WIPO Examines Streaming Inequalities

February 1, 2016

by Jennifer Garner, AFM In-House Counsel

The AFM has made a commitment to continuing its participation as a non-governmental organization in the activities of the World Intellectual Property Organization (WIPO). In furtherance of this interest, I am especially glad to have had the opportunity to represent the AFM at the December 2015 session of the WIPO Standing Committee on Copyright and Related Rights in Geneva.

There, the delegations of Brazil and other Latin American countries presented an interesting analysis of the impact of the worldwide growth of digital music services on creators and performers. Its findings were clear. Although streaming is fast becoming the preferred platform for music consumption, creators and performers are not getting their fair share of the revenue generated from this distribution model.

The presentation noted the difficulties of applying traditional exclusive rights, such as the right of reproduction, in the digital environment. The international community has not yet reached consensus on the treatment of incidental or ephemeral reproductions. As a result, digital services are largely unregulated.

However, by far, the biggest concern for musicians is the economic power that the major record labels wield with digital music services. Through the use of imperious confidentiality agreements, numerous intermediaries, and complex licensing transactions, the labels are able to impose their own set of rules with no transparency in the receipt and distribution of streaming royalties. Additionally, the use of certain algorithms to automatically assemble playlists favors some repertoires more than others, a system the Latin American group compared to the bygone days of “payola.”

The Latin American report was received with significant interest and concern. The delegation of the US took the lead in inviting the committee to begin a substantive discussion of the topic of fairness in digital streaming, as the global nature of the Internet calls for meaningful responses that take into consideration the diversity of national laws on the subject of copyright. I had the privilege to take the floor in order to express the AFM’s concerns about the rights of musicians in the digital environment, confirm the lack of fair pay to musicians for digital streaming, and appeal to the committee to give the topic high priority in its upcoming sessions.

The December session also included a discussion of a proposed treaty protecting broadcasting organizations. The objective of the treaty would be to invigorate the ability of broadcasters to fight piracy, as the rights currently provided by the 1961 Rome Convention have proven to be inadequate in the 21st century.

However, a growing consensus supports a treaty that is limited to the protection of broadcast signals from unauthorized retransmission, without granting exclusive rights to broadcasters that would be in conflict with the exclusive rights of performers and producers. In other words, broadcasters should not be given any rights in the creative content embodied in their signals.

The European Union has proposed certain measures that are in conflict with the signal-based approach favored by the US and others. For example, the EU proposes giving broadcasters the rights with respect to retransmissions, whether they are simultaneous, delayed, or on-demand. But, of course, delayed and on-demand transmissions would involve a fixation of the content of a broadcast signal in some medium that could be preserved for later transmission. The majority of nations do not appear to be inclined at this time to grant broadcasters the right to authorize or prevent a fixation. Another point yet to be settled is whether the treaty’s scope should be limited to wireless transmissions currently protected under the Rome Convention, or whether it should also include transmissions over computer networks.

The committee has many issues to resolve before a diplomatic convention on the protection of broadcasting organizations could occur. Meanwhile, WIPO is moving ahead with a conference on the global digital content market to take place in April. It bodes well for musicians that WIPO is taking up the issues of digital distributions on a parallel track with its other business.

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