1. The current program of WIPO (covering the years 1994-1995) provides that the International Bureau will prepare, convene and service a Committee of Experts on a Possible Instrument on the Protection of the Rights of Performers and Producers of Phonograms (hereinafter referred to as the "Committee of Experts" or "the Committee"). 2. This program was adopted by the Assembly and the Conference of Representatives of the Berne Union on September 29, 1993 (document AB/XXIV/2, item 03(4), and document AB/XXIV/18, paragraphs 232-234 and 283-284). The program item establishing the Committee was based on a decision of the same bodies one year earlier (see document B/A/XIII/2, paragraph 22), modifying the decision of those bodies taken two years earlier concerning the terms of reference of the Committee of Experts an a Possible Protocol to the Berne Convention (see document AB/XXII/2, item 03(2), and document AB/XXII/22, paragraph 197). 3. At the time of the aforementioned decision modifying its terms of reference, the Committee of Experts on a Possible Protocol to the Berne Convention had met twice, once in November 1991 and once in February 1992. When modifying the terms of reference, the Assembly and Conference of Representatives of the Berne Union decided, inter alia, to establish two committees of experts, one to continue the work for the preparation of a possible protocol to the Berne Convention, and another for the preparation of a possible new instrument on the protection of the rights of performers and producers of phonograms. In respect of the latter Committee, it was decided that the agenda would include "all questions concerning the effective international protection of the rights of performers and producers of phonograms" (document B/A/XIII/2, paragraph 22). It was also decided that the two Committees would each meet once during 1993, and that the meeting of the Committee on the instrument would follow immediately the meeting of the Committee on the possible protocol. The Assembly and the Conference of Representatives did not specify the nature of the relationship, if any, that should exist between the possible protocol to the Berne Convention and the possible instrument on the protection of the rights of performers and producers of phonograms, on the one hand, and between the said possible instrument and the Rome and Phonograms Conventions, on the other hand. It was felt that those questions should only be considered once the contents of the protocol and the instrument had been more or less determined. 4. So far the Committee of Experts has met twice at the headquarters of WIPO. Both sessions took place in 1993. The first session was held from dune 28 to July 2, dud the second took place from November 8 to 12. 5. The discussions in the first two sessions were based on a working document prepared by the International Bureau (document CE/INR/I/2). The report of the first session is contained in document INR/CE/I/3, and the report of the second session is contained in document INR/CE/II/1. 6. The meeting of the Committee for which this memorandum has been prepared follows immediately the fourth session of the Committee of Experts on a Possible Protocol to the Berne Convention. 3 INR/CE/III/2 page 4 7. In the memorandum prepared for the first session of the Committee, the International Bureau noted that the terms of reference of the Committee referred to in paragraph 3, above, according to which the Committee should consider "all questions concerning the effective international protection of the rights of performers and producers of phonograms," could be interpreted in two ways. The first possible interpretation was that the protection of the rights of performers should only be discussed as far as the fixation of their performances in phonograms and the exploitation of such fixations were concerned (and that the possible new instrument would not extend to the questions of the protection of the rights of performers in respect of audiovisual fixations of their performances). The reasoning to support such an interpretation was that the Committee of Experts was established because the terms of reference of the Committee of Experts on a Possible Protocol to the Berne Convention were modified: it had been decided that that Committee of Experts should not deal with the questions of the protection of phonograms (sound recordings), and, rather, that this Committee of Experts should deal with those questions. At the same time, there was agreement that it would not be appropriate to discuss those questions without also discussing the questions of the protection of the rights of performers whose performances are embodied in phonograms. Further, the protection of the rights of producers of phonograms--at least in certain aspects (such as "home taping," broadcasting, other communication to the public, public performance of the recordings)--could not be reasonably discussed separately from the protection of the rights of performers whose performances are recorded in phonograms. 8. The second possible interpretation of the terms of reference was that they covered all questions of the protection of the rights of performers, i.e., that, although the reason for the extension of the terms of reference of the new Committee of Experts to the rights of performers was that it would have been inappropriate to discuss the rights of producers of phonograms without the rights of the performers whose performances are recorded in the phonograms, the rights of performers were mentioned in the terms of reference without any restriction or qualification, Thus, the rights of performers whose performances are included in, for example, audiovisual fixations, could be discussed by the Committee. 9. During the first session of the Committee, a majority took the view that nothing in the terms of reference precluded a discussion of the question of the possible inclusion of provisions on the rights of performers in audiovisual fixations, and arguments both for and against the inclusion of such provisions put forward by a number of delegations and observers. The Director General of WIPO stated that the International Bureau would prepare a document on audiovisual fixations in due time, and the Chairman noted this in his summary of the discussion (document INR/CE/I/3, paragraphs 63-65). 10. The document referred to in the previous paragraph, to be prepared "in due time," will necessarily entail a comparative study of relevant provisions in the national laws of various countries, as well as a survey of contractual practice and practices in the administration of rights. The International Bureau is currently in the process of collecting information on such national laws and practices from governmental and private sources. Also, discussions on various questions involving the legal protection of audiovisual fixations are taking place among certain governments at the present time, and such discussions should be completed in order that the document to be prepared by the International Bureau may deal with all relevant questions. For these reasons, the present memorandum does not deal with the questions of the rights of performers in respect of audiovisual, fixations, and the International Bureau does not intend to submit a separate document to this session of the Committee. 4 INR/CE/III/2 page 5 11. However, On February 22, 1994, Mr. J.F. Mogg, Director-General, Directorate-General, Internal Market and Financial Services, European Commission, addressed a letter to the Director, General of WIPO, in which he dealt, inter alia, with "the question of the coverage of the rights of performers in their visual, audiovisual as well as audio performances." The letter states that "the New Instrument should cover the rights of performers in all performances, whether :of an audio, visual or audiovisual character, and in fixations of these performances." A document is attached to the letter bearing the title of "Coverage of audio, visual and audiovisual performances and fixations of such performances. Possible Text to form the basis for Continuing Discussion" which, as the letter indicates, "provides a version of the document previously circulated by the International Bureau amended with respect to possible provisions giving effect to the approach described above," The letter and the document attached to it are reproduced as Annex to the present memorandum and may serve as a basis for discussion by the Committee, as proposed in the letter. 12. As referred to in the above-mentioned letter of the European Commission, there was broad support, during the first session of the Committee, for the proposition that the rights, of performers in their performances fixed in phonograms should be dealt with separately from the, rights of producers of phonograms in their, phonograms. This was thought necessary and desirable in order to reflect the different nature of the contributions of performers and producers of phonograms, respectively, to the creation and dissemination of phonograms, as well as the different needs for protection which attach to the two categories of owners of rights. Accordingly, in the discussions which follow, the proposed rights of performer's in their performances fixed in phonograms will be dealt wich separately from the rights of producers of phonograms in their phonograms. 13. On December 15, 1993, the "Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods" (hereinafter referred to as the "TRIPS Agreement") was adopted in the framework of the Uruguay Round of negotiations under the General Agreement on Tariffs and Trade (GATT). The TRIPS Agreement contains standards concerning the protection and enforcement of intellectual property rights, including copyright and related rights. In preparing the memorandum for this session of the Committee, the International Bureau has taken into account the provisions of the TRIPS Agreement which relate to specific issues on the agenda for discussion. 13bis. Pursuant to the decisions of the Assembly of the Berne, Union at its fifteenth session (4th extraordinary) held on April 28 and 29, 1994 (document B/A/XV/1, paragraph 25), the memorandum prepared for this session of the Committee, together with an invitation for comments, was sent as a. provisional draft to the Governments of the countries of the Berne Union and to the European Commission. The International Bureau submitted the texts of all comments received (from the Governments of Argentina, Japan, Lesotho, South Africa, the United States of America, and the Commission of the European Communities) to the Assembly of the Berne Union at its sixteenth session (5th extraordinary), held in Geneva from September 26 to October 4, 1994 (see documents B/A/XVI/1 and 1 Add.) and invited the Assembly to decide of what the preparatory document for the present session of the Committee should consist (document B/A/XVI/1, paragraph 7). At the conclusion of its session, the Assembly decided that the memorandum for the present session of the Committee should consist of the provisional document prepared by the International Bureau with an annex including the above-mentioned comments. In keeping with the decision of the Assembly, the above-mentioned comments are included as Annex III to the present memorandum. 5
INTRODUCTION