The International Framework

The basic principles governing copyright protection at the international level have been laid down in the Berne Convention for the Protection of Literary and Artistic Works, which was last revised in 1979. The convention implements the minimum requirements for the national laws of all signatory states. At the time of this writing, at least 150 countries are members of the Berne Convention, which is administered by the World Intellectual Property Organization (WIPO). A second international convention, the Universal Copyright Convention (UCC), was drawn up to establish a system of international copyright protection under the auspices of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) in 1952. The Berne Convention offers far more copyright protection than the UCC. In essence, the UCC merely says copyright owners in any member country have whatever rights local citizens have in other countries. The Berne Convention, on the other hand, sets minimum standards for copyright protection, requiring each member country to provide at least that much protection.

There is another international convention, the Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations, which dates from 1961 and extends protection to performers, record producers, and broadcasters. This convention, ratified by 76 countries so far, extended copyright protection to neighboring rights: performing artists enjoy rights over their performances, producers of phonograms over their recordings, and radio and television organizations over their programs. A key reason for negotiating the Rome Convention was to afford international protection to holders of neighboring rights, including broadcasters. By protecting the rights of performers, as well as those of phonogram producers and broadcasters, however, the Rome Convention gave performers rights that many countries, such as the United States, considered excessive. Such countries have therefore declined to ratify the Rome Convention.

Finally, a chapter protecting Trade-Related Aspects of Intellectual Property Rights (TRIPS) is included in the WTO Agreement, which was accepted in 1994 and is administered by the World Trade Organization. The TRIPS Agreement was developed to ensure the provision of proper standards and principles concerning intellectual property rights, and at the same time to foresee means for the enforcement of such rights. The TRIPS Agreement includes some, but not all, of the provisions of the Rome Convention. It only protects performers against the unauthorized recording and broadcasting of live performances (i.e., bootleg recordings and broadcasts). However, the main reason for establishing a parallel system of protecting intellectual property rights within the TRIPS Agreement was to strengthen enforcement procedures for protecting intellectual property rights. Each country must ensure that its laws provide enforcement procedures that are backed by rapid and effective action. Judicial authorities must be given powers to serve an injunction requiring an alleged infringer to desist and to require the destruction of infringing goods or the tools and materials with which the infringing activities were carried out. They must also require the infringer to pay damages and costs to the right holder. Furthermore, under the most-favored-nation clause of the TRIPS Agreement, each country must afford equal, immediate, and unconditional protection to nationals from all other signatories. Finally, any dispute as to the implementation of the provisions of the TRIPS Agreement must be settled under its dispute settlement procedures. This is a new departure, as there are no enforceable dispute procedures in other conventions.

Copyright and Broadcasts

In general, the owner of a literary or artistic work— copyrighted work—has the exclusive right to reproduce the copyrighted work, to create derivative work based on it, and to distribute copies of or perform or display the work to the public. As most broadcasts include literary or artistic works, the broadcaster must normally acquire these exclusive rights to license the work to be produced or broadcast in advance. In the television, music, and motion picture industries, complex business arrangements have been developed to compensate the copyright owners of literary and artistic works that go into television productions.

When recorded music is used, the broadcaster is required to acquire a separate neighboring right in the sound recording of the performance; and in many countries performers also have a separate right in their performance. Therefore, broadcasters wishing to use the music as part of their programming usually enter into an agreement with copyright holders of the music, and they mostly pay them a license fee for the music used in programming. The fee paid is based on the market size of the medium and the amount of music used. If a cinematographic recording is used during a broadcast, the broadcaster must also acquire its broadcasting right. By acquiring the broadcasting rights in all the constituent literary or artistic works that are included in a broadcast, the broadcaster can thus protect the broadcast itself from being copied, broadcast, or communicated to the public.

The broadcaster has five key issues to negotiate when acquiring a license to broadcast a literary or artistic work: (a) the territories for which the right should be acquired; (b) the period of time for which the right should be acquired; (c) whether the right should be licensed on an exclusive or nonexclusive basis; (d) whether to acquire any ancillary rights, such as cable rights; and (e) whether payment to the original right holders should be made immediately or stage by stage with each successive broadcast. Thus, once the broadcaster has acquired the constituent rights in the broadcast, these can form the basis of protection for the broadcast itself.

In some broadcasts, however, there may be no constituent literary or artistic work. The broadcaster cannot rely therefore on the licenses to the constituent works to protect the broadcast itself. Two typical examples would be a live broadcast of a sports event or a discussion program. In common law countries, the broadcaster is normally granted a copyright in the broadcast itself. But in Roman law countries, a broadcaster is only given a neighboring right. Therefore, the international protection afforded by the Berne Convention does not extend to these broadcasts. Under the Berne Convention, states are required to provide copyright protection for a term of the life of the author plus 50 years. However, the convention permits parties to provide for a longer term of protection. Recently, the duration of copyright protection has been extended in both the European Union and the United States. In 1993 the European Union issued a directive on harmonizing the term of copyright protection. The goal was to ensure that there was a single duration for copyright protection across all EU countries. The directive chose the term of Germany, which had the longest copyright term of any EU country, lasting 70 years after the death of the author.

In order to facilitate international trade in television programs, a number of European states used the umbrella of the Council of Europe to establish the European Agreement Concerning Program Exchanges by Means of Television Films in 1958 and the European Agreement to Protect Television Broadcasts in 1960. But in the following year, broadcasters were also afforded more limited, although more widespread, protection by the Rome Convention for the Protection of Performers, Phonogram Producers, and Broadcasting Organizations. Even so, broadcasters that are established in states that are not signatories to the Rome Convention may have to rely for protection on bilateral agreements between the country where they are established and that where protection is claimed. Elsewhere, the broadcaster’s only protection could depend on the terms of the contract between the broadcaster and the foreign user.

To bring U.S. law into conformity with that of many European countries, the United States also extended the term in the Sonny Bono Copyright Term Extension Act of 1998. The basic term now is the author’s life plus 70 years, or 95 years for works created for hire, which means most corporate copyrights are valid for 95 years.

The Collective Administration of Rights

For many broadcasters, the time and effort in negotiating copyright clearance for all the literary, musical, and artistic works used in their broadcasts is potentially extremely expensive and time-consuming. Conversely, many copyright owners have neither the means nor the ability to monitor the use of their work by broadcasters. In practice, therefore, many rights are collectively administered by collecting societies. These collecting societies are effectively cooperatives between different categories of rights holders.

Originally, this form of administration was mainly confined to musical works. But when sound recording and radio broadcasting arrived, composers and music publishers soon realized that the performing rights of their works in gramophone recordings and radio broadcasts would far outstrip sales of sheet music. They therefore transferred the right to authorize the use of their works to a collecting society. The collecting society can, in turn, authorize recording companies and broadcasters to use a wide range of music in one general contract. Depending on the agreement, the fee the broadcaster has to pay may either be standard or vary according to some agreed criterion, such as the broadcaster’s net advertising revenue. The collecting society then passes its revenues back to its members, after deducting its administration costs. On the other hand, broadcasting licenses for cinematographic or musical works are still normally acquired by individual negotiation and the payment of a specific fee.

In the United States, broadcasters and cable operators pay a license fee to the three major music performing rights organizations: the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music Incorporated (BMI), and SESAC (formerly Society of European Stage Authors and Composers).

Founded as an international organization in 1926, the International Confederation of Societies of Authors and Composers (CISAC) has provided an international framework of cooperation and financial exchange between national collecting societies. In many countries, similar collecting organizations, or sometimes the same ones, have also been established to license the recording rights for musical works. A parallel international bureau of societies administering those rights, BIEM, has also been set up, which negotiates model agreements with broadcasters and others that serve as the basis for licensing recordings throughout many parts of the world. Today collecting societies administer collectively the author’s rights and neighboring rights for broadcasting, the public reception of broadcasts, and cable transmission (including retransmission of broadcasts). In Europe, the simultaneous cable transmission of broadcasts, both domestic and foreign, has led to the formation of “supercollectives,” which are able to grant licenses on behalf of several different collective licensing organizations.

Cable Relays of Broadcasts

Once a television program has been broadcast, it is technically possible to capture it and relay it to new audiences by cable. In the early days of the technology, cable was often used to improve signal reception, particularly in the so-called shadow zones, or to distribute the signal through large buildings. The Berne Convention permits states to determine the conditions under which authors of literary and artistic works may exercise their rights to communicate their works to the public by wire, provided that those conditions are prejudicial neither to the moral rights of the author nor to the right to receive equitable remuneration. Many states therefore impose compulsory licenses on the cable rights of literary and artistic works that were incorporated in broadcasts.

The Rome Convention affords even less protection. It denies a performer the right to prevent a performance from being communicated to the public by cable when the performance is already part of a broadcast; and it only allows a broadcaster a separate cable right in its television broadcasts if they are relayed to places where the public must pay an entrance fee. In many countries, therefore, cable operators can relay both domestic and foreign broadcasting services to their subscribers without a sublicense from the original broadcaster.

The U.S. Supreme Court originally held that it was not an infringement of copyright to relay broadcasts to paying subscribers. But the 1976 Copyright Act drew a distinction between “secondary transmissions,” which simultaneously retransmit network programs or programs within the local service area of a broadcaster, and the retransmission of far-away nonnetwork programs. The former are deemed to have no adverse economic effect on the copyright owners, whereas the latter are determined to have such an effect, since they distribute the broadcast to a new audience that the original right owner did not anticipate when the works were first licensed. Each distant signal is therefore given a “distant signal equivalent,” with different values for independent station networks and educational stations.

In the United States, the compulsory license originally provided for semiannual royalty payments by cable operators to the Copyright Royalty Tribunal (CRT). In 1993 Congress passed legislation to abolish the CRT. As a result, royalty rates are now determined by binding arbitration. The royalties are set by an entity within the U.S. Copyright Office, the Copyright Arbitration Royalty Panel. Every six months, cable operators must provided the Copyright Office with information about retransmitted broadcast signals and the system’s gross subscriber receipts from secondary retransmission of local and distant broadcast signals.

In Europe the situation is variable. The United Kingdom permits licensed cable operators to retransmit the broadcasts of British broadcasting organizations. But in Germany, copyright owners are fully protected against their works being retransmitted by cable. In addition, both broadcasters and cable operators have a 25-year neighboring right against rebroadcasting and retransmission. In Austria, complete and unaltered transmissions of the public broadcaster ORF can be retransmitted throughout the country. On the other hand, cable retransmissions of foreign broadcasts are subject to copyright under a statutory license that sets out the remuneration criteria.

A cable operator can now pick up a broadcast signal from a foreign satellite and relay it to its domestic subscribers. In its Council Directive on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (93/83), the European Union harmonized the rules for the internal market between its 15 member states. When a program from another member state is retransmitted by cable, the applicable copyrights and related rights must be observed. Any retransmission must be licensed by individual or collective contractual arrangements between cable operators and the relevant right holders. But this provision does not automatically apply to cable retransmissions of broadcasts from countries outside the European Union. Furthermore, although there are several European states that are members of the Council of Europe but not of the European Union, the parallel convention of the Council of Europe (the European Convention Relating to Questions of Copyright Law and Neighboring Rights in the Framework of Transfrontier Broadcasting by Satellite) does not cover the simultaneous, complete, and unchanged retransmission of satellite broadcasts by terrestrial means.

Satellite Broadcasting

Satellite technologies recently have made transfrontier broadcasting possible. In some situations, the signals are broadcast direct to home; elsewhere they are relayed by cable. Some channels, financed by advertising and sponsorship, broadcast open signals. Others, which are financed by subscription, broadcast encrypted signals. But in practice, every satellite service also has to negotiate the appropriate copyright clearances, both for the literary and artistic works in the program and for the broadcast itself.

The Rome Convention of 1961, which for the first time dealt with related or neighboring rights, made no reference to satellite broadcasting. Instead, the 1974 Brussels Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite dealt with the protection of satellite signals by which programs are transmitted between broadcasting organizations or between such organizations and cable distributors. As of this writing, while only 24 countries signed on to the Brussels Convention, the relevant jurisdiction for a transfrontier broadcast is a key issue that the international community has still to resolve.

In 1999 the United States passed legislation enacting the Satellite Home Viewer Improvement Act, which amended the copyright and communications law with respect to satellite delivery to subscribers of over-the-air television broadcast stations. The act provides satellite carriers with a royalty-free copyright license to clear the copyrights to local television broadcast programming in all television markets across the United States. As a result, some satellite carriers have already begun to offer packages of local network stations in certain markets.

Home Taping

While broadcasters and program producers have been battling over copyright protection, another intense battle has been waged over the advent of new technologies such as home video recording and the exchange of copyrighted material on the Internet. Ordinary television audiences can now tape television programs off air, to be stored and replayed at a later time. Many educational institutions also tape broadcasts off air for educational use. There is still no firm agreement at the international level as to whether these activities are a breach of copyright. There are two distinct, but related, issues. First, does the act of making a video or audio recording infringe copyright? And second, does the replaying of the recording in fringe copyright?

The Berne Convention allows countries to permit the reproduction of literary and artistic works “in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author” (Article 9); and there is a parallel provision for broadcasts in the Rome Convention (Article 15). Therefore, it is not necessarily an infringement of copyright to make an off-air video recording, provided that the manner in which the recording is used does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

In general, common law countries, such as the United States, permit video recording for domestic use. In the United States, for example, the home videotaping of broadcast television programs was deemed to be fair use by the Supreme Court. In Sony Corp. v. Universal Studios Inc. (1984), the Court held that non-commercial in-home use of videotaped programs was not copyright infringement. This case has been referred to as the Betamax case, so named because of Sony’s tape format at the time. The decision in the Betamax case opened the door to legal home videotaping of broadcast programs and spurred the purchase of home videotape recorders in the 1980s.

Since the United States is in the midst of moving toward digital television (DTV), there is a far-reaching legal debate about copyright protection in the digital age. As of the time of writing, the “broadcast flag” system is now the subject of a major rule-making proceeding at the Federal Communications Commission. The broadcast flag proposal is a combination of technical standards and federal regulations designed to prevent unauthorized redistribution of digital television broadcasts. It is a set of regulations requiring that DTV receivers and devices that receive content from them— such as TV sets, computers, DVD recorders, and other digital video recorders—be built to protect DTV content marked by digitally encrypted code called the “flag.” Overall, a consensus is emerging among industry groups that the digital hardware will include provisions to prevent home videotaping once the DTV transition is complete.

Although most countries in continental Europe consider video recording to be a breach of the author’s right, they simultaneously recognize that they cannot prevent the onward march of technology. Many therefore impose a levy, either on the sale of video recorders or on the sale of blank recording tape, or both, to “compensate” right owners for their “lost” revenues. As emerged first in Germany and spread to other states, currently, 12 EU member states have put in place a levy system. Conversely, many right owners consider these levies to be a compulsory license that has been imposed on their right to license the video recordings of television broadcasts of their works. In some countries, however, these levies are also used to subsidize the domestic film production industry. The principles on which such levies have been established and the levels at which they have been set have often been ambiguous.

The regulations governing the educational use of video recordings are even more confused. The Berne Convention allows states to permit the use of literary or artistic works by way of illustration in broadcasts or visual recordings for teaching, provided such use is compatible with fair practice. In the United States, the fair use doctrine, outlined in Section 107 of the U.S. Copyright Act, states that under certain conditions, copyrighted works may be used for teaching, research, scholarship, criticism, or similar purpose without specific permission of the copyright holder. The federal fair use guidelines for off-air recording cover the recording of off-air programs simultaneously with broadcast transmission (including simultaneous cable transmission), which serve as primary criteria when courts assess fair use in cases involving off-air video-taping for educational purposes. Although they do not have the force of law, the guidelines have been considered a safe harbor for educational use. If a particular instance of off-air videotaping is not covered by a specific negotiated agreement with the copyright holder, the fair use guidelines for off-air recording may apply. These guidelines apply to off-air recording by non-profit educational institutions only.

The policy differences between individual states carry significant implications for domestic educational policies, but some degree of international harmonization may emerge. The EU Commission has prepared a draft directive to introduce a system of blank tape levies in all member states, although at the time of this writing, this proposal has not commanded the consent of a qualified majority in the Council of Ministers. Furthermore, a producer state could choose to use the stronger mechanism for resolving international disputes set down in the TRIPS Agreement in order to challenge a lax interpretation by a user state of the ambiguous provisions in the Berne Convention regulating off-air recording.