Copyright’s International Conventions: The Importance of Membership Part II (The Rome Convention)

Credit: WIPO

Last month I wrote about the importance of international copyright treaties, using US accession to the Berne Convention as an example. United States accession was strongly supported by US copyright industries and has brought the US many benefits. But if acceding to an international copyright convention has its rewards, absence can bring costs. A recent case in Sweden highlights the importance of expanding the international network of agreements to ensure protection of non-nationals.

Back in March of this year two men who had been convicted in a Swedish court, sentenced to prison and fined $21 million for engaging in widespread broadcast piracy through operating the streaming service Advanced TV Network (ATN), were released on appeal. They were accused of pirating and redistributing signals from Qatar’s beIN Sports (a network widely pirated in Saudi Arabia and elsewhere, which I wrote about here and here). Why were they released? While ATN may have distributed beIN sports broadcasts in Sweden without permission, according to the appeals court the copyright on the broadcasts from the Qatari company could not be enforced because Qatar was not a member of the Rome Convention at the time of the offences.

The Rome Convention, aka the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, was signed in 1961 and came into effect in 1964. As stated by the World Intellectual Property Organization (WIPO) which, along with the International Labour Organization and UNESCO is responsible for administering the treaty, it “secures protection in performances for performers, in phonograms for producers of phonograms (sound recordings) and in broadcasts for broadcasting organizations”. With respect to broadcasting, broadcasting organizations in member states have the right, among other things, to authorize or prohibit the rebroadcasting of their broadcasts and the communication to the public of their broadcasts if such communication is made in places accessible to the public through payment of an entrance fee. In other words, broadcasts of professional sports matches.

The Convention today has 96 member states, a significant number although representing only about half the number that are members of Berne. Those 96 countries include Qatar (with effect from September 23, 2017). It acceded about a year after the offences for which the owner of ATN and his son were originally sentenced–a year too late it seems, from the perspective of beIN Sports. But better late than never, as the saying goes. However, while Qatar has now acceded to the Rome Convention, the United States has not. Why has the US not acceded, and is this a problem for US rights-holders?

In my blog posting last month, I discussed why the US was reluctant to join the oldest and most important of international copyright conventions, the Berne Convention. It eventually did so in 1989, 103 years after Berne was originally established. The US was a holdout for many years because US law was not consistent with some of the provisions of the Convention. In the case of the Rome Convention, as with Berne, there was (and is) a problem with the incompatibility of some aspects of US law, making it difficult for the US to accept the terms (and the benefits) of the Convention.

US law does not provide full protection for “neighbouring rights” (AKA “related rights”), the right to publicly perform or broadcast a sound recording, one of the categories of rights covered by the treaty. When a work is broadcast, royalties are paid to “authors”, in this case songwriters and music publishers. In Rome Convention countries, royalties are also paid to the artist(s) and recording studio or record label, as related or neighbouring rights. But not in the United States.  US broadcasters are exempt from paying performers and labels when sound recordings are played on terrestrial (AM/FM) radio or on TV. (Digital transmissions are not exempt). Many attempts have been made over the years to correct this situation, the most recent of which is the American Music Fairness Act, introduced in 2021, which I wrote about here. The legislation is opposed by the terrestrial broadcasters, who have considerable political clout in Congress. But as noted copyright scholar Daniel J. Gervais has commented, with respect to the Rome Convention;

Failure of the United States to adhere has cost US performers and industry tens of millions of dollars in remuneration paid for the broadcasting of sound recordings that are not paid to United States rights holders because the Rome Convention and TRIPS (the intellectual property measures in the World Trade Organization treaty) allow reciprocity in this regard as opposed to the usual standard of nondiscrimination against foreign nationals known as national treatment. To obtain the remuneration from Rome Convention members, the United States would have to ratify the Convention and establish a remuneration for the broadcasting of sound recordings

If US artists and labels have been deprived of royalty revenues overseas, the US broadcast exemption has also cost recording artists from other countries significant amounts of potential revenue in the United States.

Failing passage of legislation to remedy the anomaly of non-payment of royalties for related rights over radio and TV, the US music industry can attempt to have the United States negotiate “national treatment” clauses in bilateral or regional trade agreements, as it did in the recent update of NAFTA (the USMCA). In this case Canada, which (with limited exceptions) does have a radio royalty performance right, agreed to grant US performers “national treatment”, which means that US performers and recording studios can collect royalties for the playing of their sound recordings over terrestrial radio in Canada even though neither Canadian nor American performers currently enjoy that right in the United States.

If the US has not ratified the Rome Convention, how do US artists, record labels (producers of “phonograms”) and broadcasters protect their IP rights abroad? Well, first of all, through the negotiation of “national treatment” provisions whereby US entities are accorded the standard of copyright protection granted by the host country, as occurred with Canada and Mexico in the case of the USMCA/CUSMA, when the host country’s standard of protection exceeds that of the US. Secondly, by acceding to other international agreements that are similar or almost equivalent to the Rome Convention in some of their provisions. For example, the US, acceded to the Phonograms Convention of 1971. That protected the record labels from unauthorized duplication of their recordings. The Convention provides protection to the “producer of phonograms who is a national of another Contracting State against the making of duplicates without that producer’s consent…”. Then, in 2002, the US ratified the 1996 WIPO Performance and Phonograms Treaty (WPPT). This provided additional protection to recording studios and performers (although the US had to take a reservation because of its non-recognition of performing rights for terrestrial radio, allowing other countries to deny payment of royalties to US performing artists) and provided US performers with a moral right, at least for countries that are members of the Treaty.

But what neither of these treaties did was to protect broadcasts, which was one of the areas covered by the Rome Convention, (Some protection was provided to broadcasters in the TRIPS Agreement, part of the World Trade Organization treaty).

For a number of years, WIPO has been trying to negotiate a new international broadcast treaty, so far unsuccessfully. As WIPO explains it;

“International rules to protect television broadcasts from piracy have not been updated since the 1961 Rome treaty, drafted at a time when cable was in its infancy and the Internet not even invented. Now that perfect digital copies of television programmes can be made and transmitted with a few mouse clicks, signal theft has become a big commercial headache for broadcasting organizations around the world.”

It would be fair to say that a broadcast treaty is controversial. The outstanding issues include the scope of coverage, (would it cover internet transmissions?), how signals should be protected, (the extent to which technological protection and encryption methods should be allowed), and what additional rights should be given to broadcasters. As explained by WIPO;

“Under the Rome Convention, broadcasters have exclusive rights for 20 years to authorize rebroadcasting, “fixation” (recording), reproduction and communication to the public of their broadcasts. Most broadcasters want the new treaty to extend and update those rights for the new technologies, especially to prevent unauthorized retransmission of their programmes over the Internet.”

Critics argue that additional protection for broadcasts would hinder access to copyrighted material by requiring an additional level of permission from the broadcaster in addition to the copyright owner, such as the producer of the material. There is also debate about how long protection should last, the 20 years of the Rome Convention or longer. For all these reasons, progress on finalizing the Treaty has been slow.

In the meantime, US broadcast networks distributing their programs abroad cannot invoke the protection of the Rome Convention. I know nothing about Swedish law, but if the recent Swedish beIN Sports case is anything to go by, and if beIN Sports could not pursue broadcast pirates in Sweden because its home country of Qatar had not acceded to the Rome Convention at the time of the proven criminal activity, then US networks must be equally vulnerable. And unlike beIN Sports (since Qatar has now acceded to Rome), US broadcasters remain vulnerable to this day. That can’t be good news for US sports franchises like Formula One, the NBA, or UFC if they distribute their content through US based sports networks, like ESPN International or Fox Sports International. International copyright conventions count. They are there for a reason-to establish standards of international protection and to plug holes in the system.

But while the US eventually accepted the need to join Berne, there appears to be little or no chance that it will eventually ratify the Rome Convention. At the time “Rome” was drafted, sixty years ago, there were issues with US law that prevented ratification. Subsequently the performers and phonograms issues were largely resolved through accession to more modern treaties. As for US broadcasters, they appear to have no interest in pushing for ratification of the Rome Convention but are instead more interested in the future possibility of a new International Broadcasting Treaty.

In the case of Berne, the US eventually saw the need to accede and the political will was mustered to pass implementing legislation, which required some changes to US law. In the case of the Rome Convention, the US has been able to manage without joining for over half a century through various work-arounds and is unlikely to make the effort now. Potentially though, some US broadcast interests operating abroad could suffer the consequences of this decision, as was the case with beIN Sports in the case of Qatar’s non-membership at the time the principals of ATN were convicted of piracy.

Whether to invest the political capital in making the changes needed to permit accession to a given treaty is always a political calculation that governments need to make. The benefits must be balanced against any downsides, while domestic political interests and lobbies have to be taken into consideration. As I noted last week, when the pain is worth the gain, it happens. For the US, joining the 1961 Rome Convention may not be in the cards, but until an international broadcast treaty is achieved, sports networks based in Qatar (or any of the other 95 Rome Convention countries) would seem to have a greater degree of protection against theft of their signals abroad than those networks based in the US. That’s the trade-off.

© Hugh Stephens 2022. All Rights Reserved.

Connecting Online Platform Audiences to News Media Content: Is There A “Missing Link”? 

Credit: Pixabay

Last week I talked about developments in Australia, Canada and the US regarding how to find ways to require large online platforms that aggregate news content for their users to share some of their digital advertising revenues with the producers of that content, namely news publishers and broadcasters. Australia has already taken action, successfully. Canada is currently going through the process of enacting legislation, Bill C-18, the Online News Act. The US is still studying the issue.

As Bill C-18 continues to make it way through the Canadian parliamentary process, much attention has been focussed on whether hyperlinks to content should be covered by the law. Google is firmly opposed, claiming that including links will “break” Google Search, (among numerous other criticisms), despite the fact that links were also covered in the Australian legislation that Google eventually came to terms with.

Bill C-18 targets not just “snippets”, those mini-excerpts containing the gist of the story used by the platforms to entice readers, but also hyperlinks. It is a standard feature of copyright law in most if not all countries that posting a link to content does not constitute copyright infringement. If I don’t have the rights to reproduce an article or to publish the photos in an article, I can nonetheless point my readers to the article and the photos by giving them the URL, usually by embedding a link to the original material. I haven’t copied anything. All I have done is tell people where to access the original, which could be seen as a positive in that I am directing more traffic to the original site. That is what the platforms maintain they are doing when it comes to linking to news articles. But Canada nonetheless intends to include links in the Bill’s coverage because to exclude them would not target the “problem”, the problem being that the big platforms use links—among other devices–to aggregate material produced by others (and to profit from it). Bill C-18’s solution is to require the platforms to compensate producers of media content when they make that content available to online audiences. “Making available” through facilitation of access is the key action, not copying or reproducing, although that is also covered in the legislation. 

While copyright law does not generally cover linking (reproducing short excerpts, or “snippets”, is potentially different although there are legitimate debates about how little or how much can be included in an excerpt without infringing copyright), C-18 does not approach this as a copyright issue. Instead, it takes a competition approach–although the minister bringing forth the legislation is not the minister responsible for competition policy, (i.e. the Minister of Innovation, Science and Economic Development), but rather the Heritage Minister–and the agency responsible for implementing the legislation will be the Telecommunications and Broadcasting regulator, the CRTC, not the Competition Bureau. The Online News Bill is intended to redress an imbalance in the market and an imbalance in bargaining power, just as the Australian legislation did. This differs from the European approach which created a new ancillary copyright, a publishers’ press right, which provided news publishers with a new lever to use in bargaining with the platforms. Notably, hyperlinking is exempt from the provisions of this ancillary right which was brought in under Article 15 of the EU’s Copyright Directive.

The Canadian legislation is all about providing “fair compensation for the news content that is made available”. It doesn’t mention hyperlinks specifically, but since links are a vehicle to make content available, it seems clear they are covered.

The relevant provision in the Bill–Section 2(2)—reads (with Part b being the important element insofar as links are concerned);

For the purposes of this Act, news content is made available if

(a) the news content, or any portion of it, is reproduced;

or

(b) access to the news content, or any portion of it, is facilitated by any means, including an index, aggregation or ranking of news content.

It is well known that publishers themselves often post links to their own content on the platforms, especially Facebook, as the platform is a key tool in attracting an audience. The platforms will say, of course, why should we be required to pay the publishers when they themselves have posted the link? The answer, I believe, comes in the wording of the legislation requiring “fair compensation”. One would expect the calculation of fair compensation to take into account the benefit that news publishers gain by posting links to the platforms. That benefit will need to be offset against the greater benefit that the platforms gain by using news content to attract viewers and advertisers. That trade-off will normally be worked out during bilateral negotiations between the publishers and the platforms, with the government, in the form of the CRTC, stepping in only if there is a failure to reach agreement.

So, yes, linking is covered (but not because of copyright) but the calculation of benefit from posting the links is subject to negotiation between the parties, adjudicated in the end, if necessary, by a three-person arbitral panel. That panel would be selected by the parties from a roster maintained by the CRTC. If the parties cannot agree, the arbitral panel would be appointed by the CRTC itself. “Fair compensation” will likely not be easy to determine, but with the spectre of arbitration in the background I am confident the parties will reach agreement.

Does this mean there is a slippery slope toward a so-called “links tax”, whereby individual users (like me and you) will be constrained from posting links and may be required to compensate the entity to which we are linking. No, that is not the case. The legislation is very clear that it will apply only to a “digital news intermediary” that has a “significant bargaining power imbalance between its operator and news businesses”. That definition will catch Google and Meta, but they will be exempted if they can demonstrate to the regulator that they have already entered into agreements with news businesses on the basis of fair compensation. That is what happened in Australia. Under the threat of designation under the News Media Bargaining Code, the platforms managed to get to “yes” with most news providers, thus avoiding being designated.

Despite all the bluster from Google that including links in the legislation and making them subject to compensation through negotiation will “break the internet” (we’ve heard this one before with regard to site blocking), nothing like that is going to happen. Google is not going to stop providing Search in Canada. When they threatened this in Australia, Microsoft stepped in and offered Bing as a replacement, at the same time going on the record to make it clear they had no problem in complying with Australian law. (see “Google’s Tussle Over Payment for News Content in Australia: Microsoft Scrambles the Cards–With Positive Implications for Canada and Others”).

So lets see how it all works out. There is a lot of hyperbole and misinformation being spread about C-18. (For a detailed deconstruction of Google’s criticisms, click here—yes, a hyperlink!) Maybe the legislation is not perfect in all respects but it’s undergoing careful review, currently at the Committee stage. And then it will go to the Canadian Senate for more review. Google and Meta will eventually swallow hard, bite the bullet, and move on. You can’t blame them for opposing what they see as not being in their corporate interests, and for lobbying hard against the legislation. That is how the system works. But there is no way the Canadian government or Canadian public should be panicked or stampeded into backing down. Inclusion of links within the ambit of the legislation, and making them subject to negotiation, is not a radical proposal. It is a necessary step to redressing a market imbalance, giving some bargaining power to news media content producers to enable journalism to survive, and reining in two digital behemoths that have had it all their way for far too long.

© Hugh Stephens, 2022. All Rights Reserved.

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