The World Intellectual Property Organization (WIPO) recently published a new draft of the proposed Broadcasting Organizations Treaty as document SCCR/47/3 in preparation for the 47th meeting of the Standing Committee on Copyright and Related Rights (SCCR/47) in December 2025. The draft does not differ in its main provisions from previous drafts, and this raises questions as to whether the document fulfils the mandate given to the SCCR by previous WIPO General Assemblies.
Below we provides an analysis of the chair’s draft edits. We focus on the substantive changes in SCCR 47/3 as well as on the more controversial provisions, most of which are unchanged in this draft. The central question for the Broadcasting Treaty, in line with the 2007 General Assembly Mandate, is whether there is sufficient “agreement on objectives, specific scope and object of protection” to warrant a recommendation for a diplomatic conference. (WO/GA/34/16).
The 2006 GA mandated that the Broadcasting Treaty be “confined to the protection of broadcasting and cablecasting organizations in the traditional sense” and “based on a signal-based approach” (WO/GA/33/10, para 107, 2006). Key issues include whether the treaty should include any exclusive rights, rather than only general obligations to prevent piracy (similar to its current Art. 10 and to the substance of the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite); whether it should extend to rights of fixation and to “stored programmes”; whether to enable remuneration schemes for retransmissions; and how to broaden the limitations and exceptions to ensure that broadcast rights cannot prohibit uses permitted by copyright exceptions.
To download or print this analysis, see the pdf below.
| Updated Broadcast Treaty. New text in SCCR 47/3 in green. | Comments and Suggestions | ||
| 2. Definitions SCCR 47 added: 2.06 In the Draft Text, there is no definition of the term “broadcast”. The object of protection of the Treaty is the transmission of the programme-carrying signal, which constitutes the broadcast. The broadcast represents the output of the activity in which a broadcasting organization is engaged, namely “broadcasting”, which is already defined in item (a). Furthermore, the term “broadcast” is not employed in the Draft Text. (g) “stored programmes” means programmes, which a broadcasting organization owns or regarding which it has acquired transmission rights with the intention of including them in its linear transmission, or which have originally been transmitted in a linear transmission by a broadcasting organization, | For those that want to extend protections of the treaty to streaming on the Internet, a key challenge is how to achieve this goal while limiting any protection to traditional broadcasters rather than to streaming companies such as YouTube, Spotify, etc. The definition of a broadcasting organization applies to any organization that “takes the initiative and has the editorial responsibility for the transmission, …; the programmes of a broadcasting organization form a linear programme-flow.” “Linear program flow” means scheduled programming. Internet streaming companies often show some scheduled programming and thus could be considered covered broadcasting organizations. The definition of “stored programmes” attempts to limit application to more traditional broadcasters by requiring that such programs be owned or licensed “with the intention of including them in its linear transmission.” Most of the content from streaming companies is not intended to be included in a linear transmission. There is a policy question about why there is a need to cover stored transmissions at all. As the definition notes, such programs are normally either owned or licensed by the broadcaster, which then would have all copyright rights to combat piracy of the programs. Commenters have offered changes to restrict the scope of the treaty to traditional broadcasting. Hugenholtz (2023) proposes that the definition of covered broadcasts exclude transmission of stored programs on demand by covering only “simultaneous reception by the general public of a programme-carrying single, where the programmes are provided in a prescheduled and linear order.” This is similar to the Rome Convention, which defines “rebroadcasting” as “the simultaneous broadcasting by one broadcasting organisation of the broadcast of another.” Love advises adding that the signal be “from a single source point to multiple recipient points,” which would exclude on demand point-to-point transmissions. | ||
| Article 3: Scope of Application (2) The provisions of this Treaty shall apply as well to the protection of programme-carrying signals of the broadcasting organizations used in their transmissions when providing access to the public to the stored programmes of the broadcasting organizations.… (6) Contracting Parties may, in a notification deposited with the Director General of WIPO, declare that they exclude broadcasting organizations that exclusively transmit their linear programme-carrying signals by means of computer networks from the scope of application of this Treaty. Such notifications may be deposited at the time of ratifications, acceptance or accession, or at any time thereafter; in the last case, it shall become effective six months after it has been reposited. | The treatment of webcasters has long been a controversial issue in the negotiation, with some arguing that to be limited to traditional broadcasting the treaty should exclude application to webcasts that never make use of traditional airwave-based broadcasting. Proponents of such extension point to the transition of some providers to web-only transmission. The draft makes clear that countries may exclude webcasters through a reservation. To limit the text to traditional broadcasting, Art. 3(2) and (6) could be deleted. | ||
| Article 6 Right of Retransmission to the Public […] (2) Any Contracting Party that, before the entry into force of this Treaty, did not provide a right under paragraph (1) to broadcasting organizations in respect of entities that merely retransmit programme-carrying signals for the reception by the public while providing reasonable remuneration to rightholders of the programmes carried by such signals, may continue such a domestic legislative arrangement. | One problem with giving broadcasters a right to prevent retransmissions to the public of their signals is that many countries require such retransmissions, for example to carry public broadcasts over cable, Internet, or other forms of service that can reach areas not within reach of traditional broadcast signals. The SCCR 46 draft added 6(2), permitting pre-existing domestic arrangements that allow entities to retransmit programme-carrying signals through remuneration schemes. But the treaty would appear to prohibit creating new retransmission schemes. If the Treaty followed a purely “signal based approach” as directed by the 2006 and 07 General Assemblies, then it would not include any exclusive rights such as Article 6. The Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite is such a signal based treaty and does not contain any exclusive rights. It only mandates prohibition of signal theft. Article 6(2) could be altered to permit all countries to adopt remunerated exceptions to the transmission right. See, e.g., Beijing Treaty Article 11(2): “(2) Contracting Parties may in a notification deposited with the Director General of WIPO declare that, instead of the right of authorization provided for in paragraph (1), they will establish a right to equitable remuneration for the direct or indirect use of performances fixed in audiovisual fixations for broadcasting or for communication to the public. Contracting Parties may also declare that they will set conditions in their legislation for the exercise of the right to equitable remuneration.” | ||
| Article 7 Right of Fixation | In SCCR 46, the USA opposed inclusion of a right of fixation in the treaty, but that provision is unchanged in the SCCR 47 draft. A fixation is essentially a recording. Thus, the impact of giving broadcasters an exclusive right of fixation may be to permit broadcasters to exclude the use of recording devices in their contracts with customers to prohibit the use of third party “catch up” services. This may create market power and enable excessive pricing. Extending a right of fixation may also enable broadcasters to demand licenses from libraries, archives and others who make recordings for public interest services. | ||
| Article 8 Protection of Signals Used in Making Available to the Public of Stored Programmes Broadcasting organizations shall enjoy a right to prohibit the unauthorized acts referred to in Articles 6 and 7 in respect of the transmission to the public by any means of the programme-carrying signal used when they provide access to the public to their stored programmes, including providing access to the stored programmes in such a way that members of the public may access them from a place and at a time individually chosen by them. This right of broadcasting organizations shall be applicable for a reasonably short period of time before or from the original linear transmission of a stored programme, to be determined by the domestic legislation of each Contracting Party. | In SCCR 46, the USA opposed inclusion of a right of making available stored programs as extending beyond the GA mandates, but that provision is unchanged in the SCCR 47 draft. The SCCR 45 Chair’s Summary noted that “there is common understanding amongst the Committee that the treaty should be narrowly focused on signal piracy, [and] should not extend to any post-fixation activities” (SCCR/45/Summary, p.2). Article 8, however, clearly applies to post-fixation activities of the broadcaster, and extend to point-to-point (i.e. on demand) transmissions rather than to traditional broadcasting from one point to a general audience. SCCR 47 changed the requirement that the post-fixation protection be a “reasonable short” time rather than a “certain” time. The larger policy issue is whether the treaty should extend to making available of stored programming at all. The justification for this provision is unclear. Article 8 of the WIPO Copyright Treaty already provided authors with an exclusive right of “making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.” Any broadcaster owning or licensing such programming would have rights under copyright to combat piracy of the content. | ||
| Article 9 Protection of Pre-Broadcast Signals | Article 9 has not been explicitly opposed by any country in recent SCCR meetings. The justification for this protection is unclear since pre-broadcast signals are already covered by the Brussels Convention, but not with an exclusive rights approach as in the current draft of the Broadcast Treaty. | ||
SCCR 46: Article 10 Other Adequate and Effective Protection (1) Any Contracting Party may, in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of Articles 6, 7, 8 or 9, or all of them, only to certain retransmissions or transmissions, such as by applying them only to broadcasting organisations transmitting via wireless means, or limit their application in some other way, or not apply them at all, provided that the Contracting Party affords other adequate and effective protection to broadcasting organizations covered by this Treaty, through the rights provided for in Articles 6 to 9, copyright or other rights, or other legal means. | Article 10 continues to give contracting parties the choice of using “other adequate and effective protection” instead of exclusive rights. 10(1) permits countries to “declare that it will apply the provisions of Articles 6, 7, 8 or 9, or all of them, only to certain retransmissions or transmissions, and SCCR 47’s draft gives the example of “such as by applying them only to broadcasting organisations transmitting via wireless means.” This appears to permit a country to exclude webcasting, which art. 3(6) also permits. Hugenholtz (2023, 9-10) suggests the following wording for art. 10(1) and art. 10(2): “(1) Each Contracting State undertakes to afford adequate and effective protection to broadcasting organizations against acts of unauthorized retransmission to the public, including their pre-broadcast signals. (2) The means by which Contracting Parties afford adequate and effective protection shall be a matter for the domestic law of each Contracting State and may include one or more of the following: (i) the law of copyright, related rights or other specific rights; (ii) the law relating to unfair competition or misappropriation;( iii) telecommunications law and regulations; (iv) penal sanctions or administrative measures”. The Hugenholtz amendment eliminates the notification requirement and limits the scope of protection to retransmissions to the public. His proposed definition of a broadcast (above) would limit the protection to live simultaneous broadcasts. | ||
| Article 11 Limitations and Exceptions[…] (1) Contracting Parties may, in their domestic legislation, provide for specific limitations or exceptions to the rights and protection guaranteed in this Treaty, such as:(i) private use;(ii) quotation;(iii) use of short excerpts in connection with the reporting of current events;(iv) use for the purposes of teaching or scientific research;(v) preservation in archives of the programme material carried by the programme-carrying signal. (2) Irrespective of paragraph 1 of this Article, Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting organizations as they provide, in their national legislation, in connection with the protection of copyright in literary and artistic works, and the protection of related rights. | The main problem with the limitations and exceptions provision is that, by making all of the provisions permissive (“may”) it permits the exceptions for broadcast rights to be less extensive than the exceptions for copyright covering the same content. This could result in needing to license broadcasts for uses that are permitted by copyright. The obligation that exceptions be “specific” may inhibit countries from applying general-purpose exceptions such as fair use or fair dealing. To remedy the problems in the draft, the following changes could be made: 11(1): delete “specific” and change “may” to “shall”: 11(2): change “may” to “shall”: Add new paragraph (3), based on the agreed statement of Art. 10 of the WCT:: “Contracting Parties may carry ‘forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention, the Rome Convention and the Brussels Satellite Convention’, and to ‘devise new exceptions and limitations that are appropriate in the digital network environment’.” | ||
| Article 12 Obligations Concerning Technological Measures (3) Contracting Parties shall take appropriate measures, as necessary, to ensure that when they provide adequate legal protection and effective remedies against the circumvention of effective technological measures, this legal protection does not prevent beneficiaries of limitations and exceptions from enjoying the limitations and exceptions provided for in this Treaty. | Paragraph 12(3), added in the SCCR 46 draft, clarifies that countries may authorize circumvention of TPMs to enable activities permitted by copyright exceptions. The additional language in the SCCR 47 draft that the authorizations should enable activities of the beneficiaries “of limitations and exceptions” appears to be a helpful clarification The provision could be clarified to apply to unprotected content in addition to content covered by limitations and exceptions. For example, Hugenholtz (2023, 15) suggests: “Contracting Parties shall take appropriate measures, as necessary, to ensure that when they provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures, this legal protection does not prevent third parties from enjoying content that is unprotected or no longer protected, as well as the limitations and exceptions provided for in this Treaty.” |
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