and Mexico. The Report of the 1974 Conference points out that the Nairobi draft proposed that the Convention should pass from the field of private international law into that of public international law, by eliminating any reference to private rights and leaving the States free to decide for themselves the most suitable means of eliminating piracy on their respective territories. Instead of requiring the States to ensure respect for individual property rights by recognizing an exclusive right of authorization, the Nairobi text called upon them to adopt all appropriate measures to prevent the distribution on their territories of signals broadcast from satellites by distributors for whom those signals were not intended.
Since the Convention did not grant new rights to broadcasters, the majority of the delegations and almost all the observers present in Nairobi felt that there was no longer any need to create additional new rights in parallel within the ambit of the Convention to protect the interests of ‘contributors’ to the programmes. The Nairobi draft was accordingly approved by the Third Committee which considered that it could be generally accepted and recommended the convening, in 1974, of a diplomatic conference to draw up an International Convention in this area”[11]
Model law on broadcasts
While the 1974 Brussels Convention was being finalized, a parallel negotiation was underway for a model law on the protection of performers, producers of phonograms, and broadcasting organizations.[12] This effort was led by the Intergovernmental Committee established under Article 32 of the Rome Convention.
A draft model law was published in 1973,[13] followed by a revised version,[14] which was adopted in Brussels during the Second Extraordinary Session of the Intergovernmental Committee (May 6–10, 1974). This 1974 draft provided more limitations to broadcasting than the previous 1973 model draft. The issue continued, and when the 1996 WCT and WPPT conference came about in 1996, a similar desire for having a separate treaty for broadcasting also got traction, which was to be catered by the creation of the Standing Committee on Copyright and Related Rights (SCCR).
Creation of the SCCR
Consideration of a treaty on the protection of broadcast organizations was included on issues to be addressed by the Standing Committee on Copyright and Related Rights when that Committee was created by the 32nd Assemblies of the Member States of WIPO (March 25 to 27, 1998). [15] The SCCR was established in a broader shift from relying on Committees of Experts to standing committees composed of member states.[16] The SCCR was created with four initial agenda items, including Protection of the Rights of Broadcasting Organizations.[17]
Endnotes
[1] See generally, Sean Flynn & James Love, Whither a Signal-Based Broadcast Treaty?, Kluwer Copyright Blog, April 18, 2024 https://copyrightblog.kluweriplaw.com/2024/04/18/whither-a-signal-based-broadcast-treaty/; Hugenholtz, Bernt, “Simplifying the WIPO Broadcasting Treaty: Proposed Amendments to the Third Revised Draft” Joint PIJIP/TLS Research Paper Series. 85. (2023); Love, James, “The Trouble With the WIPO Broadcasting Treaty” Joint PIJIP/TLS Research Paper Series. 85 (2023); Love, James, “Comments on the September 6, 2023 Draft of a WIPO Broadcasting Treaty, the Definitions, Scope of Application, National Treatment and Formalities” (2023). Joint PIJIP/TLS Research Paper Series. 110. https://digitalcommons.wcl.american.edu/research/110
[2]Rome Act, 1928, https://global.oup.com/booksites/content/9780198259466/15550019 (Article 11bis: (1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the communication of their works to the public by radio-diffusion.: (2) The national legislations of the countries of the Union may regulate the conditions under which the right mentioned in the preceding paragraph shall be exercised, but the effect of those conditions will be strictly limited to the countries which have put them in force. Such conditions shall not in any case prejudice the moral right (droit moral) of the author, nor the right which belongs to the author to obtain an equitable remuneration which shall be fixed, failing agreement, by the competent authority.)
[3] See Berne Convention Centenary (WIPO, 1986) page 165, (In the Records Of The Conference Convened In Rome May 7 To June 2, 1928: A general agreement emerged, following an examination in depth of the proposals made by the various administrations and delegations on the necessity of protecting the author’s moral rights as well as his economic rights, even with regard to broadcasting. However, because national legislation has, in various guises, given broadcasting services a markedly social character, it is difficult, precisely when the tendency seems destined to increase more and more, to anticipate the manner in which broadcasting services and the laws governing them are going to develop. A number of delegations consequently laid stress on the necessity of proceeding with great care in the international regulation of this important problem, and proved ill-inclined to make undertakings that might hamper the development of broadcasting as a social service. It was therefore considered essential to adopt principles that both safeguarded the rights of authors and also reconciled them harmoniously with the social purposes of broadcasting.) page 174 (“[I]t can be seen that the adopted text [of Article 11bis] represents a compromise between two opposing tendencies—that of completely assimilating the radio broadcasting right to the author’s other exclusive rights (a tendency defended especially by the British and French Delegations) and that of considering the matter subject to intervention on the part of the public authorities in order to protect the cultural and social interests linked to this specific new form of popular dissemination of intellectual works, particularly musical ones (a tendency defended especially by the Australian and New Zealand Delegations). The discussions on this issue continued throughout the entire dura”)
[4] Brussels Act, 1948 https://global.oup.com/booksites/content/9780198259466/15550020 (Article 11bis (1) Authors of literary and artistic works shall have the exclusive right of authorizing: (i) the radio-diffusion of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images; (ii) any communication to the public, whether over wires or not, of the radiodiffusion of the work, when this communication is made by a body other than the original one; (iii) the communication to the public by loudspeaker or any other similar instrument transmitting, by signs, sounds or images, the radio-diffusion of the work. (2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral right of the author, nor to his right to obtain just remuneration which, in the absence of agreement, shall be fixed by competent authority. (3) Except where otherwise provided, permission granted in accordance with paragraph (1) of this Article shall not imply permission to record the radio-diffused work by means of instruments recording sounds or images. It shall, however, be a matter for legislation in the countries of the Union to determine the regulations for ephemeral recordings made by a broadcasting body by means of its own facilities and used for its own emissions. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by such legislation.)
[5] Love, James, “The Trouble With the WIPO Broadcasting Treaty” (2023). Joint PIJIP/TLS Research Paper Series. 85. https://digitalcommons.wcl.american.edu/research/88
[6] Section 3(h), ROME CONVENTION, 1961
[7] Section 3(g), ROME CONVENTION, 1961
[8] Article 15, ROME CONVENTION, 1961
[9] Delia Lipszyc, Copyright and neighbouring rights, UNESCO Publication 1999 page 975 https://unesdoc.unesco.org/ark:/48223/pf0000120722 see also ecords of the Conference of States 011 the Distribution of Progranirne- carrying Signals Trarisinitted by Satellite, UNESCO-WIPO, 1977.
[10] Ibid
[11] Ibid
[12] Love, James, “The Trouble With the WIPO Broadcasting Treaty” (2023). Joint PIJIP/TLS Research Paper Series. 85. https://digitalcommons.wcl.american.edu/research/88
[13] Draft model law concerning the protection of performers, producers of phonograms and broadcasting organizations Conference: Non-governmental Study Group to Consider the Draft Model Law relating to the Rome Convention, Geneva, 1973 [4] Corporate author: International Labour Organization [1269], World Intellectual Property Organization [675] Document code: ILO/UNESCO/WIPO/MLRC/2 https://unesdoc.unesco.org/ark:/48223/pf0000006547?2
[14] Model law concerning the Protection of Performers, Producers of Phonograms and Broadcasting Organizations with a commentary on it Corporate author: International Labour Organization [1269], World Intellectual Property Organization, Year of publication: 1982 https://unesdoc.unesco.org/ark:/48223/pf0000215524
[15] See Draft Program and Budget 1998-1999 Presented by the Director General February 9, 1998, at 96, https://www.wipo.int/edocs/mdocs/govbody/en/a_32/a_32_2_wo_bc_18_2.pdf.
[16] The Assemblies of the Member States of WIPO and the Unions administered by WIPO, at their thirty-second series of meetings, held in Geneva from March 25 to 27, 1998, approved the Program and Budget for the 1998-99 biennium approving a proposal for the establishment of “Standing Committees.” The introductory portion of the Program and Budget (page viii) stated:
“The progressive development of international intellectual property law and international harmonization will be facilitated by the rationalization and amalgamation of the existing multiple Committees of Experts to form Standing Committees of Member States to examine questions of substantive law or harmonization in WIPO’s main fields of activity…. As with the existing committee system, the expertise and breadth of representation of Member States would enable the Standing Committees to advance discussion on the substance of an issue to the point where the main characteristics of the possible solution are clear, and then to formulate recommendations for consideration by the General Assembly (or other Assembly) … , whether by a formal treaty or by other means. Each Standing Committee would be established by the relevant Assembly through the adoption of this program and budget, and its agenda determined during its first meeting, based on the relevant program objectives, to be reviewed in subsequent meetings. To ensure a wide range of representation, WIPO would finance participation by some Member States.”
[17] The other three activities were 1.) Protection of Audiovisual Performances, 2.) Protection of Databases, 3.) Protection of the Rights of Broadcasting Organizations, and 4.) Copyright, Related Rights, and Digital Technology. Id
