Protecting broadcasters in the digital era

Since the 1960s, the development of transmission technology and receiving equipment has caused broadcasting to evolve considerably. New ways of distributing services have been created as well as new types of programs and services. Significant increases in channel capacity have enabled broadcasters to offer the public a larger choice of scheduled programs. The development of cable networks and broadcasting satellites has opened up a greater number of signal transport options, and satellite technology has increased the global dimension of broadcasting. The massive ongoing conversion to digital transmission of programs and content is creating countless opportunities for efficient and cost-effective delivery of high-quality content and for interoperability with other electronic media. In the digital environment, however, broadcasters are facing a severe problem of signal piracy. In view of these and other challenges arising from the evolution of broadcasting, WIPO’s member states are working to develop an updated international legal framework that addresses present-day operating realities. The following interview with Ingrid Deltenre, Director-General of the European Broadcasting Union (EBU) offers a broadcaster’s perspective on the issue.

Radio and TV broadcasters are critically important in
developing and sustaining an informed and engaged society.
The EBU and other broadcasters around the world are
convinced of the urgent need to update the rights available to
them. (Photo: EBU)

Can you explain why the rights of broadcasters need to be updated?

The current international legal framework has not been updated since 1961, and is not proving effective in tackling the rampant piracy of broadcast signals that has become a global “mass market phenomenon.” In August 2012, a New York Times article entitled “Internet Pirates Will Always Win”, noted that, according to weblog Torrent Freak, the top pirated TV shows are downloaded several million times a week. Losses from broadcast piracy are substantial. In Canada, for example, loss of revenue to the television industry from satellite theft alone was estimated in 2000 at over US$500 million. In the Asia-Pacific region, Pay-TV piracy grew from an estimated US$952 million in 2004 to some US$1.06 billion in 2005, reflecting a continuing trend.

Signal piracy is not just a problem for broadcasters. By undermining the investments made by broadcasters, inadequate protection eventually undermines the public interest, making it increasingly difficult for broadcasters to meet rising consumer demand for time and place-convenient access to broadcast signals, such as through hybrid TVs, tablets, smartphones and the like. The WIPO-administered Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations protects against unauthorized re-broadcasting, but only if this is done via “wireless” means and at the same time as the initial broadcast. It is, therefore, not a sufficient means to combat piracy of broadcasts on the Internet or any other digital platform.

Protection of rights, however, is only one side of the coin. Like many other right holders, broadcasters want to make as much content available as possible via legal offers, through linear and non-linear means (i.e., broadcasting (over any platform) and on-demand services), to accommodate time- and placeconvenient access by consumers via any platform and on any type of receiving device. As content users, EBU broadcasters also make every effort to propose solutions that simplify the “clearance” of rights so that our programs can be lawfully transmitted and viewed using the growing range of available consumer devices. However, the bottom line is that as long as the protection of broadcast signals remains inadequate, the ability of broadcasters to deliver diversified programming is endangered.

What would be the consequences of business as usual?

For broadcasters, piracy means the loss of compensation from entities that retransmit their signals, such as cable or IPTV operators. It also means loss of revenue from advertising (in particular where it has been stripped from the program), and possible reduced technical quality. Broadcasters pay billions of euros to produce, or acquire and distribute content of the highest technical quality, and have paid tens of billions more to convert analog transmission systems to digital systems. Without appropriate protection of the broadcasting signal, the returns on this significant investment are under threat.

There are other far-reaching, significant consequences, for example, in broadcasting sports events. Broadcasters pay hundreds of millions of euros for exclusive rights to broadcast these events. When  such broadcasts are transmitted without authorization, over the Internet for example, the pirate is unfairly appropriating part of the value of the program and diminishing the value of the broadcaster’s rights, its advertising revenue, its sublicensing income and reputation. These are serious consequences for broadcasters and for the general public, insofar as it puts the funding of sports events, including toptier global events, at risk.

It is widely recognized that radio and TV broadcasters are critically important in developing and sustaining an informed and engaged society. They play a crucial role in fulfilling development objectives, such as ensuring the public’s right to receive a diversity of independent information. They also foster democratic and other fundamental social values, such as basic freedom of expression, by providing platforms for citizens to publicly air their concerns, and offering quality educational programming. Public service broadcasters, in particular, serve the needs of minority and other interest groups, including those with low levels of literacy and those living in remote locations. Broadcast piracy undermines investment in these programs. As such, it not only affects creators who contribute to the production of the programs but also weakens the regulatory policy that underpins them.

How do you respond to this view?

The EBU and other broadcasters around the world are convinced of the urgent need to update the rights available to broadcasters – first and foremost because of the rising levels of piracy facing the industry. A recent Study by international consultants, Detica, jointly commissioned by Google/PRS, concluded that “live television today is the fastest-growing segment of copyright infringement.”

Second, those who oppose updating the rights of broadcasters would not appear to grasp why broadcasters need protection in the first place nor the nature of the protection that currently exists. Broadcasters are responsible for planning, producing or acquiring, scheduling and transmitting their daily output of programs. Enabling the general public to enjoy radio and television programs (via a program-carrying signal) requires major technical, organizational and financial investment by broadcasters.

Third, broadcasting makes a major contribution to the economy. A WIPO study produced in 2012 on the economic contribution of the copyright industries found that broadcasting is the third largest of the core copyright sectors, after press/literature and software. The broadcasting sector’s contribution to the economy is more than twice that of the music sector and more than three times that of the film industry.

In order to be able to protect and build on their sizeable investment, broadcasters must have the proper means to authorize or prohibit use of signals, both in upstream and downstream markets. This means that the broadcast signal must be protected from the moment it is created (as a pre-broadcast signal) through to its primary use to broadcast, or retransmit, programs and against any unlawful secondary exploitation. The Rome Convention, concluded in 1961, recognizes this need. To date, over 90 countries have acceded to or ratified it. However, while the rights of performers and producers of phonograms have been internationally updated to address the new operating realities of the digital era, a similar exercise for broadcasters is yet to be concluded.

How do you respond to claims that new rights for broadcasters would impede freedom of expression, stifle innovation in consumer devices or create additional problems for Internet Service Providers (ISPs) or Creative Commons (CC) licencees?

These concerns are not founded. In Europe, for many years now, broadcasters have enjoyed a fairly high level of protection, and these types of issues have never been raised and have never presented any serious problems. With respect to ISP liability, when an ISP is notified of an infringing work, the process of take-down is the same whether the infringement involves an MP3, video or text file. The same  process would apply for infringing broadcasts. If ISPs are exempted from liability in relation to the acts of their users, this exemption would remain in place under new arrangements on broadcasting rights. The responsibility of an ISP regarding the unauthorized use of a broadcast would remain the same as it currently does for content. The same is true for CC licenses. These will not be affected by a new legal framework. Any CC licence that includes a broadcast under today’s legal rules would continue to be possible under new arrangements.

Similarly, broadcasters do not believe that the legitimate private use or development of time-shifting devices such as digital video recorders would be harmed, because

• the proposed Treaty does not require any broadcaster to protect its broadcasts with technical protection measures; and
• the rights granted to broadcasters would not include the control of private home use to the extent it is covered by limitations or exceptions contained in all copyright-related international treaties administered by WIPO.

Any country in which the national copyright law provides for a private use exception with respect to copyright-protected material is (and should be) entitled to apply exactly the same exception to broadcasts. If the exceptions that apply to broadcasts were to be different from those that apply to content, then the former would ultimately be ineffective because protection of content is normally broader and longer than for broadcasts. For these reasons, and insofar as the core activity of broadcasters is to provide reliable, high-quality information and as broadcasters play a unique role in giving voice to citizens’ concerns, the suggestion that better protection for broadcasters could impede freedom of expression is untenable.

Would a new treaty on broadcasting affect other right holders, such as producers or performers?

A new treaty would not impinge on the rights of authors, performers or producers. On the contrary, all those with rights in the content of broadcasts would automatically benefit from strengthening the rights of broadcasters. If a broadcaster can more easily obtain an injunction against unauthorized use of its broadcast signal, this also puts an end to the unauthorized use of the program content. Those with rights in the content of a program will naturally continue to be able to exercise their own respective rights against pirates, as these remain fully independent from those of broadcasters. In cases where broadcasters wish to grant a license to a third party, they can only grant rights that they themselves hold. Use of the programcarrying signal will not be possible, therefore, if those with rights in the content do not wish to license the material contained in a particular program. At the same time, film producers remain entirely free to license their own rights to any third party, even on the broadcasters’ own territory, as long as such a licensed use does not conflict with the rights granted by that producer to the broadcaster(s) concerned. However, this is a contractual matter, independent of any proposed new arrangements.

In 2007 many international non-governmental organizations (NGOs) representing authors, music publishers, performers, phonogram and film producers issued a “Joint Position of Right Holders”. In this statement, a wide range of right holders express support for a treaty that would give broadcasters effective tools to address the core issues in today’s technological and business environment. Broadcasters and other right holders are in the same boat on this issue.

From the perspective of broadcasters, an updated international framework for broadcasting organizations is crucial if they are to continue to meet the growing consumer demand for time- and place-convenient access to high-quality broadcast material.