CRITERIA OF ELIGIBILITY FOR 
PROTECTION UNDER THE POSSIBLE
INSTRUMENT
 

107. During its first session, the Committee did not discuss the International Bureau's proposals in respect of the criteria of eligibility for protection of performers and producers of phonograms under the possible instrument. Accordingly, the said proposals are resubmitted for consideration during this session.

108. The Rome Convention, in its Articles 4 and 5, determines the criteria of eligibility for protection under the Convention for performers and producers of phonograms, respectively, in the following way.

109. In the case of performers, protection ("national treatment") is granted it any of the following conditions are met: (i) the performance takes place in another Contracting State; (ii) the performance is incorporated in a phonogram protected by the Convention; (iii) the performance, not being fixed on a phonogram, is carried by a broadcast which is protected by the Convention.

110. In the case of producers of phonograms, protection ("national treatment") is granted if any of the following conditions are met: (i) the producer of the phonogram is a national of another Contracting State (criterion of nationality); (ii) the first fixation of the sound(s] [were) made in another Contracting State (criterion of fixation), (iii) the phonogram was first published in another Contracting State (criterion of publication). Under Article 5.2, if a phonogram was first published in a non-contracting State but if it was also published, within 30 days of its first. publication., in a Contracting State (simultaneous publication), it is considered as first published in the Contracting State. Article 5.3 allows any Contracting State to declare that it will not apply the criterion. of publication or, alternatively, the criterion of fixation. Furthermore, Article 17 of the Convention provides that any State which, on October 26, 1961 (the date of the finalization of the Convention) grants protection to producers of phonograms solely on the basis of the criterion of fixation may, at the time of ratification, acceptance or accession, declare that it will apply, for the purposes of the above-mentioned Article 5, the criterion of fixation alone and, for the purposes of paragraph 1(a)(iii) and (iv) of Article 16 (concerning certain possible reservations), the criterion of fixation instead of the criterion of nationality.

111. While the application of the! same criteria of eligibility for protection. seems appropriate in the instrument, the application of reservations mentioned in the last two sentences of the preceding paragraphs seems no longer desirable in the light of generally accepted international standards,

112. It is proposed that the instrument provide that it is applicable to performers if any of the following conditions are met:

(a) the live performance takes place in another country Party to the instrument;

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(b) the performance is fixed in a phonogram protected by the instrument;

(c) the live performance is communicated to the public by an organization whose headquarters is situated in another country party _to the instrument or communicated to the public from a place situated in another country party to the instrument.

113. it is proposed that the instrument provide that it is applicable to producers of phonograms if any of the following conditions are met:

(a) the producer of phonograms is a national of, has his or its headquarters or habitual residence in another country party to the instrument;

(b) the first fixation of the sounds, or of the digital representations of sounds, was made in another country party to the instrument;

(c) the phonogram was first published in another country party to the instrument, where a phonogram is to be also considered as having been first published in a country if it is published in that country within thirty days of its actual first publication in Another country.

[Annex I follows]

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