DEFINITIONS
 

14. In the aforementioned memorandum prepared for the first two sessions of the Committee, the International Bureau proposed a series of definitions, some of which were based on terms defined in Article 3 of the Rome Convention with some modifications, and some of which were new. The purpose of modifying existing definitions and proposing new ones was to take into account technological developments since conclusion of the Rome Convention in 1961. The Committee did not discuss the definitions separately, but suggestions for improvements or modifications were made during the discussion of other items on the agenda, in particular, in respect of the economic rights of performers in their performances fixed in phonograms and producers of phonograms in their phonograms. The definitions proposed by the International Bureau, taking into account the said suggestions, are resubmitted for the consideration of the Committee.

15. Article 3(a) of the Rome Convention defines "performers" as follows: "'performers' means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in or otherwise perform literary or artistic works." Article 9 of the Convention adds the following: "Any Contracting State may, by its domestic laws and regulations, extend the protection provided for in this Convention to artists who do not perform literary and artistic works."

16. The usefulness of Article 9 of the Rome Convention was questioned by various delegations at the Diplomatic Conference in 1961. From a practical point of view, the provision is superfluous since, even without it, any country party to the Convention might extend the scope of artists covered by the definition of "Performers." It was nevertheless included in the Convention because several other delegations felt that it may serve as a reminder to countries party to the Convention that they were not obliged to limit protection to performers of literary and artistic works.

17. It is quite obvious that a provision in a national law which would merely state that "artists who do not perform literary or artistic works" are also performers would create legal uncertainty since, on the basis of such an open-ended definition, in many cases, users (such as broadcasting organizations could not know clearly whether a production is a protected performance or not, since this definition does not specify which acts are covered.

18. There are two categories of performers in respect of which extension of the definition seems desirable. The first category is that of variety and circus artists which has always been considered as the most obvious one to which Article 9 of the Rome Convention could apply. The second category is that of artists performing expressions of folklore. The absence of a reference to performances of expressions of folklore seems to be a real deficiency in the definition of 'performers" As a result of the work of the WIPO/Unesco Committee of Governmental Experts on the Intellectual Property Aspects of the Protection of Expressions of Folklore (Geneva, June-July 1982), which adopted "Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions," it was clarified that expressions of folklore do not correspond to the concept of literary and artistic works (and, thus, should be granted

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sui generis protection). It seems that the performances of expressions of folklore (such as folk songs, instrumental folk music, folk dances, folk plays, folk poetry and folk tales) deserve the same protection as the performances of literary and artistic works.

19. On the basis of the discussions in the Committee, there are two aspects of the notion of "performers," in respect of which clarification or at least further discussion may be necessary.

20. The first aspect relates to those cases where not a performance of a work or an expression of folklore is involved, but only such stylistic elements as the individual phrasing or dynamics of sounds or the rhythm of musical performances. Through the use of electronic, and particularly digital, technology (for example, digital sampling), it is now possible to fix, manipulate and use for the production of phonograms even very small parts of performances in such a way. This is evidenced, for example, by the commercial availability of libraries of digitally-fixed sounds, such as sounds of single instruments or sections of orchestras (see, in this respect, also the discussion of the proposed definition. of "producer of phonograms," below). The Committee may wish to discuss such uses of parts and stylistic elements of performances from the viewpoint of the definition of performers. A clear distinction seems, however, necessary between the use of parts of performance for the purpose of identifying and extracting the stylistic elements, on the one hand, and the use of stylistic elements for the production of phonograms, on the other. For the former use, the right of reproduction may be evoked,, if the use amounts to a partial reproduction (see paragraph 25, below); if, however, the use concerns only insignificant parts, it is irrelevant from the viewpoint of that right. In the latter case, it is actually not the performance or a part of it which is used. At the first two sessions, it seemed that the Committee would consider premature extending the definition beyond performances proper to such stylistic elements of performances.

21. The other aspect is the case of actors who create performances by reading books aloud for fixation and marketing in the form of so- called "talking books." This activity has become an area of significant employment for actors in recent years, and, during the first session of the Committee, it was proposed that it be mentioned in the definition. It seems, however, that in the proposed definition the words "deliver" and "declaim" are sufficiently broad to cover such activity. Nevertheless, the Committee still may wish to consider whether this kind of activity should be expressly mentioned as coming within the scope of the definition.

22. Article 3(b) of the Rome Convention defines "phonogram" as follows, "'phonogram' means any exclusively aural fixation of sounds of a performance or of other sounds." With the advent. of digital technology, it is doubtful whether this definition is still suitable. It is true that analog fixations--and thus records or tapes made by analog technology--are always fixations of sounds. However, phonograms produced by means of digital technology are not necessarily fixations of sounds. They frequently are, but they may include or consist of codes that can be used to produce sounds without having fixed any sounds (in the sense that no sounds actually existed which then would have been fixed but which can be made audible by means of appropriate electronic equipment). Digital representations of sounds may thus be either originated from a recording of sounds or from direct production of their codes through computers. Consequently, it seems desirable to modify the definition of "phonograms" so that it covet fixations of digital representations of sounds as well as fixations of sounds.

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23. If the definition of "phonogram" is changed, as outlined above, certain changes become inevitable also in the definition of "producer of phonograms." This definition, in Article 3(c) of the Rome Convention, reads as follows: producer of phonograms' means the person who, or the legal entity which, first fixes the sounds of a performance or other sounds." The identification of the act of first fixation has not always been simple even in the case of analog phonograms. For many years, recording technology has made it possible to mix sounds fixed at different times and places. During the 1960s, as a result of the development of multi-track analog recording, such mixing became easier and widespread. Digital technology has produced further, spectacular developments in this field. As mentioned, there are now companies that commercialize entire catalogues of digital representations of sounds (for example, sounds of single instruments or sections of orchestras) for incorporation into phonograms. Digital "re-mastering" of fixations of performances (such as removing noises and "bad notes," strengthening, lengthening, shortening or otherwise altering notes) makes the identification of a given fixation even more difficult.

24. The new technologies have also raised questions concerning the suitability of the definition of "publication" included in Article 3(d) of the Rome Convention, which reads as follows: "'publication' means the offering of copies of a phonogram to the public in reasonable quantity" (emphasis added). Phonograms can be made available to the public not only through the offering of copies, but also through communication to the public of the sounds, either through radio waves or through wires, for example, through electronic retrieval ("digital delivery") systems, which make it possible for those who are connected to such systems to listen to a given phonogram at any time of their choice. The effect of making phonograms available by means of such systems is practically the same as the traditional publication of copies. Therefore, it seems justified to extend the definition of "publication" to cover such cases.

25. The definition of "reproduction" in Article 3(e) of the Rome Convention--which states simply that "'reproduction' means the making of a copy or copies of a fixation"--also requires modernization. It seems that the definition should refer to the making of copies of fixations of performances included in phonograms, as well as to the making of copies of phonograms, since, in the case of the rights of performers, it is the performance fixed in a phonogram which is the object of protection. During the first session of the Committee, it was not thought necessary to provide that "reproduction" concluded making copies of a phonogram in a collection or combination of phonograms; accordingly, the reference does not appear in the definition or in the proposal for recognition of the right of reproduction, below. The Committee also discussed whether partial reproduction and electronic storage of phonograms and performances fixed in then should be included in the definition. It seems justified that the definition Should cover partial reproduction of phonograms and performances fixed in them, as well as Storage, by electronic means, of Phonograms and performances fixed in them, regardless of the duration of the storage. In the field of copyright, it is generally accepted that storage of literary and artistic works in the memory of a computer, even for a limited time, is a reproduction of such works, and there seems to be no logical reason that a different principle should apply to the storage of phonograms and fixed performances. Finally, in respect of partial reproduction, the term "copy" involves a determination of substantial similarity; whether a partial reproduction of a phonogram, or of a performance fixed in a phonogram, is. deemed a "copy" of such phonogram or performance, will depend upon the degree to which the applicable national law and jurisprudence include criteria of substantiality and similarity in dealing with the rights of performers and producers of phonograms.

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26. "Fixation" is not defined in the Rome Convention, but it appears in significant provisions. Under Article 5, the location where first fixation takes place is one of the points of attachment for the protection of phonograms (likewise, under Article 4(b), national treatment is to be granted to performers whose performances are incorporated in phonograms protected under Article 5), and under Article 14 the term of protection for phonograms and performances incorporated therein is to be computed from the end of the year in which the fixation was made. The "Model Law concerning the Protection of Performers, Producers of Phonograms and Broadcasting Organizations," which was drawn up in 1974 under the auspices of the Intergovernmental Committee established by Article 32 of the Rome Convention, defines "fixation" as "the embodiment of sounds, images or both in a material form sufficiently permaneno or stable to permit them to be perceived, reproduced, or otherwise communicated during the period of more than transitory duration." For the! reasons discussed above in connection with the definitions of "phonogram" and "producers of phonograms," the notion of fixation has undergone various changes, and the definition in the above-mentioned Model Law is to be modified. The phrase "during the period of more than transitory duration" should not be retained, in order to ensure that excerpts of performances that are used in the context of, for example, digital. sampling, are protected as fixations regardless of their duration. See also chapter VI, below, for a discussion of the criterion of fixation in respect of the term of protection of phonograms.

27. In the original proposals of the International Bureau, the definition of "communication to the public" was intended to also cover the traditional notions of "broadcasting" and "rebroadcasting" as defined under Article 3(f) and (g) of the Rome Convention. Under item (f) of Article 3, "'broadcasting' means the transmission by wireless means for public reception of sounds or images and sounds"; and, under item (g) of Article 3, "'rebroadcasting' means the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization." It was stated that broadcasting and communication to the public by wire (cable, telephone line, fiber- optic network) are becoming ever more interchangeable, and that, while no definition of 'communication to the public" appeared in the Rome Convention, it seemed that the common features of communicating performances and phonograms to the public could be expressed in a single definition. During the first session of the Committee, there was support for maintaining, at least for the present, the distinctions among the various means of communication to the public. Accordingly, a definition of been added, which includes broadcasting by satellite. It does not seem necessary to add a definition of "rebroadcasting," which is also broadcasting but with the qualification that the nature of the broadcast is specified, for example, a broadcast originated by another organization. All forms of communication to the public other than by broadcasting (i.e., by wireless means), such as cable and fiber-optic transmission, are intended to be covered by the definition of "communication to the public."

28. In addition to the definitions included in Article 3 of the Rome Convention and the definition of "communication to the public," the definitions of the following notions seem also desirable: "rental" and "public lending." The relevant definitions in paragraph 29, below, seem, in general, self-explanatory, subject to the following two comments. First, following a suggestion made during the first session of the Committee, the expression "for profit-making Purposes" in the definition of "rental" has been replaced by "for commercial purposes" Second, in respect of the definition

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Of "Public lending," while the Committee did not accept the proposal of the International Bureau to provide a right of public lending that would survive the exhaustion of rights through, for example, first sale of copies of phonograms, the definition is retained since public lending is a means by which the proposed right of distribution might be exercised, subject to any possible exhaustion.

29.It is proposed that the instrument include the following definitions :

(a) "performers" are actors, singers, musicians, dancers and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works or expressions of folklore, as well as variety and circus artists;

(b) "phonogram" is the fixation other sounds, or of the digital representations of sounds, from which sounds can be produced through an appropriate device; an audiovisual fixation, the digital representation of sounds and images, or the sound part of either is not a phonogram;

(c) "fixation" is the embodiment of sounds or images, or of the digital representations thereof, from which the sounds and images can be made audible and visible through an appropriate device;

(d) "producer of phonograms" is the person, or the legal entity, who or which first fixes the sounds of a performance or other sounds, or who first fixes the digital representations of sounds;

(e) "publication" of a phonogram is

(i) offering of copies of a phonogram to the public in a reasonable quantity, or

(ii) making the sounds fixed in a phonogram or the digital representations of sounds available to the public through an electronic retrieval ("digital delivery") system;

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(f) "reproduction" of a phonogram, or of a performance fixed in a phonogram, is the making of a copy, in whole or in part, regardless of the means by which, and the medium in storage of the phonogram, or the performance fixed in a phonogram, in electronic format, regardless of the duration of the storage;

(g) "rental" of a phonogram is any transfer of the possession of a copy of a phonogram for a limited period of time, for commercial purposes;