KEI intervention on definition of broadcasting

WIPO SCCR 31 is having a text based discussion of the language for a proposed broadcasting treaty. The meeting is open to NGOs, instant transcripts are streamed over the Internet, and the proceedings are webcast. I was allowed to make to technical interventions this afternoon on the definitions. This is a slightly edited version of my second intervention, on the question of whether or not to have separate definitions for broadcasting and cable casting.

Thank you, Mr. Chairman. I wanted to speak to the issue of whether you have separate definitions for broadcasting and cablecasting.

From our point of view, it is important and useful to have separate definitions. At some point, you may want to consider whether or not in implementing the treaty a country would have the flexibility of only applying the treaty to over the air broadcasting, partly because for some, including the United States, but other countries as well, there are very different regulatory regimes that exist for over-the-air television and radio than apply to cable systems.

If you look at the rights of the treaty that are proposed, which are the broadcasting rights, they go to people that schedule the content. In the area of cable systems, that is often not the local company that provides services to consumers. Rather, the beneficiary of the right is often one of the gigantic global companies that owns lots of channels.

In the GRULAC paper that was presented for this meeting on copyright in a digital environment, the one that will be discussed on Friday, the issue of the concentration of ownership of large international firms that control much of the distribution of digital content has been raised a issue that WIPO should address.

The Rome convention, supposedly what is being updated here, was designed for free over-the-air services. And just in terms of this treaty, the over-the-air broadcasters have the strongest case, that they are providing a public service that no one pays for. Things like cable services are just businesses, where everyone has to pay to get the service and they are subject to all kinds of special laws to make it so that you don't get the service if you don't pay.

Fee based cable services are quite a bit different than like a radio or television thing that is available to the public free for everyone. I think that the best case for this treaty has been made by the over the air television and radio operators, and I think the people that run the cables to people's home haven't even showed up and they haven't even really asked for this. The only people from the cable industry trying to get this are big Hollywood type industries that own multiple cable channels, and see themselves as the beneficiary in that respect.

In that sense, I would think having the multiple definitions allows you greater flexibility as you move forward, for those countries that want to apply this more narrowly rather than broadly to everything in sight. Actually trying to narrow the beneficiaries to this treaty is going to be beneficial if you ever try to get this thing become a treaty. Thank you.