IFJ's Response to the European Commission public consultation on the "Draft Non-paper on the WIPO Treaty on the Protection of Broadcasting Organisations" dated 8 March 2007

The International Federation of Journalists (IFJ) is the world's largest organisation of journalists, representing around 500.000 members in more than 100 countries. At the European level, the IFJ is represented by the European Federation of Journalists. The EFJ is Europe’s largest organization of journalists, representing about 260,000 journalists in over 30 countries. Both the IFJ and the EFJ defends press freedom and social justice through strong, free and independent trade unions of journalists and calls for journalists and photographers to be recognised as authors of the work they create, control further use of their work and receive an equitable remuneration for it.


The IFJ has followed closely the negotiations of the WIPO Treaty for the protection of broadcasting organisations. As a non-governmental organisation, it regularly attends the sessions of the SCCR. The IFJ recognises the necessity to protect broadcasting organisations against signal piracy in order to guarantee the quality and integrity of broadcasting programmes. However, it is concerned that the rights granted to broadcasters would go beyond the protection of the signal, hampering the rights of authors and performers over their works.


The IFJ thus welcomes the European Commission’s decision to offer the possibilities to all interested parties to send their written observations regarding the WIPO Draft Non-paper on the Treaty on the Protection of Broadcasting Organisations dated 8 March 2007.




On the Introductory Note


The IFJ fully supports the draft non paper’s endeavour to “lend full recognition to the «signal-based approach»” (point 4). The IFJ believes that the scope of the future treaty should only extend to the protection of the broadcasting signal. To grant rights going beyond this protection would compromise the rights of other rights holders.


However, the IFJ regrets the draft non-paper’s wish to accommodate both the countries who want to grant exclusive rights to broadcasters and those who want a narrower and specific protection against signal theft (point 5). Granting broadcasters exclusive rights would conflict with journalists’ and other authors’ exclusive rights over the broadcast content. The IFJ believes that a right to prohibit would be sufficient to fight against piracy of the signal and to maintain the balance between broadcasters and other rights holders.


The IFJ supports the exclusion of post-fixation rights from the treaty (point 7): such rights would clearly cover the broadcast content and would challenge the rights of journalists over this content. The IFJ regrets that the interests of rights holders are not mentioned in the list of interests justifying the absence of protection of post-fixation uses. The IFJ is also deeply concerned that point 5 mentions the possibility to add a provision “allowing for optional wider protection, notably of post-fixation rights”.




On the General Provisions


- Article 2: Object of protection


Article 2 (3) provides that “the provisions of this Treaty do not give rise to any rights in the programs that are transmitted by broadcasting organisations”.


The IFJ supports the inclusion of a provision confirming that the protection of broadcasting organisations should not compromise the protection of other rights holders.


However, the IFJ prefers the stronger formulation and the number one position of the provision contained in the draft SCCR/15/2 (article 6(1)):


“The protection granted under this Treaty extends only to signals used for the transmissions by the beneficiaries of the protection of this Treaty, and not to works and other protected subject matter carried by such signals”.



- Article 3: Scope of application


The IFJ supports the exclusion of transmissions over computer networks (webcasting) from the scope of the treaty.



- Article 5: Definitions


The IFJ supports these narrow definitions in accordance with the signal-based approach.


However the IFJ does not believe it is necessary to include a definition of ‘communication to the public’ given that this term is not further used in the text.



On the Substantive Provisions


- Article 8: Protection of Broadcasts


The IFJ first welcomes the fact that the granted rights are limited to the ones laid in article 13 of the Rome Convention. However, concerning the reproduction right, the IFJ believes that the wording should be more restrictive, in accordance with article 13 (c) of the said Convention:


“the reproduction: (i) of fixations, made without their consent, of their broadcasts;

(ii) of fixations, made in accordance with the provisions of Article 15 (limitation and exceptions), of their broadcasts, if the reproduction is made for purposes different from those referred to in those provisions.”


The IFJ also regrets the exclusive nature conferred to these rights. As mentioned earlier, granting broadcasters exclusive rights would conflict with journalists’ and other authors’ exclusive rights over the broadcast content. The IFJ believes that a right to prohibit would be sufficient to fight against piracy of the signal.


The IFJ fully supports the exclusion in this non-paper of the post-fixation rights granted to broadcasters in previous drafts (right of distribution, right of transmission following fixation, right of making available of fixed broadcasts and right of communication to the public). As mentioned above, such rights would clearly cover the broadcast content and would challenge the rights of journalists and other authors over this content.



- Article 10: Protection of Encryption and Information Relevant for Protection


The IFJ has strong reservations regarding TPM. TPM can help fighting piracy of the broadcasting signal – but can also conflict with exceptions for quotations and reporting on current events. Moreover, their use must be agreed to by all rights holders and should not be subject to the sole authorisation of broadcasters.



- Article 11: Means of Implementation of the Protection


The IFJ denounces article 11 (i) which provides that the means by which Contracting Parties adequate and effective protection can include “protection by means of the grant of a copyright or other specific right, such as related right”. Copyright can only be granted to authors. Broadcasters can only be granted a neighbouring right, not copyright.




On the Administrative and Final Clauses


- Article 20: Eligibility for Becoming Party to the Treaty (unchanged, see article 27 SCCR/15/2)


Article 27 of the draft SCCR/15/2 provides for various alternatives. The IFJ fully supports the alternative AA (1) which makes eligibility to become party to the treaty conditional upon being party to the WCT and WPPT treaties.




Conclusion


The IFJ supports the narrow, signal-based approach by this draft non-paper. In particular, the IFJ welcomes the exclusion of the post-fixation rights from the proposal and hopes that this approach will be maintained.


The IFJ believes that some further modifications of the draft proposals are required to ensure that the balance is set right between broadcasters and other rights holders. In particular, a right to prohibit would be sufficient to fight against piracy of the signal and membership to the future treaty should be subject to membership to the WCT and WPPT treaties.




Brussels, 23rd March 2007