Comments on the September 6, 2023 Draft of a WIPO Broadcasting Treaty, the Definitions, Scope of Application, National Treatment and Formalities

The World Intellectual Property Organization (WIPO) is evaluating a proposal for a new treaty that provides rights to broadcasting organizations. The negotiations began in 1997 and are currently taking place in the Standing Committee on Copyright and Related Rights (SCCR). On September 6, 2023, the WIPO Secretariat published a revised draft text prepared by the SCCR Chair, SCCR Vice-Chairs and facilitators. This article looks at certain elements of the draft concerning the definitions, scope of application, national treatment and formalities. Objections to the text focus on several draft definitions and the scope of application on the grounds that (1) very broad categories of information transmissions are defined as broadcasting and broadcast programmes, including information not disseminated through traditional radio or television mediums, and (2) that point-to-point transmissions, as opposed to point-to-multipoint transmissions, are inappropriately considered broadcasting. The draft text clearly extends the broadcaster right to transmissions of works in the public domain, licensed under Creative Commons or similar licenses, or even works infringed by the broadcaster. The draft treaty text Article on National Treatment includes a dangerous upward ratchet on broadcaster’s rights, particularly as regards conflicts between the rights of authors, performers and audiences, on the one hand, and broadcasting organizations on the other. The conditions on formalities are unnecessarily restrictive. Alternatives are proposed for some sections of the draft text to narrow the types of transmissions and activities covered by the treaty. This comment does not discuss the default rights or limitations and exceptions to those rights, a topic that will be addressed in a subsequent paper.