EXERCISE AND TRANSFER OF ECONOMIC RIGHTS
81. In the memorandum prepared for the first session of the Committee, the International Bureau noted that the Rome Convention was, in general, based on the principle of contractual freedom, but that the national laws of some countries contained provisions restricting such freedom by limiting or precluding the transferability of certain rights. It was said that such provisions raised problems involving conflicts of laws, and in particular, in respect of whether contracts concluded in countries where the rights concerned were alienable should be given effect in countries where such rights were inalienable. It was noted that, until now, the solutions had been left to private international law, but that increased attention was being paid to the need for international norms, both at the bilateral and multilateral levels. Accordingly, the International Bureau proposed that the Committee discuss whether the possible instrument would be a vehicle for international norms to regulate the private international law aspects of the transfer and exercise of economic rights of performers and producers of phonograms, and, if so, what those norms should be.
82. The Committee expressed divided opinions when it considered the aforementioned questions, and the Chairman said that further analysis should be carried out before a final position was taken. After consultation with the Director General, the Chairman suggested that the International Bureau issue a circular letter inviting Governments and non-governmental organizations to indicate whether they considered provisions on exercise and transfer of rights desirable, and if they did, to propose specific provisions that they would like to have included in the new instrument, with the necessary, explanatory comments, in the style of the memorandum.
83. The said circular letter was issued on November 30, 1993, and, as of March 1, 1994, 18 responses had been received. Ten responses were received from governments, namely, from Belgium, Brazil, Colombia, Ecuador, El Salvador, Hungary, Ireland, Mexico, the Netherlands and Spain. One response was received from an intergovernmental organization, namely, from the European Commission, and seven responses were received from international nongovernmental organizations, namely, from the Societe civile pour l'administration des droits des artistes et musiciens interpretes (ADAMI) the International Literary and Artistic Association (ALAI); the Associacao Portuguesa de Actores (APA); the International Bureau of Societies Administering the Rights of Mechanical Recording and Reproduction (BIEM); the European Broadcasting Union (EBU); the International Federation of Musicians (FIM); and the International Association of Broadcasting (IAB).
84. All but two of the responses from governments stated that the possible new instrument should not contain provisions on the exercise and transfer of economic rights; the European Commission expressed the same view.
85. The two governments which expressed support for including provisions on the transfer and exercise of economic rights were the Governments of El Salvador and Mexico. The response from the Government of El Salvador stated that the Government was in favor of provisions on the exercise and
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transfer of rights. The response did not include specific proposals, but simply referred to the copyright and neighboring rights legislation of El Salvador, containing provisions that regulate transfers of rights in detail, in the manner traditional to countries following the civil-lair tradition. The response from the Government of Mexico stated that, if the possible instrument only included provisions in respect of performances fixed in phonograms, such provisions should require that contracts for the use of performances be in writing, and should state that producers of phonograms have the right to authorize or prohibit the reproduction, first distribution, and rental of the original or copies of phonograms. If the possible instrument included provisions in respect of all performances, whether or not fixed in phonograms, such provisions should state that, absent agreement to the contrary, the appearance of performers in radio and television programs should not give broadcasting organizations the right to reproduce fixations of such appearances; such provisions should also grant to broadcasting organizations the right to make ephemeral recordings, for later broadcast, of performances.
86. Of the responses from international non-governmental organizations, ALAI, EBU and IAB took the view that such provisions should be left out of the possible instrument. BIEM took no position but indicated that it would follow developments closely. The remaining three organizations, ADAMI, APA, and FIM, argued that the instrument should contain provisions on exercise and transfer of rights in order to ensure that performers were protected against transfers of their rights to producers or other entities with greater bargaining power. In particular, it was said that any rights to remuneration provided under the instrument should only be transferable to collective administration organizations.
87. It seems, on the basis of the Committee's discussion and the responses to the aforementioned circular letter, that there is insufficient support for the time being for including provisions on the exercise and transfer of economic rights of performers and producers of phonograms in the new instrument.