It has been nearly 20 years since an international treaty for the protection of broadcasting organisations (the Broadcasters Treaty) has been deliberated at the World Intellectual Property Organisation (WIPO). However, it is yet to see the light of the day due to the political stalemate on key provisions. With the recently concluded 33rd Standing Committee on Copyright and Related Rights (SCCR), I will dispel some of the concerns voiced in past by India and the civil society organisations against the Broadcasters Treaty (BT).
Due to the rapid technological advancements in the broadcasting sector, it is undisputed that the existing legal framework for the protection of broadcasting organisations dating back to 1961 is outmoded. This framework was drafted at a time when cable network was at its inception and the term “Internet” was unheard of. In 1996, when the WIPO member states agreed for the WCT and the WPPT, the broadcasters also started demanding a revised protection for their new technologies. At the first SCCR in 1999, an overwhelming majority of member states stressed upon the need for an urgent revision of the existing international norms for the protection of broadcasting organisations. A consensus was reached at the 2007 WIPO General Assembly where the member states agreed to draft a new treaty based on a “signals based approach”.
Despite this consensus, critics have argued that no objective reason for the BT has been established. However, as indicated below the gaping holes in existing international and national frameworks firmly establishes the raison d’etre for the BT.
Why does India need the BT?
As per a 2011 study conducted by the Cable & Satellite Association of Asia, Indian broadcasters incurred a loss of $1.4 billion that year due to signal piracy. While there is no recent empirical study quantifying losses to the Indian broadcasting industry, it is widely acknowledged that signal theft is the major form of revenue leakage to the broadcasters. Not only does signal piracy lead to loss of revenue streams to the broadcasters, it is also known to have other unintended consequences such as money laundering and violation of foreign exchange regulations. In this vein, protecting broadcaster’s signals from the preying eyes of pirates becomes imperative.
Critics have argued that existing international instruments such as the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations and the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellites afforded sufficient protection to broadcasters against signal theft. Thus, making the need for the BT redundant. Any prudent international intellectual property lawyer would know that neither does the Rome Convention protect the pre-broadcast signals of broadcasting organisations nor does it recognise post-fixation rights.
What are pre-broadcast signals?
Pre-broadcast signals, which are programme-carrying signals not intended for public reception, are as of date not protected under any international legal instrument (except the Brussels Convention under which there is very limited protection) or under the Indian Copyright Act, 1957.
So, for instance, an event organiser records a classical musical rendition in a concert hall in Bhopal and transmits it to Doordarshan’s transmitter in Delhi. If during the course of transmission, the signal is pirated, it will not be protectable subject matter either under the Act or under the Rome Convention. This situation becomes all the more complex when the signal is recorded and intercepted outside India.
A pre-broadcast signal is a potential gold mine for a pirate. Without any advertisements, trademark (logo) or any other identifying graphics, a pre-broadcast signal is more susceptible to piracy than a broadcast signal. This is because it can be easily pirated without needing additional technology. In contrast, for pirating a broadcast signal, the pirate has to get rid of the advertisements, trademark (logo) or any other identifying graphics. This raises a fundamental question about the silence on pre-broadcast signals under the Rome Convention. A plausible reason could be that perhaps the piracy of pre-broadcast signals was not rampant during the time the Rome Convention was signed and thus not considered worthy of protection.
What are post-fixation rights?
Post-fixation rights, which protects the right of broadcasters to control the subsequent usage of its broadcast is important from the perspective of deterring online pirates. Often, pirates place the recorded (fixed) broadcasts of televisions shows, movies and dramas on illegal platforms without seeking the consent of the broadcasters. This adversely impacts a broadcaster’s licensing revenue. Opponents of the BT have opined that granting post-fixation rights to broadcasters would impede access to knowledge as broadcasters would retain rights to both the underlying content and the broadcast. This objection to the treaty emanates solely from a conceptual misunderstanding; where there is a commingling between “copyright” and “neighbouring rights”. While, copyright protects a work’s author, neighbouring rights protects those who are not technically authors. Usually, these are the rights of performers, makers of sound recordings and broadcasting organisations involved in the acquisition, production, scheduling and transmission of the signal. Thus, the underlying content of the broadcast is not and cannot be the subject-matter of the BT (being a subject matter of “copyright” and not “neighbouring rights”).
A post-fixation right would merely grant the broadcasting organisation a right over its “broadcast” after it has been broadcasted (or recorded or fixed). For any subsequent use of the “broadcast”, the licensee will have to approach the broadcaster. However, the underlying copyrightable content can still be procured from the original source, which has absolutely nothing to do with the broadcaster unless the broadcaster is also the content creator. In the event, the subject matter of the underlying content is a public domain work (for example news), an expansive clause on limitations and exceptions would come to rescue. Recurrently, during the BT deliberations at the SCCR, the Indian delegation has emphasised upon the inclusion of limitations and exceptions, which is a legitimate concern for all developing countries. A Beijing Treaty or the WCT or the WPPT like language on limitations and exceptions, where the issue is reserved for national legislation would be ideal even though one may be tempted to see substantive provisions delineated in the BT. The latter option would be ineffectual since any limitations and exceptions under it would have to be in tandem with the limitations and exceptions for the content. Say, for instance, private use is recognised as an exception under the BT but not under a country’s copyright law. This would mean that even though a third-party is permitted to use the broadcast, the use of the content can still be prohibited by the copyright owner, rendering the broadcast meaningless. For more than a decade, the European Union has recognised a broadcaster’s post-fixation rights and has so far not throttled access to copyrightable works. Hence, this displaces any apprehensions emanating from the recognition of such rights. In fact, non-recognition of broadcasters post-fixation rights would deter broadcasting organisations from making such public domain works available to all via their broadcast. Thus, this would impede access to knowledge.
Further, the Rome Convention which dates back to antiquity does not protect retransmission by cable and on-demand broadcasts on the internet. Moreover, only Berne Union members or members to the Universal Copyright Convention can become signatories to the Rome Convention. In this situation, a broadcaster in a non-Rome Convention country has no protection for its foreign broadcasts; making the need for a standalone international legal instrument for broadcasters signals imperative. Lastly, given its characteristically less international appeal (with 92 contracting parties out of 189 WIPO member states), there is practically no international harmonisation for the protection of broadcasters signals. The Brussels Convention, with an even lesser international appeal (37 contracting parties), protects only point-to-point transmissions of signals via satellite. Thus, restricting the beneficiaries only to satellite broadcasters, which is grossly inadequate considering that India’s public broadcaster – Doordarshan operates on a free-to-air basis. Most importantly, India is not a signatory to either the Rome Convention or the Brussels Convention.
Indian Copyright Act and Protection of Broadcasting Organisations
Arguments on the Act affording sufficient protection to broadcasters against signal piracy have been made. However, this is only half the story told. Neither does the Act protect a broadcaster’s pre-broadcast signal nor does it grant post-fixation rights.
Further, Section 40 A (1) of the Act extends protection to foreign broadcasters against signal piracy that takes place within India. However, similar reciprocity is unavailable to Indian broadcasters in many foreign jurisdictions. In this situation, Indian broadcasters are hapless victims of piracy taking place at international frontiers. This could also disincentivise Indian broadcasters from offering post fixation of their broadcasts on new media platforms such as the internet. The wide availability of pirated Bollywood movies on the internet, which is primarily watched by the non-resident Indians, causes substantial loss of revenue not only to Bollywood but also to the broadcasters.
Though anti-piracy techniques are effective for combating signal piracy, its steep price keeps it out of the reach of public broadcasters. While the investment required for a pirating a signal is as low as Rs 2,000 (for assembling a decoder and dish etc). This makes a clear case that more than the commercial driven private broadcasters, the BT is an “absolute must” for the public broadcasters. The recent launch of Mobile TV by Prasar Bharati indicates the technological feat it has accomplished. In this event, India and the civil society organisations should wholeheartedly support a forward-looking BT at the next SCCR; albeit not at the cost of national interest.
Seemantani Sharma is the Legal & Intellectual Property Services Officer at the Asia-Pacific Broadcasting Union in Kuala Lumpur (Malaysia). She holds an LL.M (IP) from the George Washington University Law School. Views expressed by the author in this article does not represent the views of her organisation.