This post is by Seemantani Sharma. Ms. Sharma is a broad in-house international intellectual property, media and regulatory lawyer at the Asia – Pacific Broadcasting Union (ABU) , the world’s largest broadcasting union.

The Trade Related Aspects of Intellectual Property Rights (TRIPS), the most ambitious intellectual property (IP) rights treaty of the twentieth century arrived at a turning point in the history of information technology and communication. It was signed at a time when the world witnessed an unprecedented phenomenon known as the internet. Even though internet and digital technologies were a prevalent form of technology during the Uruguay Round negotiations, the copyright and related rights provisions of TRIPS failed to take into account the technological developments of the time. Based on a literature review, three plausible reasons for its myopic outlook emerge. Firstly, negotiators paid no heed to these new technologies due to ignorance. Secondly, the issue was deliberated during the Uruguay Round negotiations but did not make its way to TRIPS due to lack of political willingness. Thirdly, the spate of technological developments was realized after the Dunkel Text was finalized and it was impossible to open the negotiations.

This scholarly analysis on the lack of foresight on the part of TRIPS negotiators has primarily revolved around the challenges posed by internet and digital technologies ignoring other technological developments of the time such as those in broadcasting. Even though cable was a prevalent form of broadcasting technology in the 1990’s, Article 14.3 of the TRIPS Agreement protects broadcasting organizations only against broadcast piracy by wireless means. However, presently, in majority of the countries, satellite broadcasting is no longer the prevalent form of broadcast technology. This means that broadcast piracy can take place through both wire (cable) and wireless (satellite and digital broadcasting) means. As a matter of fact, one of the primary modes of broadcast piracy atleast in the Asia-Pacific region is the unauthorized reception and distribution of broadcast signal by cable operators.

The restrictive scope of Article 14.3 of TRIPS has become a ground for certain WIPO member states notably India and the civil society to oppose the proposed treaty for the protection of rights of broadcasting organizations (the Broadcasters Treaty). Their primary contention has been that since TRIPS failed to grant any special rights to broadcasting organizations vis-à-vis the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasters (Rome Convention), no clear need for a new international instrument on broadcasters rights was established. In this vein, my soon to be published paper in Issue 4, Volume 24 of the Richmond Journal of Law and Technology attempts to dispel the concerns of these apprehensive countries and the civil society by arguing that cable retransmission (rebroadcast) rights were never discussed during the Uruguay Round negotiations as it was clearly not its agenda, keeping in line with the “minimum standards treaty” principle of the TRIPS Agreement. This is primarily to inform certain developing countries and the civil society that any opposition to the Broadcasters Treaty on account of failure of Article 14.3 of the TRIPS Agreement to grant cable rebroadcast rights to broadcasting organizations is meritless on account of the “minimum standards treaty” principle of the TRIPS Agreement.

At a broader level, the paper strives to make at least three contributions. Firstly, to highlight the lack of foresight on the part of TRIPS negotiators to grant cable rebroadcast rights to broadcasting organizations even though cable was a prevalent form of broadcast technology during the Uruguay Round negotiations. Secondly, to inform the WIPO member states about the importance of the Broadcasters Treaty for their traditional broadcasting industry. Thirdly, and most importantly, to urge the WIPO member states to widely and urgently endorse the Broadcasters Treaty.

I believe this article is a timely and incisive piece of scholarship for informing the WIPO member states about the relevance of a forward looking Broadcasters Treaty for their traditional broadcasting industry.

 

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