6
CopyrightNews
ISSUE 24
IMPROVING THE COPYRIGHT LEGAL FRAMEWORK
FEATURE
In 1996 aer WIPO member states agreed
on the WIPO Copyright Treaty and the
WIPO Performances and Phonogram Treaty,
broadcasters felt le behind and advocated for
beer protection in light of the technological
developments.
ese two treaties, popularly known as
internet treaties, set down international
standards aimed at preventing unauthorised
access to and use of creative works on the
Internet or other digital networks.
e process of updating the broadcasters’
rights in the digital environment was
introduced in Manila, Philippines, at
the WIPO Worldwide Symposium on
Broadcasters’ Rights in 1997. Discussions on
the protection of broadcasting organizations
commenced in 1998.
e main aim of the new treaty was to
extend the Rome Convention protection of
broadcasting organizations, who are holders
of related rights, to cover digital transmissions.
In addition, it intended to provide them with
certain distinct rights with respect to their
transmissions, separate from copyright in
the broadcast content. is was in response
to the digital and other new technologies and
the increasing use of the Internet.
Digital migration
Kenya migrated to the digital platform in
December 2015. is treaty is important
to Kenya as it will help deal with the digital
dilemma resulting from these technological
advancements. Kenya Copyright Board
(KECOBO) has been representing Kenya in
negotiating the treaty.
ere has been a broad agreement in
principle that broadcasters ought to have
an updated international protection from
signal the. WIPO’s SCCR was tasked with
the responsibility of coming up with a new
dra treaty that would be acceptable to all
or most WIPO members. Unfortunately,
member states have yet to agree on an
international instrument. In 2007, albeit not
to the satisfaction of everyone, it was agreed
that protection be signal-based, to ensure
that broadcasters are not inevitably granted
additional rights over broadcast content.
e treaty acknowledges the profound
impact technological development has had
particularly in ICT. is development has led
to increasing possibilities and opportunities
for unauthorised use of broadcasts both
within and across borders. e treaty
also stresses the direct benet to authors,
performers and producers of phonograms
in relation to protection against piracy of
broadcasts, containing their works. It is,
however, agreed that protection granted
under the treaty shall leave in place and
shall not in any way aect the protection
of copyright or related rights in program
material contained in the broadcasts.
Forward thinking treaty
Some member states including the African
group and the United States have, however,
recognised the need for the treaty to be
forward-thinking, technologically neutral
and principled in addressing all current and
potential challenges for digital and online
technologies.
It is apparent that broadcasters and some
states are pushing for protection for all means
of transmission of signals irrespective of the
technology used. is kind of protection
would cover new technologies as they arise
such as digital programme recording devices,
on-demand video services and Internet TV
which can transmit programmes not only to
typical televisions but also to computers and
mobile devices.
Some member states and broadcasters
propose provisions that would outlaw the
breaking of anti-piracy “locks” on digital
signals, such as encryption and “tagging”.
is would in eect restrict content that
can be viewed on specic equipment hence
potentially blocking legitimate uses of
broadcasts.
Rome Convention
e Rome Convention already grants
exclusive rights to broadcasters for 20 years
to authorize rebroadcasting, xation /
recording, reproduction and communication
to the public of their broadcasts. Broadcasters
want the new treaty to extend and update those
rights particularly to prevent unauthorised
re transmission of their programmes over
the Internet. is would place broadcasters’
rights at par with the WIPO internet
treaties which takes into consideration
new technological developments. Giving
broadcasters additional range of exclusive
rights may hinder access to copyrighted
material by requiring authorisation not
only from the copyright owner of content
but also the broadcaster. Some countries
including the 27-member European Union
have relevant domestic legislation providing
for protection of domestic broadcasters but
this does not provide any protection against
foreign piracy. Generally, in the larger part of
the world it appears to be legal to re transmit
a broadcast over the Internet without seeking
permission.
Giving broadcasters additional rights would
in eect create an additional burden to third
parties including users hence hindering
access to copyrighted material.
Exclusive rights
Further, giving broadcasters exclusive
rights over their broadcasts could lead to
privatization of material which is in the
public domain. e focus of the proposed
treaty should be on providing broadcasting
organizations with the rights to prevent
piracy of content-carrying signals. Any
enhancement of those rights beyond
prevention of signal piracy would be contrary
to the purpose of the treaty.
WIPO member states generally agree that
some limitations and exceptions should be
permied. Limitations are already allowed
under the Rome Convention for use in news
broadcasts and for education and scientic
research. e agreed limitations are similar
to those relating to copyright protection in
some national laws including Kenya such as
personal use and non-commercial use.
Some member states want the protection to
last for 50 years. is is in line with the term
of protection already granted to performers
and producers of sound recordings and
broadcasters in the European Union. Others,
however, want protection for a maximum of
20 years similar to that provided for under the
Rome Convention and TRIPS agreement. If
broadcast and subsequent rebroadcasts are
granted protection for a specied period
of time, there will be a real risk that any
rebroadcast would potentially activate a
new term of protection, leading to perpetual
protection.
According to the US Congress, consumers
are beginning to chafe at copyright owners’
including broadcasting organisations’ use
of digital technologies to prevent or deter
copying and other unauthorised uses of
protected works.
Why Protecting Copyright in Broadcast Industry isn’t a
Walk in the Park
By. Paul Kaindo