 NATIONAL TREATMENT

101. In the memorandum for the first session of the Committee, the International Bureau noted that Article 2(1) of the Rome Convention defined "national treatment" as meaning "the treatment accorded by the domestic law of the Contracting State in which protection is claimed ... to performers who are its nationals, as regards performances taking place, broadcast, or first fixed, on its territory ... [and) to producers of phonograms who are its nationals, as regards phonograms first fixed or first published on its territory." It was also noted that Article 2(2) clarified that national treatment was subject to the protection specifically guaranteed (with the limitations specifically allowed) in the Convention, while Articles 4 and 5 obliged Contracting States to grant national treatment to performers and phonogram producers, respectively, protected under the Convention.

102. It was proposed that the principle of national treatment be affirmed in the possible new instrument, i.e., that States party to the instrument would be required to grant national treatment in respect of rights which their national laws "do now or may hereinafter grant" to eligible performers and producers of phonograms. Also, it was proposed that a specific provision be included in respect of collective administration of rights, particularly to guarantee that remuneration collected for foreign rights owners not be used, without their express consent, for so-called collective (national) purposes.

103. The Committee generally supported the application of national treatment in the new instrument, but opinions differed on the question of the rights to which national treatment would apply, and in particular with respect to rights, other than those protected under the possible instrument, which States party might grant to performers and, producers of phonograms in the future. It was said that the application of national treatment could not be determined until the contents of the possible instrument were known, and that the relationship between national treatment under the instrument and national. treatment under the existing international conventions would have to be decided before final positions could be taken. The opinion was also expressed that the specific reference to application of national treatment in the context of collective administration was unnecessary and redundant.

104. The TRIPS agreement contains a provision concerning the application of national treatment to performers and producers of phonograms. Article 3(1) of the agreement provides as follows, "Each Member shall accord to the nationals of other Members treatment, no less favorable that that it accords to its own nationals with regard to the protection of intellectual property, subject to the exceptions provided in ... the Rome Convention.... In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies, in respect of the rights provided under this Agreement."

105. On the basis of the Committee's discussion, it seems that there is support for restatement: of the principle of national treatment in the possible instrument, as a general rule and subject to as few exceptions as possible. In light of the differences of opinion referred to in the preceding paragraphs concerning the rights to which national treatment would apply and the relationship of the instrument to other international conventions, it does not seem practical to continue the discussion in respect of the application of national treatment until the contents of the instrument are more clearly known.

INR/CE/III/2 page 41

106. Accordingly, it is proposed that consideration of the question of the applicability of national treatment take place at a later session of the committee.