TERM OF PROTECTION OF ECONOMIC RIGHTS
74. In the memorandum prepared for the first two sessions of the Committee, the International Bureau proposed extending the term of protection of the economic rights of performers, and producers-of phonograms beyond the terms provided in the Rome Convention and the Phonograms Convention. The Committee did not discuss these proposals, and they are resubmitted for consideration during this session. For the discussion and proposals in respect of the term of protection of the moral rights of performers, see chapter II, above.
75. Under Article 14 of the Rome Convention, "[t]he term of protection to be granted under this Convention shall last at least until the end of a period of twenty years computed from the end of the year in which (a) the fixation was made - for phonograms and for performances incorporated therein; (b) the performance took place - for performances not incorporated in phonograms...."
76. The Phonograms Convention leaves the duration of protection to national legislation (Article 4), provided, if the domestic law prescribes a specific duration for the protection, the duration must not be less than 20 years from the end of either the year in which the sounds embodied in the phonogram were fixed or of the year in which the phonogram was first published.
77. Twenty years as a minimum term of protection is no longer sufficient, taking into account the increased quality and value, as well as the much longer commercial life of phonograms. At the national level, there is a growing trend towards providing a 50-year term of protection for performers and producers of phonograMs. This trend is also reflected in Article 14(5) of the TRIPS Agreement, which provides that the rights of performers and producers of phonograms shall last at least until the end of a period of fifty years computed from the end of the calendar year in which the fixation was made or the performance took place. The same term is hereby proposed as a minimum in the instrument.
78. As noted above, advances in recording techniques made possible by digital technology--in particular, the possibility of manipulating and combining existing fixations for inclusion in new fixations--make it difficult to identify the date of fixation of a particular phonogram. It seems, therefore, more appropriate to calculate the term of protection of economic rights, in general, from first publication, and, only in the case of non-published phonograms, from fixation.
79. It is submitted that there is no point in establishing a term of protection for unfixed performances, since, absent fixation, such performances do not survive the time when they take place.
80. It is proposed that the instrument provide that the term of protection to be granted under the instrument to performers and to producers of phonograms subsist at least until the end of a period of 50 years, computed
(a) from the end of the year in which the fixation of the performance was made;
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(b) from the end of the year in which the phonogram was published and, where the phonogram is not published until the end of the 50th year following the year when the fixation was made, from the end of the year in which the fixation was made.
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