Signal piracy: a threat to Asia-Pacific broadcasters

By Seemantani Sharma, Legal and Intellectual Property Services Officer, Asia-Pacific Broadcasting Union, Kuala Lumpur, Malaysia

The Asia-Pacific Broadcasting Union (ABU) is the world’s largest broadcasting union, serving an audience of around 3.5 billion people in approximately 72 countries. Its primary objective is to bring together the public service broadcasters and national broadcasting organizations of one of the world’s most diverse group of countries. Its membership stretches from Turkey in the west to Samoa in the east, and from Mongolia in the north to New Zealand in the south. ABU membership is also open to commercial broadcasters, provided they are national in character and produce a substantial amount of their own programming.

The countries that make up the ABU’s membership vary in terms of geography, socio-economic development, legal systems, ethnic composition, language and culture. In consequence, the commercial goals, scale of operations, technological prowess, breadth and scope of content production of their broadcasting systems and the way they are run are quite different. Of the eight regional broadcasting unions that exist across the globe, none is more diverse than the ABU. But Asia-Pacific broadcasters face a common scourge – the theft of their broadcast signals by unauthorized third parties.

How piracy affects broadcasters

While the battle against piracy in the areas of software, film and music has played out sensationally in the popular media and in academia and regulatory circles, piracy of broadcasters’ signals has received scant attention. Lack of awareness about the issue of signal piracy in the Asia-Pacific region is attributable to the absence of any realistic empirical assessment of both the scale of signal piracy in the region and the associated financial losses incurred by the broadcasting industry. The last study that sought to quantify the cost of broadcast piracy in the region was undertaken by the Cable & Satellite Broadcasting Association of Asia (CASBAA) in 2011. While that study put broadcast piracy at USD 2.2 billion for the year 2010-2011, it focused exclusively on losses to pay TV and did not include those incurred by free-to-air and public service broadcasters. There is clearly an urgent need to assess losses incurred by all types of broadcasters within the region and beyond, but doing so is an expensive and time-consuming undertaking.

Notwithstanding the need for more detailed analysis of the current situation, evidence suggests that broadcast piracy affects small and large broadcasters alike wherever they operate. In fact, broadcasters in developing and least developed countries suffer the greatest harm from signal piracy because they often do not benefit from the economies of scale enjoyed by their counterparts in more mature economies.

Signal piracy makes it significantly more difficult for public service broadcasters to sell their local content in foreign markets, especially when viewers in those markets already have access to the content through illegal websites.

Why is this a big deal, you may ask. Well, without the revenues generated by international sales, broadcasters are hamstrung in their ability to invest in the acquisition, production, scheduling and transmission of quality local content. Moreover, beyond the economic losses suffered by broadcasters and governments alike, evidence also suggests that signal piracy may be linked to other illegal activities including money laundering and violation of foreign exchange regulations.

Broadcast piracy and sport

The opportunity, and indeed the right, to broadcast high-profile sporting events live is a core income generator for traditional broadcasters. Signal piracy impedes the broadcasters’ ability to secure those rights and can also jeopardize the financial sustainability of sporting events.

Sports broadcast piracy is rampant across the Asia-Pacific region. Although unauthorized sports clips have also been detected on live video streaming apps such as Meerkat and Periscope in recent months, unicast (when a broadcast is transmitted by one sender to a receiver within a network) and P2P (peer-to-peer) remain the two most prominent forms of illegal broadcasting.

China Central Television (CCTV), China’s state television broadcaster, has suffered repeated piracy of its broadcasts, including of sporting events both within China and beyond. As the sole provider of broadcast content for the 2008 Beijing Summer Olympic Games, CCTV successfully combated the unauthorized retransmission of sports telecasts over the Internet. This, however, was not the case during the 2016 Rio Summer Olympic Games. During the closing ceremony of the latter, CCTV’s broadcasts were pirated at a rate of around 35 percent via online video websites.

This is just one example of the experiences of one broadcaster in the region. Other broadcasters also suffer a similar plight.  For example, in Hong Kong (SAR), the signals of the free-to-air broadcaster, TVB, are routinely pirated, with unauthorized, perfect digital copies of their programming available almost immediately  on Chinese web servers for  audiences in mainland China. Even if pirates are sued in the Chinese courts, the legal costs of doing so outweigh the damages recovered, making the threat of legal action ineffective.

And in India, due to increasing consumption of digital content, sports broadcasters’ rights are regularly undermined by unauthorized online transmission of cricket matches. The problem is particularly serious for Star India, the official broadcaster for Indian Premier League. During the 2017 season, indiantelevision.com estimated that matches were illegally telecast by more than 1,700 unique URLs via 211 unique servers, 122 pirate streams, 51 hosting sites and 23 infrastructure providers via remote servers.  

Assistance from an unusual source

A recent ruling by a United States bankruptcy court in Florida offers some scope for optimism. In October 2017, the US Bankruptcy Court for the Middle District of Florida held that bankruptcy cannot be used as a shield from monetary liability for broadcast piracy. In this case, a retailer of Internet Protocol television (IPTV) streaming devices with unauthorized channels was found guilty of the unlawful distribution of television content broadcast by CCTV and the Hong Kong (SAR)-based TVB on its TV pads. In a lawsuit which began in 2015, the court had ordered the retailer to pay USD 55 million in damages. But in a move to dodge the fine, the retailer filed for bankruptcy.

Although CCTV and the other plaintiffs were successful in suing this particular pirate in a foreign jurisdiction, few public service broadcasters in the region have the financial clout to do so, especially those operating in developing and least developed countries.

Insufficiency of the law

The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, administered jointly by the World Intellectual Property Organization (WIPO), the International Labour Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO), is the principal international legal instrument protecting the rights of broadcasters. But, concluded nearly 60 years ago in 1961, it is the product of an age in which cable network was at its inception, the use of satellites for broadcast transmission was unheard of and the Internet was not even a fanciful idea.

The Rome Convention has limited international appeal – only 93 of WIPO’s 191 member states, and just 17 countries from the Asia-Pacific region, have signed up to the treaty – and falls short of effectively addressing the interests of broadcasters in the 21^st century on a number of counts. For example, it does not protect a broadcaster’s pre-broadcast signal. Pre-broadcast signals are program-carrying signals used to transmit content from one broadcaster to another. They are not intended for public reception. Stripped of advertisements, trademarks (logos) or any other identifying graphics, a pre-broadcast signal is more susceptible to piracy than a traditional broadcast signal.

Moreover, the Rome Convention only protects simultaneous rebroadcasts of a broadcaster, because when the treaty was concluded relevant recording equipment simply did not exist. However, these days, pirates can easily acquire the technology to record a signal and relay it over multiple platforms including the Internet, cable and terrestrial TV, and all from the comfort of their own home.

From a legal perspective, within the Asia-Pacific region the Rome Convention is somewhat redundant as only signatories to the Berne Convention for the Protection of Literary and Artistic Works or the Universal Copyright Convention (UCC) can become signatories of the Rome Convention.

That means that unless countries like Afghanistan, the Islamic Republic of Iran, Papua New Guinea, Samoa and Timor-Leste sign up to the Berne Convention or the UCC, they cannot join the Rome Convention. As a consequence, broadcasters have no legal recourse open to them if their signals are pirated in those countries.

That is why a standalone international legal treaty that protects broadcasters’ rights against signal piracy is so urgent. Such a solution is all the more important at a time when broadcasters operate in an increasingly border-free world.

A need for urgent action

Because signal piracy is so rampant and adversely affects traditional regional broadcasters, and because the existing international legal regime falls short of what is required, the ABU is supporting international negotiations to update the current legal protection available to broadcasters under the Rome Convention so it is fit for the modern era. Policymakers have been grappling with this issue within WIPO’s Standing Committee on Copyright and Related Rights (SCCR) since 1998. But the ongoing evolution of broadcast technology means the industry is left exposed. Without effective legal remedies it cannot rein in those who misappropriate the means by which broadcasters are able to sustain their existence and thrive.

Notwithstanding variations in scale, traditional broadcasters the world over increasingly use the same technology. By that virtue, they meet the same fate at the hands of pirates.

Revenue generated by traditional broadcasters is directly proportionate to their ability to invest in the development and procurement of quality content. For developing and least developed countries in the Asia-Pacific region, broadcasting (i.e. free-to-air and pay TV) remains the primary means of mass communication. If the legitimate rights of these broadcasters are not upheld, their ability to provide these services will be severely impeded and the citizens of these countries will have no choice but to resort to alternative platforms such as over-the-top (OTT) players, like Apple TV or Netflix, which are likely to become more popular in coming years. OTT players deliver audio, video and other media content over the Internet. The problem here is that given the digital divide that exists between developing and industrialized countries, the knowledge gap will deepen because those who do not have access to the Internet will not be able to access these new digital platforms.

Public service broadcasters in many countries in the Asia-Pacific region are dying a slow death. As these countries move toward the information society, they cannot afford to let their public broadcasters fall into decline.  Revenue generated by traditional broadcasters is directly proportionate to their ability to invest in the development and procurement of quality content. However, loss of revenues resulting from signal piracy impedes their ability to produce quality content.  As a consequence, in the long run, the general public loses out because viewers are   deprived of access to quality content and information.

Against this backdrop, an international treaty that balances the rights of all stakeholders is imperative. After 20 years of in-depth discussion, the time is now ripe to finalize an international treaty that offers broadcasters in all regions a fair and reasonable means of combating signal piracy and safeguarding their interests