India has drastically changed its stance on post-fixation rights in the ongoing negotiations for the international Broadcasters Treaty.
India has entirely changed its position on the Proposed Treaty for the Protection of Broadcasting Organisations (the Broadcasters Treaty) at the recently concluded 34th Standing Committee on Copyright and Related Rights (SCCR). The Broadcasters Treaty (BT) is an international legal instrument protecting the rights of broadcasting organisations. It has been negotiated for 18 years now at the World Intellectual Property Organization (WIPO) in Geneva, Switzerland. Within the precincts of WIPO, no other intellectual property (IP) treaty has witnessed such protracted negotiations as the BT. The negotiations have been prolonged thus, primarily because of a political stalemate on key provisions.
How has India’s position changed?
In the last four SCCRs, India had opposed the inclusion of post-fixation rights in the BT because it was beyond the mandate of the 2007 general assembly. However, during the informal session of the 34th SCCR, it explicitly expressed its support for the mandatory protection of a specific category of post-fixation rights. Since the position expressed during the informals cannot be reported, the author cannot reveal specific details regarding India’s position. What is important is that India, by making its position clear on this critical issue, has indicated to other delegations that it is perhaps ready to endorse a strong BT. Prior to the 34th SCCR, delegations such as Japan and the US were keen to know about India’s position on the mandatory protection of post-fixation rights to formulate their own position.
What are post-fixation rights?
Post-fixation rights – better known as the making available right – is the right of the broadcaster to make their content available online, by video on demand (VOD) or a catch-up service. Such a right is usually granted by the copyright owner by way of a license. Therefore, the making available right is not an inherent right of the broadcaster but that of the copyright owner.
It is because of a lack of this conceptual understanding that many delegations, particularly from the Asia-Pacific group have opposed the inclusion of post-fixation rights in the BT. They have argued that it would grant the broadcaster a right which actually belongs to the copyright owner.
This is a fallacious argument. The BT does not (and cannot) grant the post-fixation right to the broadcaster. The treaty strives to protect against international online piracy. If the broadcaster has post-fixation rights – which is purely a contractual issue and not the subject matter of the treaty – it essentially means that it should have an independent right to sue the international pirate. Without this right, the broadcaster has no legal protection against piracy.
At a time when broadcasters worldwide are increasingly developing a robust catch-up and VOD service to serve their audiences, it is absolutely imperative that their rights are safeguarded against the hands of potential pirates.
What led India to change its position?
Apart from the opening statements, India did not make any interventions, either during the informals or in the plenary, in the last four SCCRs. Therefore, this makes the timing and reasons for its changed stance on the BT particularly noteworthy.
One plausible reason for this could be the recent shift of the Indian Copyright Office from the Ministry of Human Resource Development (MHRD) to the Department of Industrial Policy and Promotion (DIPP) which falls under the Ministry of Commerce and Industry.
With respect to IP policy, the DIPP is known to have better coordination with other government ministries and departments. Plausibly, the DIPP was able to reach out to the Ministry of Information and Broadcasting and Prasar Bharati – India’s public broadcaster. Both were, until recently, oblivious to discussions related to the BT, even though they are the primary government entities that should have a say in the negotiations.
The release of the National Intellectual Property Rights Policy in May, 2016 could be another reason behind India’s changed stance. While the policy was still pending, the government could not have taken a firm stand on any international copyright issue.
Why is India’s position important?
India’s position gives other delegations – particularly those in Group B such as Japan, US and the EU – much awaited clarity on India’s position, which is decisive in determining the fate of the BT. Secondly, it may also be decisive in determining India’s role in multilateral international copyright norm setting. Barring the Marrakesh Treaty, a majority of the international copyright treaties have been steered by developed countries, particularly the US and the EU, while India has played an insignificant role. Therefore, it is an opportune moment for India to become a pioneer in international copyright norm setting. Whether India will play a leading role in brokering the treaty out of a stalemate remains to be seen.
Owing to the Donald Trump administration’s cynicism for any UN related multilateral process, the US has been reluctant to make any progress with the BT. However, substantial time, energy and resources have been spent on the negotiations. To prevent the entire process from getting frustrated, the international community needs to move forward with India taking the leading role.
Seemantani Sharma is an intellectual property lawyer.