ANNEXES
LETTER OF FEBRUARY 22, 1994, ADDRESSED BY
MR. J.F. MOGG, DIRECTOR GENERAL,
DIRECTORATE-GENERAL, INTERNAL MARKET AND
FINANCIAL SERVICES, COMMISSION OF THE
EUROPEAN COMMUNITIES, TO THE
DIRECTOR GENERAL OF WIPO 1. The text of the letter reads as follows:
"I am writing to you in connection with the work of the Committee of Experts of the World Intellectual Property Organisation on a possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms. First, I would like to address the question of the coverage of the rights of performers in their visual, audiovisual as well as audio performances for the future meetings. Secondly, I would like to reply to your circular letter of 30 November, 1993 (ref. C.L 1098 DV-08) concerning the question of the transfer and exercise of rights.
"With regard to the coverage of a possible New Instrument, the position of the European Union has always been that, in order to take full account of the interests of all parties concerned, the New Instrument should cover the rights of performers in all performances, whether of an audio, visual or audiovisual character, and in fixations of these performances. As you may recall, statements to this effect were made by the delegate of the European Commission at the First
Session of the Committee of Experts, held from 28 June to 2 July, 1993 and are recorded in the official Report (Doc. INR/CE/I/3 of 2 July, 1993. in particular paragraph 18). The conclusion reached by the Chairman on this point was that nothing precluded continuing discussion of the question of possible provisions on the rights of performers in audiovisual productions and you yourself concluded that, consequently, the International Bureau would prepare a document on audiovisual fixations.
"In order to assist the work of the International Bureau in this respect, I submit the attached document which provides a version of the document previously circulated by the International Bureau amended with respect to possible provisions giving effect to the approach described above. The document further takes account of the general view expressed in the Committee that it would be useful for the provisions on performers and phonogram producers to be set out separately. This document provides a basis on which the discussion An this area could be continued in accordance with the conclusions of the last meeting of the Committee.
9764D/COP/0771D
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INR/CE/III/2 Annex I, page 2
"The document is submitted without prejudice to the position of the European Union on the substantive rights involved, or any other part of present or future documents prepared by the International Bureau, which either appear sufficiently widely drafted as they stand or could more appropriately be reviewed at a later stage in the light of progress made on the substantive issues. The presentation of these adaptations based on the text already circulated is not, of course, intended to restrict the development of this part of the text by the International Bureau to take account of the discussions in the Committee so far.
"As to your above-mentioned circular letter of 30 November 1993, I would like to confirm that, in the view of the European Commission the subject of the exercise and transferability of rights is not suitable to be included in the New Instrument. This view has already been expressed by a number of delegations, including the representative of the European Commission, during the Second Session of the Committee of Experts held from 8 to 12 November 1993 (Doc. INR/CE/II/1 of 12 November 1993, in particular paragraph 64).
"In general, these delegations referred to the related aspects of, first, the transferability of rights in domestic law, second, conflict of laws issues and, third, implications for the principle of national. treatment. It seems clear that some of these aspects give rise to issues of a considerably broader content than generally envisaged in the terms of reference of the Committee of Experts. More particularly, these delegations indicated the relevance of considerations specific to domestic legal regimes involving concepts of public order and public policy and made reference to existing international conventions regulating questions of choice of applicable law, rules governing the forum for contractual litigation and the enforceability of foreign judgments in the context of commercial relations more generally. In this latter respect, the conventions which already exist between Member States of the European Union or between these States and the members of the European Free Trade Association include the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, the 1988 Lugano Convention and the 1980 Rome Convention on the Law Applicable to Contractual Obligations.
"It seems, therefore, that the scope for the development of specific rules on conflicts of laws within the framework of the New Instrument would be very restricted and give rise to questions of compatibility with a number of related domestic intellectual property and wider-ranging domestic and international principles and rules of law. The problems sought to be addressed by the provisions on the exercise and transfer of rights have also not yet been sufficiently clarified for these various aspects to be properly assessed.
"In conclusion, the discussion of such issues in the context of the New Instrument would appear likely to over extend and unnecessarily Complicate the work of the Committee. This position is without prejudice. to the further elaboration of arguments already presented, or any additional considerations as might appear appropriate at a later date."
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INR/CE/III/2 Annex I, page 3
2. A document was attached to the letter which reads as follows:
Coverage audio visual and audiovisual performances and fixations of such performances
Possible Text to form the basis for Continuing Discussion
Phonograms Performances
56. it is proposed that the instrument, 56. It is proposed that the instrument,
subject to the provisions proposed in subject to the provisions proposed in
paragraphs' 57 and 58, below, provide paragraphs 57 and 58, below, provide for
for any producer of phonograms in any performer in respect of his fixed
respect of his or its phonogram, the performance, the exclusive right to
exclusive right to authorize the authorize the following acts :
following acts:
(a) the reproduction of the phonogram, (a) the reproduction of the fixation of
including the reproduction of the the performance, including the
phonogram, in another phonogram reproduction of the fixation of the
consisting of a collection (combination) performance in another fixation
of phonograms; consisting of a collection (combination)
of fixations of performances;
(b) the distribution of copies of the
phonogram through sale or other transfer (b) the distribution of copies of the
of ownership, or through rental, public fixation of the performance through sale
lending or other transfer of possession; or other transfer of ownership, or
through rental, public lending or other
(c) the importation of copies of the transfer of possession ;
phonogram, even following the sale or
other transfer of ownership of the (c) the importation of copies of the
copies by or pursuant to his or its fixation of the performance, even
(implicit or explicit) authorization and following the sale or other transfer of
copies were made with or without his or to his (implicit or explicit)
Its authorization, into the country, or authorization and irrespective of
where two or more countries have formed whether the imported copies were made
a single economic territory or customs with or without his authorization, into
union for purposes including the free the country, or where two or more
circulation of goods, and the national countries have formed a single economic
legislation of the countries concerned territory or customs union for purposes
so provides, into any of the countries including the free circulation of goods
and the national legislation of the
countries concerned so provides, into any
of the countries concerned;
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INR/CE/III/2 Annex I, page 4
Phonograms Performances
(d) the adaptation of the phonogram; (d) the adaptation of the fixation
of the performance ;
(e) the communication to the public (e) the communication to the public
of the phonogram; and of the fixation of the performance ;
(f) the public performances of the (f) the public performances of the
phonogram. fixation of the performance.
57. It is proposed that the 57. It is proposed that the
instrument provide that instrument provided that
(a) it is a matter for national (a) it is a matter for national
legislation in the countries party legislation in the countries party
to the instrument to provide that to the instrument to provide that the
the right mentioned in item (b) of right mentioned in item (b) of the
the preceding paragraph is not preceding paragraph is not applicable
applicable in respect of any copy in respect of any copy of the fixation
of the phonogram which has been sold of the performance which has been sold
or the ownership of which has been or the ownership of which has been
otherwise transferred by or pursuant otherwise transferred by or pursuant
to an (implicit or explicit) to an (implicit of explicit)
authorization of the producer of authorization of the performer
phonograms concerned; concerned;
(b) the faculty provided for (b) the faculty provided for
national legislation under item (a) national legislation under item (a)
does not apply in the case of the does not apply in the case of the
rental (and public lending) of copies rental [and public lending] of copies
of phonograms; of fixations of performances;
[(c) notwithstanding item (b), any [(c) notwithstanding item (b), any
country that, on the date of the country that, on the date of the
adoption of the instrument, has in adoption of the instrument, has in
force provisions under which only a force provisions under which only a
right to remuneration is recognized right to remuneration is recognised
for the rental of copies of for the rental of copes of fixations
phonograms, may make a reservation of performances, may make a
declaring that it will not recognize reservation declaring that it will
the exclusive right to authorize the not recognize the exclusive right to
rental of such copies after the Copies authorize the rental of such copies
concerned have been sold or their after the copies concerned have been
ownership has been otherwise otherwise transferred by or pursuant
transferred by or pursuant to an to an (implicit or explicit)
(implicit or explicit) authorization authorization of the performers
of the producers of phonograms concerned, but will maintain, at
concerned, but will maintain, at least temporarily, the right to
least temporarily, the right to remuneration;]
remuneration;]
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INR/CE/IIX/2 Annex I, page 5
Phonograms Performances
(d) the right mentioned in (d) the right mentioned in
item (c) of the preceding paragraph item (c) of the preceding paragraph
does not apply where the importation does not apply where the importation
is effected by a person for his is effected by a person for his
personal and non-commercial use as personal and non-commercial use as
part of his personal luggage; part of his personal luggage;
(e) it is a matter for national (e) it is a matter for national
legislation in the countries party legislation in the countries party
to the instrument to provide for the to the instrument to provide for the
limitation of the rights mentioned limitation of the rights mentioned
in items (e) and (f) of the preceding in items (e) and (f) of the preceding
paragraph to a right to equitable paragraph to a right to equitable
remuneration; remuneration;
(f) the faculty provided for (f) the faculty provided for
national legislation under the national legislation under the
preceding item does not apply in the preceding item dies not apply in the
case of digital communication to the case of digital communication to the
public of phonograms; public of fixations of performances;
(g) it is also a matter for (g) It is also a matter for
national legislation in the countries national legislation in the countries
party to the instrument to provide party to the instrument to provide
for the same kinds of limitations for the same kinds of limitations
with regard to the protection of with regard to the protection of
producers of phonograms as those performers as those which may be
which may be provided for under the provided for under the Berne
Berne Convention, and the protocol Convention, and the protocol to it,
to it, in connection with the in connection with the protection of
protection of copyright in literary copyright in literary and artistic
and artistic works [, with the work [, with the exception of
exception of non-voluntary licenses non-voluntary licences which may be
which may be provided for only to the provided for only to the extent to
extent to which they are compatible which they are compatible with the
with the instrument]; instruments];
58. It is proposed that the 58. It is proposed that the
instrument clarify that it is an instrument clarify that it is an
obligation of countries party to obligation of countries party to
the instrument to provide a right the instrument to provide a right
to remuneration for those producers to remuneration for those performers
of phonograms in respect of whose in respect of whose fixed performances
phonograms it may be reasonably it may be reasonably presumed that
presumed that they have been subject they have been subject of private
of private reproduction for personal reproduction for personal purposes,
purposes, through a payment on through a payment on reproduction
reproduction equipment or on blank equipment or on blank recording
recording material, or on both, material, or on both, normally used
normally used for such reproduction, for such reproduction,
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INR/CE/III/2
Annex I, page 6
Phonograms Performance
(a) to be paid by those who (a) to be paid by those who
manufacture such equipment or manufacture such equipment or
material (except for the equipment material (except for the equipment
and material that are exported) or and material that are exported) or
who import such equipment or material who import such equipment or material
(except where the importation is effected by a person for his personal
and non-commercial use as part of his and non-commercial use as part of his
personal luggage), personal luggage) ;
(b) to be collected by a collective (b) to be collected by a collective
administration organization; and administration organization; and
(c) after the deduction of the (c) after the deduction of the
cost of administration, to be cost of administration, to be
distributed to the producers of distributed to the performers
phonograms concerned. concerned.
[Annex II follows]
49
INR/CE/III/2
ANNEX II
GATT TEXT CONCERNING ENFORCEMENT OF RIGHTS
1. The letter of Sweden, signed by Mr. Henry Olsson (Legal Counsel,
Ministry of Justice) dated March 2, 1993, and received by the
International Bureau of WIPO on March 3, 1993, reads as follows:
"I am writing to you with reference to the forthcoming
meetings of the Committees of Experts on the possible
Protocol to. the Berne Convention and-the envisaged new
instrument on the protection of producers of phonograms and
of performing artists.
"I understand that the working documents for those
sessions of the Committees of Experts are being prepared.
With reference to those documents, I would, in my capacity as
Head of the Delegation of Sweden to 'the sessions of the
Committees, like to express the wish that the provisions on
enforcement in the proposed GATT/TRIPS text in the December
1991 version ('Part III, Enforcement of Intellectual Property
Rights' in the 'Agreement on Trade-Related Aspects of
Intellectual Property Rights, including Trade in Counterfeit
Goods (Annex III)') be included in the working documents as
proposed Annexes to the possible Protocol and to the new
instrument, respectively, with no additions in substance and
with only such technical amendments which are absolutely
necessary to make the text applicable in that context and for
those categories which are to be covered by the two
instruments, Each Annex should, in our view, form an integral
part of the main instrument."
2. The letter of Australia, signed by Mr. C.C. Creswell (Acting
First Assistant Secretary, Attorney General's Department, Business Law
Division), dated March 5, 1993, and received by the International
Bureau of WIPO on the same day, reads as follows:
"Possible protocol to the Berne Convention; proposed
new instrument for protection of performers and sound
recording producers:
"I am writing to you regarding the preparation that I
understand is being undertaken by WIPO of background papers
for the forthcoming meetings of the Committees of Experts on
the above two proposed instruments, scheduled for 21 June to
2 July.
"I understand that Henry Olsson has recently been in
touch with you regarding agreement reached at a meeting in
Brussels of representatives of countries, including
Australia, forming the 'Stockholm Group' that has been formed
to exchange views on a possible approach to the preparation
Of the two proposed instruments. I understand that he has
informed you that there was general agreement at; the
Brussels meeting that there should be an annex to the
proposed instruments reproducing Part III of the December
1991 ('Dunkel') draft of the proposed GATT TRIPs text on
enforcement, with such technical amendments as would be
necessary to make that Part applicable to the categories of
intellectual property to be covered by the two instruments.
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INR/CE/III/2
Annex II, page 2
"I wish to confirm that Mr Olsson's proposal is
consistent with the policy of the Australian Government, as
reflected in its public statements affirming its acceptance
of the GATT Dunkel text as a whole. I must also bring to
your notice the fact that there will be a Federal election in
Australia on 13 March, and that the continuation of the
policy of the Australian Government on these and other
matters will depend on the endorsement of the Government that
is formed following the outcome of that election. Should
there be a change in the Australian, Government policy
relevant to the work of the two WIPO Committees of Experts on
the above instruments, I shall, of course, notify the
Committees of Experts and WIPO at an opportune time."
3. The letter of the United States of America, signed by Mr. Ralph
Oman (Register of Copyrights), dated March 5, 1993, and received by
the International Bureau of WIPO on March 8, 1993, reads as follows:
"In anticipation of the receipt in March of the
preparatory documents for the meetings of the Committee of
Experts on a Possible Protocol to the Berne Convention
(protocol) and the Committee of Experts on a Possible
Instrument on the Protection of the Rights of Performers and
Producers of Phonograms (new instrument), the U.S. Government
has engaged in detailed discussions of' issues relevant to
those meetings. One issue of common interest to all
concerned is enforcement of rights under the protocol and new
instrument.
"I want to take this opportunity to present the U.S.
Government's views on the provisions regarding enforcement of
rights that should be included in the possible protocol and
new instrument. We believe that the provisions contained in
Part III, Enforcement of Intellectual Property Rights, of the
draft text of December 20, 1991, concerning Trade-Related
Aspects of Intellectual Property, Including Trade in
Counterfeit Goods (TRIPS), should be, with only technical
changes necessary to conform the text to the subject matter
of the protocol and new instrument, the enforcement
provisions for those documents. Moreover, we firmly believe
that the enforcement provisions should be an integral part of
each agreement and be included as annexes to the respective
agreements using the model of Article 21 and the appendix to
the Paris 1971 text of the Berne Convention, If additional
rights are envisioned, they should he considered in the
context of articles granting rights in the respective
agreements.
"The TRIPS text represents the work of several years
and contains provisions that both common and civil law
jurisdictions can accept and implement within their domestic
legal systems. Furthermore, it is a text that both developed
and developing countries have supported as an acceptable
package in the Uruguay Round context. We firmly believe that
adoption of the draft TRIPS text on enforcement will
facilitate the work of the members of the Berne Union and
permit us to focus on the other issues on which there
currently is a lesser degree of consensus"
51
INR/CE/III/2
Annex II, page 3
4. The GATT text referred to in the letters quoted under points 1 to
3, above, in the memorandum prepared for the third session of the
Committee, was reproduced from GATT document No. UTN.TNC/W/FA made
available to the International Bureau of WIPO by the Secretariat of
Gatt. The text became part of the TRIPS Agreement without any
substantive changes. What follows was reproduced from GATT document
containing the TRIPS Agreement as signed in Marrakesh on April 15,
1994.
PART III: ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
SECTION 1: GENERAL OBLIGATIONS
Article 41
1. Members shall ensure that enforcement procedures as specified in
this Part are available under their law so as to permit effective
action against any act of infringement of intellectual property rights
covered by this Agreement, including expeditious remedies to prevent
infringements and remedies which constitute a deterrent to further
infringements. These procedures shall be applied in such a manner as
to avoid the creation of barriers to legitimate trade and to provide
for safeguards against their abuse.
2. Procedures concerning the enforcement of intellectual property
rights shall be fair and equitable. They shall not be unnecessarily
complicated or costly, or entail unreasonable time-limits or
unwarranted delays.
3. Decisions on the merits of a case shall preferably be in writing
and reasoned. They shall be made available at least to the parties to
the proceeding without undue delay. Decisions on the merits of a case
shall be based only on evidence in respect of which parties were
offered the opportunity to be heard.
4. Parties to a proceeding shall have an opportunity for review by a
judicial authority of final administrative decisions and, subject to
jurisdictional provisions in a Member's law concerning the importance
of a case, of at least the legal aspects of initial judicial decisions
on the merits of a case. However, there shall be no obligation to
provide an opportunity for review of acquittals in criminal cases.
5. It is understood that this Part does not create any obligation to
put in place a judicial system for the enforcement of intellectual
property rights distinct from that for the enforcement of law in
general, nor does it affect the capacity of Members to enforce their
law in general. Nothing in this Part creates any obligation with
respect to the distribution of resources as between enforcement of
intellectual property rights and the enforcement of law in general.
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Annex II, page 4
SECTION 2: CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES
Article 42: Fair and Equitable Procedures
Members shall make available to right holders" civil judicial
procedures concerning the enforcement of any intellectual property
right covered by this Agreement. Defendants shall have the right to
written notice which is timely and contains sufficient detail,
including the basis of the claims. Parties shall be allowed to be
represented by independent legal counsel, and procedures shall not
impose overly burdensome requirements concerning mandatory personal
appearances. All parties to such procedures shall be duly entitled to
substantiate their claims and to present all relevant evidence. The
procedure shall provide a means to identify and protect confidential
information, unless this would be contrary to existing constitutional
requirements.
Article 43: Evidence
1. The judicial authorities shall have the authority, where a party
has presented reasonably available evidence sufficient to support its
claims and has specified evidence relevant to substantiation of its
claims which lies in the control of the opposing party, to order that
this evidence be produced by the opposing party, subject in
appropriate cases to conditions which ensure the protection of
confidential information.
2. In cases in which a party to a proceeding voluntarily and without
good reason refuses access to, or otherwise does not provide necessary
information within a reasonable period, or significantly impedes a
procedure relating to an enforcement action, a Member may accord
judicial authorities the authority to make preliminary and final
determinations, affirmative or negative, on the basis of the
information presented to them, including the complaint or the
allegation presented by the party adversely affected by the denial of'
access to information, subject to providing the parties an opportunity
to be heard on the allegations or evidence.
Article 44: Injunctions
1. The judicial authorities shall have the authority to order a
party to desist from an infringement, inter alia to prevent the entry
into the channels of commerce in their jurisdiction of imported goods
that involve the infringement of an intellectual property right,
immediately after customs clearance of such goods. Members are not
obliged to accord such authority in respect of protected subject
matter acquired or ordered by a person prior to knowing or having
reasonable grounds to know that dealing in such subject matter would
entail the infringement of an intellectual property right.
2. Notwithstanding the other provisions of this Part and provided
that the provisions of Part II specifically addressing use by
governments, or 'by third parties authorized by a government, without
the authorization of the right holder are complied with, Members may
limit the remedies available against
11 For the purpose of this Part, the term "right holder" includes
federations and associations having legal standing to assert such
rights.
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INR/CE/III/2
Annex II, page 5
such use to payment of remuneration in accordance with subparagraph
(h) of Article 31. In other cases, the remedies under this Part shall
apply or, where these remedies are 'inconsistent with a Member's law,
declaratory judgments and adequate compensation,shall be available.
Article 45: Damages
1. The judicial authorities shall have the authority to order the
infringer to pay the right holder damage's adequate to compensate for
the injury the right holder has suffered because of an infringement of
that person's intellectual property right by an infringer who
knowlingly, or with reasonable grounds to know. engaged in infringing
activity.
2. The judicial authorities shall also have the authority to order
the infringer to pay the right holder expenses, which may include
appropriate attorney's fees. In appropriate cases, Members may
authorize the judicial authorities to order recovery of profits and/or
payment of pre-established damages even where the infringer did not
knowingly, or with reasonable grounds to know, engage in infringing
activity.
Article 46: Other Remedies
In order to create an effective deterrent to infringement, the
judicial authorities shall have the authority to order that goods that
they have found to be infringing be, without compensation of any sort,
disposed of outside the channels of commerce in such a manner as to
avoid any harm caused to the right holder, or, unless this would be
contrary to existing constitutional requirements, destroyed. The
judicial authorities shall also have the authority to order that
materials and implements the predominant use of which has been in the
creation of the infringing goods be, without compensation of any sort,
disposed of outside the channels of commerce in such a manner as to
minimize the risks of further infringements. In considering such
requests, the need for proportionality between the seriousness of the
infringement and the remedies ordered as well as the interests of
third parties shall be taken into account. In regard to counterfeit
trademark goods, the simple removal of the trademark unlawfully
affixed shall not be sufficient, other than in exceptional cases, to
permit release of the goods into the channels of commerce.
Article 47: Right of information
Members may provide that the judicial authorities shall have the
authority, unless this would be out of proportion to the seriousness
of the infringement, to order the infringer to inform the right holder
of the identity of third persons involved in the, production and
distribution of the infringing goods or services and of their channels
of distribution.
Article 48: Indemnification of the Defendant
1. The judicial Authorities shall have the authority to order a
party at whose request measures were taken and who has abused
enforcement procedures to provide to a party wrongfully enjoined or
restrained adequate compensation for the injury suffered because of
such abuse. The judicial authorities shall also have the authority to
order the applicant to pay the defendant expenses, which may include
appropriate attorney's fees.
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Annex II, page 6
2. In respect of the administration of any law pertaining to the
protection or enforcement of intellectual property rights, Members
shall only exempt both public authorities and officials from liability
to appropriate remedial measures where actions are taken or intended
in good faith in the course of the administration of that law.
Article 49: Administrative Procedures
To the extent that any civil remedy can be ordered as a result of
administrative procedures on the merits of a case, such procedures
shall conform to principles equivalent in substance to those set forth
in this Section.
SECTION 3: PROVISIONAL MEASURES
Article 50
1. The judicial authorities shall have the authority to order prompt
and effective provisional measures:
(a) to prevent an infringement of any intellectual property
right from occurring, and in particular to prevent the entry
into the channels of commerce in their jurisdiction of goods,
including imported goods immediately after customs clearance;
(b) to preserve relevant evidence in regard to the alleged
infringement.
2. The judicial authorities shall have the authority to adopt
provisional measures inaudita altera parte where appropriate, in
particular where any delay is likely to cause irreparable harm to the
right holder, or where there is a demonstrable risk of evidence being
destroyed.
3. The judicial authorities shall. have the authority to require the
applicant to provide any reasonably avail-able evidence in order to
satisfy themselves with a sufficient degree of certainty that the
applicant its the right holder and that. the applicant's right is
being infringed or that such infringement is imminent, and to order
the applicant to provide a security or equivalent assurance sufficient
to protect the defendant and to prevent abuse.
4. Where provisional measures have been adopted inaudit altera parte
the parties affected shall be given notice, without delay after the
execution of the measures at the latest. A review, including a right
to be heard, shall take place upon request of the defendant with a
view to deciding, within a reasonable period after the notification of
the measures, whether these measures shall be modified, revoked or
confirmed.
5. The applicant may be required to supply other information
necessary for the identification of the goods concerned by the
authority that will execute the provisional measures.
6. Without prejudice to paragraph 4 provisional measures taken on
the basis of paragraphs 1 and 2 shall, upon request by the defendant,
be revoked or otherwise cease to have effect, if proceedings leading
to a decision on the merits of the case are not initiated within a
reasonable period, to be
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Annex II, page 7
determined by the judicial authority ordering the measures where a
Member's law so permits or, in the absence of such a determination,
not to exceed 20 working days or 31 calendar days, whichever is the
longer.
7. Where the provisional-measures are revoked or where they lapse
due to any act or omission by the applicant, or where it is
subsequently found that there has been no infringement or threat of
infringement of an intellectual property right, the judicial
authorities shall have the authority to order the applicant, upon
request of the defendant, to provide the defendant appropriate
compensation for any injury caused by these measures.
8. To the extent that any provisional measure can be ordered as a
result of administrative procedures, such procedures shall conform to
principles equivalent in substance to those set forth in this Section.
SECTION 4; SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES 12
Article 51; Suspension of Release by Customs Authorities
members shall, in conformity with the provisions set out below,
adopt procedures 13 to enable a right holder, who has valid grounds
for suspecting that the importation of counterfeit trademark or
pirated copyright goods 14 may take place, to lodge an application in
writing with competent authorities, administrative or judicial, for
the suspension by the customs authorities of the release into free
circulation of such goods. Members may enable such an application to
be made in respect of goods which involve other infringements of
intellectual property rights, provided that the requirements of this
Section are met. Members may also provide for corresponding
procedures concerning the suspension by the customs authorities of the
release of infringing goods destined for exportation from their
territories.
12 Where a Member has dismantled substantially all controls over
movement of goods across its border with another Member with which it
forms part of a customs union, it shall not be required to apply the
provisions of Section at that border.
13 It is understood that there shall be no obligation to apply
such procedures to imports of goods put on the market in another
country by or with the consent of the right holder, or to goods in
transit.
14 For the purposes of this Agreement:
(a) "counterfeit trademark goods" shall mean any goods,
including packaging, bearing without authorization a
trademark which is identical to the trademark validly
registered in respect of such goods, or which cannot be
distinguished in its essential aspects from such a trademark,
and which thereby infringes the rights of the owner of the
trademark in question under the law of the country of
importation;
(b) "Pirated :copyright goods" shall mean any goods which
are copies made without the consent of the right holder or
person duly authorized by the right holder in the country of
production and which are made directly or indirectly from an
article where the making of that copy would have constituted
an infringement of a copyright or a related right under the
law of the country of importation.
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Annex II, page 8
Article 52: Application
Any right holder initiating the procedures under Article 51 shall
be required to provide adequate evidence to satisfy the competent
authorities that, under the laws of the country of importation, there
is prima facie an infringement of the right holder's intellectual
property right and to supply a sufficiently detailed description of
the goods to make them readily recognizable by the customs
authorities. The competent authorities shall inform the applicant
within a reasonable period whether they have accepted the application
and, where determined by the competent authorities, the period for
which the customs authorities will take action.
Article 53: Security or Equivalent Assurance
1. The competent authorities shall have the authority to require an
applicant to provide a security or equivalent assurance sufficient to
protect the defendant and the competent authorities and to prevent
abuse. Such security or equivalent assurance shall not unreasonably
deter recourse to these procedures.
2. Where pursuant to an application under this Section the release
of goods involving industrial designs, patents, layout-designs or
undisclosed ,information into free circulation has been suspended by
customs authorities on the basis of a decision other than by a
judicial or other independent authority, and the period provided for
in Article 55 has expired without the granting of provisional relief
by the duly empowered authority, and provided that all other
conditions for importation have been complied with, the owner,
importer, or consignee of such goods shall be entitled to their
release on. the posting of a security in an amount sufficient to
protect the right holder for any infringement, Payment of such
security shall not prejudice any other remedy available to the right
holder, it being understood that the security shall be released if the
right holder fails to pursue the right of action within a reasonable
period of time.
Article 54: Notice of Suspension
The importer and the applicant shall be promptly notified of the
suspension of the release of goods according to Article 51.
Article 55 : Duration of Suspension
if, within a period riot exceeding 10 working days after the
applicant has been served notice of the suspension, the customs
authorities have not been informed that proceedings leading to a
decision on the merits of the case have been initiated by a party
other than the defendant, or that the duly empowered authority has
taken provisional measures prolonging the suspension of the release of
the goods, the goods shall be released, provided that all other
conditions for importation or exportation have been complied with; in
appropriate cases, this time-limit may be extended by another 10
working days. If proceedings leading to a decision on the merits of
the case have been initiated, a review, including a right to be heard,
shall take place upon request of the defendant with a view to
deciding, within a reasonable period, 'whether these measures shall be
modified, revoked or confirmed. Notwithstanding the above, where the
suspension of the release of goods is carried out or continued in
accordance with a provisional judicial measure, the provisions of
paragraph 6 of Article 50 shall apply.
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Article 56: Indemnification of the Importer
and of the Owner of the Goods
Relevant authorities shall have the authority to order the
applicant to pay the importer, the consignee and the owner of the
goods appropriate compensation for any injury caused to them through
the wrongful detention of goods or through the detention of goods
released pursuant to Article
Article 57: Right of Inspection and Information
Without prejudice to the protection of confidential information,
Members shall provide the competent authorities the authority to give
the right holder sufficient opportunity to have any goods detained by
the customs authorities inspected in order to substantiate the right
holder's claims. The competent authorities shall also have authority
to give the importer an equivalent opportunity to have any such goods
inspected. Where a positive determination has been made on the merits
of a case, Members may provide the competent authorities the authority
to inform the right holder of the names and addresses of the
consignor, the importer and the consignee and of the quance of the
goods in question.
Article 58: Ex Officio Action
Where Members require competent authorities to act upon their
own, initiative and to suspend the release of goods in respect of
which they have acquired prima facie evidence that an intellectual
property right is being infringed:
(a) the competent authorities may at any time seek from the
right: holder any information that may assist them to
exercise these powers,
(b) the importer and the right holder shall be promptly
notified of the suspension. Where the importer has lodged an
appeal against the suspension with the competent authorities,
the suspension shall be subject to the conditions, mutatis
mutandis, set out at Article 56
(c) Members shall only exempt both public authorities and
officials from liability to appropriate remedial. measures
where actions are taken or intended in good faith.
Article 59: Remedies
Without prejudice to other rights of action open to the right
holder and subject to the right of the defendant to seek review by a
judicial authority, competent authorities shall have the authority to
Order the destruction or disposal. of infringing goods in accordance
with the principles set out in Article 46. In regard to counterfeit
trademark goods, the authorities shall not allow the re-exportation of
the infringing goods in an unaltered state subject them to a different
customs procedure, other than in exceptional circumstances.
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Article 60: De Minimis Imports
Members may exclude from the application of the above provisions
small quantities of goods of a non-commercial nature contained in
travellers personal luggage or sent in small consignments.
SECTION 5: CRIMINAL PROCEDURES
Article 61
Members shall provide for criminal procedures and penalties to be
applied at least in cases of wilful trademark counterfeiting or
copyright piracy on a commercial scale. Remedies available shall
include imprisonment and/or monetary fines sufficient to provide a
deterrent, consistently with the level of penalties applied for crimes
of a corresponding gravity. In appropriate cases, remedies available
shall also include the seizure, forfeiture and destruction of the
infringing goods and of any materials and implements the predominant
use of which has been in the commission of the offence. Members may
provide for criminal procedures and penalties to be applied in other
cases of infringement of intellectual property rights, in particular
where they are committed wilfully and on a commercial scale.
[Annex III follows]
59
ANNEX III
COMMENTS RECEIVED ON THE PROVISIONAL DOCUMENT*
SOUTH AFRICA
On September 6, 1994, the Director General of WIPO received the
following note verbale from the Permanent Mission of the Republic of
South Africa, Geneva:
"The Permanent Mission of the Republic of South Africa
presents its compliments to the Director General of the World
Intellectual Property Organization and has the honour to
forward to the Director General copies of letters written by
the Registrar of Trade Marks and the South African Institute
of Intellectual Property Law which contain South Africa's
initial comments on the draft memorandums. prepared by the
International Bureau on a possible protocol to the Berne
Convention and on a possible instrument for the protection of
the rights of performers and producers of phonograms..."
The letter of the Registrar of Trade Marks annexed to the note
verbale and dated August 26, 1994, only indicates that the comments of
the South African Institute of Intellectual Property Law are
transmitted with it. The said comments, annexed to that letter and
dated August 25, 1994, read as
"The Design & Copyright Committee of this Institute has
considered the draft memorandum prepared by the International
Bureau of WIPO on a possible protocol to the Berne Convention
and the draft memorandum prepared by the International Bureau
of WIPO on a possible instrument for the protection of the
right of performers and producers of phonograms and our brief
comments on these two documents are given below.
"Protocol to the Berne Convention
[The comments relating exclusively to the possible
protocol to the Berne Convention are not reproduced here.]
"Instrument for the Protection of the Rights of Performers
and Producers of Phonograms
"We agree with the proposals set forth in paragraphs
29, 35, 36, 41, 63 and 64.
* The comments are reproduced in the order In which they were
received by the International Bureau.
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"We agree in principle with the proposal set forth in paragraph
65 but have reservations about the practicalities of the
administration of a system of exacting payment on reproduction
equipment or on blank recording material, We likewise support the
proposal contained in paragraphs 67 and 68 and express a similar
reservation regarding the proposals set forth in paragraph.69.
"We agree with the proposals set forth in paragraphs 80 and 92.
"We agree with the proposals made in paragraphs 99 and 100
subject to making the same reservation as is expressed in (previous]
paragraph.
"We agree with the proposals set forth in paragraph 112.
"General
"In general we agree with the proposals and views set forth in
the document.
"We consider that, in the light, of the recent history of South
Africa's relations with WIPO and international bodies in general, our
Government should make a point of furnishing comments on the two
provisional documents to the International Bureau of WIPO by the
deadline date of 1 September 1994. We feel that it is important that
as a country our voice should be heard in WIPO."
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Annex III,, page 3
UNITED STATES OF AMERICA
on September 19, 1994, the Director General of WIPO received the
following letter from Mr. Bruce A. Lehman,, Assistant Secretary of
Commerce and Commissioner of Patents and Trademarks, Washington, D.C.:
"I am sending you the United States comments on the
Provisional Documents for the Meetings of the Committees of
Experts on the Protocol to the Berne Convention and the New
Instrument on the Protection of Performers and Producers of
Phonograms, scheduled for December 5th through the 16th.
"I believe that we have benefited from having
additional time for reflection Over these documents. This
has given us the opportunity to assess the implications of
the TRIPs Agreement and to better understand the implications
of new technological developments for national copyright and
international systems. These comments reflect our thinking
on TRIPs implications and developments in our own studies
here in the United States on@intellectual property and
our National Information Infrastructure.
"The United States Government continues to believe that
the discussions in the previous Meetings of the Committees of
Experts have pointed out the need for careful and deliberate
thought on the part of ail Governments to better understand
where common issues and concerns lie. In this spirit, we
look forward to discussions in December and to working with
other Governments to find ways to provide strong and coherent
copyright and neighboring rights protection at present and in
the coming era of the Global Information Infrastructure."
The following comments were annexed to the letter under the title
"United States views on the Berne Protocol and the New Instrument":
"General observations
"The United States remains committed to making progress
in WIPO toward improving international protection for works
protected by copyright and authors rights and the subject
matter of neighboring rights, as we stated at the April
Extraordinary Session of the Berne Executive Committee. As
we promised at that meeting, we are offering suggestions on
ways in which we believe that progress can be made. We
believe that such progress is essential, especially in view
of the needs to deal with the intellectual property issues
associated with the emerging Global Information
Infrastructure (GII). We believe that the transition into a
worldwide information society demands both a narrowing of our
focus on specific issues in the cases of the Berne Protocol
and the New Instrument, and the expansion to encompass the
digital world in both areas.
"Many countries are studying how their intellectual
property laws relate to emerging digital information systems
and the increasing importance of multimedia works. In our
own studies here in the United States, it is becoming
increasingly clear that the international implications of the
development of our own NII and a GII are extremely complex
and deserve careful evaluation.
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INR/CE/III/2
Annex III, page 4
"In the emerging world of the GII with its digital
distribution systems and multimedia works, distinctions among
the rights of authors, producers and performers that are the
basis for the separation of copyright and neighboring rights
are rapidly becoming irrelevant. We believe that this new
world of information superhighways will mean economic growth,
jobs, and exports for all economies to the benefit of
authors, producers and performers. Governments need to
consider carefully the implications of the inevitable
development of the GII for their national economies and their
copyright systems. We want to ensure that the work in WIPO
is relevant to the rapidly emerging digital world of the GII
in order to set sound policy. The goal should be to select
the essential elements of the present Berne Protocol and New
Instrument texts and work toward reaching agreement on them.
"We believe that the objectives in the December meeting
of the Committees of Experts should be limited to what may be
achievable. As a general matter, we do not believe that it
is necessary to duplicate TRIPs achievements in the Berne
Protocol and New Instrument. we believe that this would be
unnecessary, time consuming and a potentially dangerous
activity. We are seriously concerned that such an. attempt
could result in standards in WIPO that are different from
those adopted in the GATT. Therefore, we prefer no inclusion
of TRIPs standards in the Protocol and New Instrument, but if
they are included they should be unmodified so as to cause no
confusion.
"Matters common to the protocol and the New Instrument
"The first issue common to both the Berne Protocol and
the New Instrument is the incorporation of the TRIPs
enforcement text. Despite our earlier position that any
new WIPO agreements should include enforcement provisions,
this was when TRIPs was not a reality. The adoption of the
TRIPs text has changed the balance of considerations in this
regard. Consequently, the United States proposes that,
should the Committee of Experts decide to retain the
enforcement text, only those changes which are essential to
adapting the text to the Protocol and New Instrument ought to
be included. We also believe that it is important to
continue to look into the possibility of including provisions
on the use of technical security measures and on prohibiting
devices and services that may be used to defeat technical
security measures.
"We believe that the Committees of Experts should
consider the recognition of a digital "transmission" right
for both the Berne Protocol and the New Instrument perhaps as
a separate right, as an aspect of a distribution right, as
part of a right of communication to the public, or an aspect
of the reproduction right, While this is an issue that needs
much further discussion., the United. States believes that
such a right is an important part of the Berne Protocol and
New Instrument which would be aimed at meeting the needs of
the emerging GII.
"Provisions to prohibit decoders and anti-copy
prevention devices and services also should be considered for
inclusion. Such provisions could prohibit the making
available to the public goods or services the primary purpose
of which is to defeat technical security measures. The ease
of infringement and the difficulty of detection and
enforcement will cause copyright owners to look to
technology, as well as the law, for
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protection of their works. However, it is clear that
technology can be used to defeat any protection technology
provides. Consequently, legal protection alone may not be
adequate to provide incentive to authors to create and to
disseminate works to the public, unless the law also provides
some protection for the technological processes and systems
used to prevent unauthorized uses of copyrighted works and
sound recordings.
"The prohibition of devices, products, components and
services that defeat technological methods of preventing
unauthorized use of works in digital form or communicated
through the GII is in the public interest. Consumers of
copyrighted works pay for the acts of infringers through
higher prices for copyrighted works to compensate right
owners for infringement losses. The public will also have
access to more Works and sound recordings if right owners can
more effectively protect their works from infringement.
"Therefore, the United States believes that the
Committees of Experts should consider including in the Berne
Protocol and the New Instrument provisions to prohibit the
importation, manufacture and distribution of devices, as well
as the provision of services, that defeat hardware or
software based anti-copying systems.
"In the future, the rights management information
associated with a work or sound recording--such as the name
of the copyright owner or producer and the terms and
conditions for uses of the work or sound recording--may be
critical to the efficient operation and success of the GII.
The public should be protected from fraud in the creation or
alteration of such information. Therefore, the Committees of
Experts should consider including in the Protocol and the New
Instrument a prohibition of the fraudulent inclusion of such
management information and the fraudulent removal or
alteration of such information.
"The United States continues to believe that national
treatment must be the basis for protection in any
intellectual property agreement. At an absolute minimum,
national treatment must apply to the minimum obligations
established in any agreement in WIPO. The author or rights
holder should be able to realize fully the economic benefits
flowing from the free exercise of his or her rights in any
country party to the Protocol or New Instrument. We continue
to believe that, in respect of any work, this is required by
Article 5 of the Berne Convention. To do otherwise in either
a Berne Protocol or another agreement on copyright protection
would be contrary to Article 20 because it would be a
derogation of rights existing under Berne and not be an
Agreement to "grant to authors more extensive rights than
those granted by the Convention, or contain other provisions
not contrary to this Convention" as provided for under
Article 20.1 To the extent that we have agreed that the
principles of the New Instrument should follow those of the
Berne Convention, to do otherwise in respect of related
rights, would be contrary to the letter and the spirit of the
Convention.
"Berne Protocol issues
[The comments relating exclusively to the possible
protocol to the Berne Convention are not reproduced here.]
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Annex III, page 6
"Now Instrument issues
"The situation in the United States in respect of the
issues to be dealt with in the New Instrument is so uncertain
that it makes meaningful progress impossible for us at this
time. However, because the New Instrument Document is
drafted in "treaty language," we have many concerns with the
specific proposals and the issues raised by them. We are
prepared to discuss these concerns; however, we must state
that such discussion does not imply any agreement with the
substance of the proposals or the content of the proposed New
Instrument as a whole.
"There are issues such as digital fixation, storage and
delivery that will need to be taken into account in the
discussion of the scope and extent of several of the
definitions. There are also questions concerning the scope
of rights and the right owners that might be covered by the
New Instrument which will affect the definitions. To the
extent possible, definitions in the New Instrument should be
identical to those in the Berne Protocol. Otherwise,
differences in phrasing could lead to differences in
interpretation, and jeopardize the "bridging" of the New
Instrument with the Berne Convention and the Protocol. Many
of these issues are critical to the United States and other
countries.
"Definitions
"There are a number of questions that are raised by the
definition that merit further discussion. If the New
Instrument is intended to address rights in phonograms and
the rights directly associated with them the definitions
should be crafted narrowly. The subject matter covered by
the definitions goes beyond what is needed for improving
protection for phonograms. Particularly, inclusion of all
performers, including performers in audiovisual works, may
well create a political situation for the United States that
will make participation in the New Instrument out of the
question.
"The definitions often refer to both fixations of both
sounds and images. We believe that: the exclusion of
fixations of audiovisual works from the definition is
necessary to avoid confusion, since audiovisual fixations of
musical or other performances are entitled to copyright
status, and thus are protected under the Berne Convention.
"The definitions, read as a whole, could imply that
rights would have to be granted in respect of any phonogram
in which sounds are fixed. Since many countries provide such
protection under copyright, the New Instrument should
specifically provide that a Party may satisfy its obligations
by means of copyright.
"The definition of publication as including electronic
retrieval systems, or digital delivery, requires considerable
study in the context of the concerns raised in respect of the
development of the GII. Questions such as what constitutes
publication, delivery, public performance and distribution
all must be considered in this broader context.
"The definition of public lending appears to be
unnecessary, in view of the rejection at the last meeting of
the Committee of Experts of including a public lending right.
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INR/CE/III/2
Annex III, page 7
"Distinctions among rights of communication to the
public, public performance and distribution are becoming
increasingly irrelevant in the face of technological change.
Digital, or more properly non-analog, storage, retrieval and
communication technologies are forcing us to rethink how
rights are defined and allocated in the world of information
superhighways and national information infrastructures.
Exclusive rights of communication to the public by any means
are extremely important in this context. Our Congress is
considering legislation to extend a limited public
communication right to sound recordings in the realm of
digital communication. Consequently, the United States is
not able to take any final. position on these definitions at
this time, and believes that considerable further discussions
on these issues are required.
"As noted earlier, the inclusion of "images" in the
definition of communication to the public is troublesome.
Images are parts of audiovisual works protected under the
Berne Convention, and as such, have no place in the New
Instrument. Audiovisual works are protected under copyright
and enjoy a broad public performance right under the Berne
Convention. The reference to images should be deleted.
"Rights
"As drafted, the New Instrument would give performers
certain moral rights: (a) the right, where practicable, to
have their names indicated on copies and when publicly
performed, and (b) the right to object to distortions of
their performances. Each of these rights raises serious
concerns for the United States.
"Although the draft says that the moral right of
paternity is only a right where practicable, it nowhere
defines what is, or is not, practicable. This could lead to
conflicts over what could be essentially trivial exclusions.
The need for paternity rights in respect of performers in, or
producers of, sound recordings has not been demonstrated.
Matters such as credits can be properly dealt with by
contract provisions, and do not require moral rights.
"Concerning the right of integrity, the United States
has a strong tradition of parody and burlesque. If a song
artist had a right to object to any distortions, he or she
might object to legitimate parodies of his or her song
styling. We might see the Supreme Court declare such moral
rights provision unconstitutional because of its conflict
with free speech.
"The provisions on the rights of performers, including
moral rights, in respect of fixations of their performances
expand the concept of performers rights far beyond that which
is incorporated in the Rome Convention. It is uncertain how
far the United States can go in harmonizing its level of
performer's protection. These issues need further
consideration.
"As noted in the case of works under the Berne
Protocol, and equally, in the case of phonograms under the
New Instrument, digital technology has greatly facilitated
the ease of making and the quality of reproductions. Unlike
analog recordings, digital recordings can be reproduced
without degradation of sound quality. The tenth serially
reproduced copy of a digital recording is indistinguishable
from the original. Equally, the technology has provided new
means to adapt,
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Annex III, page 8
modify and transform phonograms or parts of phonograms. This
highlights the importance of the basic reproduction right,
and also emphasizes the importance of carefully considering
how the adaptation right can apply for phonograms.
"Digital audio technology has also seriously changed
the impact of private copying. As discussed in the items of
general concern, the United States generally supports
technical means to limit unauthorized copying such as the
Serial Copy Management System (SCMS) employed in the United
States and Japan. The United States also supports statutory
royalty payment systems for digital audio equipment and blank
digital media to compensate rights owners for the copying
that will inevitably take place in a digital environment.
"The New Instrument should incorporate express minima
for the important issue of distribution rights. These
provisions should secure the right of first public
distribution on a territorial basis in all of the countries
party to the Instrument. It may also be appropriate for the
Instrument to include provisions regarding distribution of
copies by transmission.
"It is likely that the New Instrument will also need to
provide for the possibility of limited exceptions to the
right of distribution and the right of importation. In that
regard, we believe that the New Instrument could include a
general provision based on Article 9(2) of the Berne
Convention that permits limited exceptions, as long as their
grant does not unreasonably prejudice the interests of the
rights owners in the normal exploitation of the sound
recording.
"Just as in the case of works in the Berne Protocol, an
exclusive right to authorize or prohibit the importation of
sound recordings even after first sale is important.
Intellectual property rights are essentially territorial in
nature. Permitting the rights owner to, determine where and
how to market a, product allows the rights owner to respond
to the needs of domestic markets. Just as book publishers;
enter into contracts that provide for low cost books in
developing countries, so do sound recording producers adjust
pricing to the demands of local markets. Pricing to the
local market helps to discourage piracy and protects domestic
rights owners as well as foreign rights owners. If the
relevant interests abuse this ability to price to the market,
competition laws and policies can be employed in a targeted
fashion to address specific anti-competitive practices. it is
essential that we ensure the ability to limit the
distribution of these copies to the market for which they are
priced and for which licenses are negotiated.
"An exclusive right in communications to the public and
public performances for digital works, if, important;
however, in the United States, legislation is pending in our
Congress and we are unable to take a final position on this
issue.
"As we have noted, we would prefer not to duplicate
TRIPs obligations in the Protocol and New Instrument,, if
explicit rental rights are included, they should be exclusive
rights, without the possibility of a right of remuneration.
However, we could agree to allow countries that, at the time
of the adoption of the New Instrument, recognize an exclusive
right for only one year followed by a right of remuneration
fox, the remainder of the term of protection, to temporarily
continue a regime of remuneration.
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"The Instrument must provide for the possibility of
limited exceptions to rights. In that regard, the New
Instrument should include a general limitation that permits
limited exceptions to the public performance right, as long
as their grant does not unreasonably prejudice the interests
of the rights owner in the normal exploitation of the sound
recording. Such a provision could be based on Article 9(2)
of the Berne Convention.
"Term-of protection
"The New Instrument expands the international
protection from 20 years to 50 years for producers of
phonograms and performers. The United States supports this
proposal and would be willing to consider a term of
protection commensurate with that provided for copyrighted
works.
"Formalities
"The United States believes that no formalities for the
existence, protection, exercise or enjoyment of rights should
be permitted under the New Instrument. There should also be
an explicit prohibition against the requirement of
conditioning rights on the formality of "first fixation."
Some countries have argued that this is not a formality.
This has led, in some instances, to a denial of national
treatment, especially in the distribution of home taping
royalties.
"National-treatment
"With respect to national treatment, the United States
believes that a comprehensive national treatment obligation
is an essential element of the New Instrument. Parties to
the New Instrument must grant national treatment to all
members in respect of the rights provided under the
Instrument and under domestic law, now and in the future, as
well as in respect of the benefits flowing from those rights.
Foreign and domestic rights owners must have the same
possibility of the protection, exploitation and enjoyment of
their rights.
"National treatment is one of the bedrock principles of
the Berne Convention. Many have expressed the view that the
principles and provisions of the Berne Convention should
apply to the maximum extent possible in respect to the New
Instrument. From the U.S. perspective, our copyright law
provides no instances where eligible foreign copyright owners
are treated less favorably than American owners. The United
States believes the same should be true in international
conventions. There are no exceptions to national treatment
proposed in the text, and no exceptions should be included."
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EUROPEAN COMMISSION
On September 22, 1994, the Director General of WIPO received the
following letter from J. F. Mogg, Director-General, Directorate
General XV Internal Market and Financial Services, European
Commission, Brussels:
"At the Extraordinary Session of the Assembly of the
Berne Union on 28 and 29 April, 1994, it was decided to
invite the Governments of the countries members of the Berne
Union and the European Commission to submit comments on the
provisional draft documentation of 29 April, 1994, issued by
the International Bureau in preparation for the next meetings
of the Committees of Experts on a possible Protocol to the
Berne Convention and possible New instrument for the
Protection of the Rights, of Performers and Producers of
Phonograms. This document sets out the response of the
European Commission and the Member States of the European
Union to that invitation.
"We believe strongly that the work of the two
Committees should continue and that the necessary balance in
the two instruments between copyright and neighbouring rights
should be kept in mind. The cultural and creative aspects of
intellectual property rights can best be regulated by bodies
with a specialised interest in the subject matter such as
WIPO and within a context which takes account of existing
Conventions dealing with authors' rights and neighbouring
rights.
"We attach particular importance to complementing and
improving upon the minimum standards of protection set out in
international agreements. This is in accordance with our
policy of obtaining a high level of protection for authors
and neighbouring rights holders. Although existing
agreements provide a valuable framework, there are a number
of areas where further clarifications and improvements to the
protection of intellectual property rights could be made.
For this reason, we believe work should continue in all areas
covered by the current documentation even if, after mature
reflection, it proves inappropriate to retain every topic in
the final instruments.
"It is also clear that the advent of a more frequent
use of digital technology for the fixation, exploitation and
dissemination of works requires that the process of
evaluating and updating existing Conventions be continued
without Further delay. We therefore consider that it is
appropriate for these issues to be discussed in WIPO and that
the current documentation provides art adequate basis on
which they can be further examined in December 1994.
[The comments relating exclusively to the possible
protocol to the Berne Convention are not. reproduced here.]
"As to the appropriateness of the new draft
documentation relating to the New Instrument, we continue to
request the incorporation of treaty language dealing
explicitly with the rights of performers in the audiovisual
sector.
"Without prejudice to the above mentioned
considerations, the European Commission and the Member States
of the European Union reserve their position on the scope and
substance of the issues under discussion in connection with
both the Berne Protocol and the New Instrument."
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LESOTHO
On September 23, 1994, the Director General of WIPO received the
following letter from the Ministry of Tourism, Sports and culture of
the Government of Lesotho, Maseru:
"Lesotho has studied both documents and after careful
consideration is of opinion that both the possible instrument
for the protection of performers and producers of phonograms
and a possible protocol to the Berne Convention are
inevitable and timeous. Lesotho further agrees with the
contents of both provisional documents and has nothing to
add,"
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ARGENTINA
On September 26, 1994, the International Bureau received the
following note verbale from the Permanent Mission of the Argentine
Republic in Geneva:
"The Permanent Mission of the Argentine Republic to the
International Organizations in Geneva presents its
compliments to the International Bureau of the World
Intellectual Property Organization (WIPO) and, with reference
to the decision adopted by the Assembly of the Berne Union at
its fourth extraordinary session, has the honor to convey to
the said Bureau the comments of the Argentine Government on
the provisional documents on 'Questions concerning a possible
protocol to the Berne Convention' and 'Questions concerning a
possible instrument for the protection of the rights of
performers and producers of phonograms.
"The Permanent Mission of the Argentine Republic to the
International Organizations in Geneva renews to the
International Bureau of the World Intellectual Property
Organization (WIPO) the assurances of its highest
consideration."
The comments of the Directorate General of Copyright, Minis-try
of Justice, dated September 23, 1994, which accompanied the note
verbale, read as follows.
"I have the honor to write to you in response to the
request that we comment in writing on provisional documents
relating to 'Questions concerning a possible protocol to the
Berne Convention' and 'Questions concerning a possible
instrument for the protection of the rights of performers and
producers of phonograms.'
"The Argentine Government, through its delegation, has
expressed its constant support for the work undertaken by
WIPO, and the comments given below are intended to contribute
to the making of both instruments into international
treaties.
"(I) Matters Concerning a Possible Protocol to the Berne
Convention
[The comments relating exclusively to the possible
protocol to the Berne Convention are not reproduced here.)
"II. Question concerning a possible instrument for the
protection of the rights of performers and producers of
phonograms
"Scope of the new instrument. We confirm our position,
which was that the scope of the new instrument should be
limited to the rights of performers in audio recordings.
"The Argentine Government agrees with the urgent need
to bring up to date and otherwise modernize the protection of
performers, but, as far as the now instrument is concerned,
that updating should not go beyond its original objective and
its raison d'etre, which was to maintain the parallels
between the updating and modernization of the rights of
producers of phonograms and that of the rights of those who,
like performers, are inseparably tied up with the sound
recording of musical works.
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INR/CE/III/2
Annex III, page 13
"If one were to introduce the subject of performers in relation
to audiovisual recordings, this would be bound to involve, reconciling
their rights with those of the authors of such works, which is not
within the terms of reference of the new instrument.
"Definitions. In conformity with the stance adopted by us in the
earlier discussions, we agree that it would be appropriate to broaden
the definition of phonograms to include fixations of digital
representations of sounds.
"By the same token, it is not only justified but essential, for
provisions projected towards the technology of the future, that the
definition of publication be broadened to include the transmission of
phonograms "across electronic retrieval systems (digital media) that,
enable the persons connected to such systems to listen to a given
phonogram at any moment, at their own discretion."
"In our preliminary draft, Article 103 is intended to settle the
rights of authors and producers in relation to such forms of digital
communication.
"Moral rights of performers. The establishment of the moral
rights of performers in an international instrument is a widely
perceived necessity. We agree with the proposal set forth in
paragraphs 35 and 36.
"Economic rights of performers
(a)
"In their live performances. Having examined the proposal in
paragraph 41, we find it adequate and consistent with the
amendment to Article 58 of Law 11723 as proposed in our
preliminary draft.
(b)
"In performances fixed on phonograms. We have no objection
to the recognition of rights of reproduction (63(a)),
distribution (63(b)) and importation (63(c)); nevertheless we
would point out that there should be a provision in the
international instrument to the effect that those rights are
seldom or never exercised in practice by the performers on
their own initiative, neither ate they a feature of the
collective management of their rights, but it is rather the
producers of phonograms who are responsible for the defense
of their phonographic repertoires--which contain
performances--against piracy, unauthorized rental or lending
and parallel importation.
"With regard to the right of adaptation (63(d)), when it came
under discussion, the Argentine delegation was among those advocating
a change of terminology with a view to distinguishing that right of
performers from the right of the same name belonging to authors. Even
the WIPO Glossary supported this view, defining it thus; "generally
understood as the modification of a pre-existing work from one genre
of work to another." This definition does not a ply to modification by
digital manipulation of performances. The definition of-the
word adaptation that applies to the concept of performers' rights is
the one that speaks of altering the work (performance) within the same
genre to make it suitable for different conditions of exploitation";
this is the definition of the term adaptation that comes closest to
the conception of
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INR/CE/III/2
Annex III, page 14
the right that is to be protected, which is why we repeat the
suggestion that the right should be called a right of modification,
which moreover is the one used in Article 91 (a) of our preliminary
draft. With regard to the rights of communication to the public and
broadcasting (63(e), (f) and (g)), Argentina has opted for retention
of the equitable remuneration solution written into Article 12 of the
Rome Convention, but with the exception of digital communication,
which enables those connected to electronic retrieval systems to
select phonograms at their discretion, at any time, in which case
there is justification for exclusive rights.
"With regard to paragraph 64(a) we repeat that the concept of
exhaustion rights on first sale" is foreign to our legal system, and
we consider It undesirable.
"With regard to the right of rental (64(c)), we are strongly in
favor of the exclusive right to authorize or prohibit, and would
mention once again that the exercise of the right generally falls to
the producer of phonograms.
"As for paragraph 65(a), (b) and (c), we have given our support
to equitable remuneration for private copying of phonograms for the
benefit of authors, performers and producers, and we support the
proposed solutions.
"Rights of producers of phonograms. All the rights advocated for
the producers of phonograms in paragraph 67(a), (b), (c) and (d) are
recognized in Article 91 of the preliminary draft, with the right of
adaptation in paragraph 61(d) called "modification," which is why we
support its inclusion.
"With regard to the rental of phonograms, we have opted for the
right to authorize or prohibit and for not including the concept of
exhaustion in our legislative system. With regard to the rights of
communication to the public and broadcasting, we appreciate the wisdom
of limiting them to equitable remuneration, but conceding exclusive
rights when the communication takes place by digital means in the form
of transmission, at the request of the user, to a specified place at a
set time. We reserve our position, pending closer study, on the
possibility of exclusive rights in other forms of digital
communication.
"The approach mentioned was adopted in Article 103 of the
preliminary draft under the heading of "rights in relation to digital
distribution," on the understanding that this form of communication
was equivalent to an act of distribution.
"With regard to the proposal in paragraph 69(a), (b) and (c), we
confirm our support. This right belonging to authors, performers and
producers is recognized in Articles 104 to 111 of our preliminary
draft.
"Exception to economic rights. Without prejudice to the
adjournment to a later session of the Committee of the matter of what
specific limitations would be peculiar to neighboring rights, the
principle according to which "all the limitations laid down in this
law with respect to copyright shall likewise be applicable to the
rights of performers and producers of phonograms" could already be
written into the now instrument.
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INR/CE/III/2
Annex III, page 15
"Term of Protection of economic rights. The term of 50 years
from the end of the year in which the fixation of the performance was
made seems acceptable as a minimum level of protection.
"Formalities. The proposal is endorsed under which no country
May demand of the owners of rights that they comply with any formality
as a condition of protection. It is however suggested that it might
be appropriate for the new instrument to reproduce the provision in
Article 11 of the Rome Convention and Article 5 of the Phonograms
Convention, in view of the fact that the use of the circled letter P
symbol has proved very useful in practice for the protection in our
country of phonograms published abroad.
"Enforcement of rights. To ensure the effective protection of
the rights recognized, we would consider the inclusion of appropriate
judicial measures such as those proposed in the TRIPS Agreement
extremely useful. Our preliminary draft contains a chapter on
criminal sanctions, another on preventive measures, another on civil
proceedings and also specific guidelines on compensation for damages
due to unlawful acts, all of which are somewhat above the proposed
minimum levels. In particular we should mention, as indeed we already
have, our Article 76(iii) which includes criminal provisions to punish
the abuse of technical devices.
"Criteria of eligibility for protection. We agree with the
eligibility criteria proposed in paragraph 112."
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INR/CE/III/2
Annex III, page 16
JAPAN
On September 26, 1994, the International Bureau received the
following comments from the Delegation of Japan attending the meetings
of the Governing Bodies of WIPO and the Unions Administered by WIPO:
"1. The Committees of Experts on "A Possible Protocol to the
Berne Convention" and "A Possible Instrument for the
Protection of the Rights of Performers and Producers of
Phonograms" have a very important task of' establishing the
standards of international protection of copyright and
neighboring rights in the future. The Government of Japan
supports the continuation of the work of the two Committees
and intends to participate in this exercise in an active
manner.
"2. The Government of Japan believes that the following
points should be taken into account when the two Committees
examine the Provisional Documents before us.
"(1) In order to promote the protection of copyright;
and neighboring rights while keeping the necessary balance
between them, the work of the two Committees should be
continued in parallel and paying attention to close
relationship each other.
"(2) In the work of the two Committees, the result of
the TRIPS negotiation in GATT Uruguay Round should be
respected and adopted as a starting point of the exercise.
Furthermore, taking advantage of the expertise of WIPO in the
field of intellectual property rights, the Committees should
aim at further harmonization to the extent possible.
"(3) Studies on copyright issues relating to the
development of digital technology and network are under way
in a number of countries including Japan. In order to ensure
appropriate and internationally harmonized measures in this
regard, these issues should be examined in the future work of
the two Committees without delay, having due regard to the
appropriate balance of interests between right holders and
users of copyright works.
"3. The Government of Japan accepts the Provisional Documents
as they stand as bases of the meetings of the Committees of
Experts in December, although it reserves its positions on
each specific items in the Documents until the discussions in
the above meetings."
[End of Annex III and of document]
75
INR/CE/III/ 2 Corr.
WIPO ORIGINAL : English only
DATE: October 11, 1994
WORLD INTELLECTUAL PROPERTY ORGANIZATION
GENEVA
COMMITTEE OF EXPERTS
ON A POSSIBLE INSTRUMENT FOR THE PROTECTION OF
THE RIGHTS OF PERFORMERS AND PRODUCERS OF PHONOGRAMS
Third Session
Geneva, December 12 to 16, 1994
CORRIGENDUM TO DOCUMENT INR/CE/III/2
prepared by the International Bureau of WIPO
In Annex III, the following footnote should be added at the
bottom of page 5:
"1 Article 20 states: The Governments of the countries of the
Union reserve the right to enter into special agreements
among themselves, in so far as such agreements grant to
authors more extensive rights than those granted by the
Convention, or contain other provisions not contrary to this
Convention. The provisions of existing agreements which
satisfy these conditions shall remain applicable."
[End of document]
76
INR/CE/III/3
WIPO ORIGINAL : English
DATE: December 16, 1994
WORLD INTELLECTUAL PROPERTY ORGANIZATION
GENEVA
COMMITTEE OF EXPERTS
ON A POSSIBLE INSTRUMENT FOR THE PROTECTION OF
THE RIGHTS OF PERFORMERS AND PRODUCERS OF PHONOGRAMS
Third Session
Geneva, December 12 to 16, 1994
REPORT
adopted by the Committee
I. Introduction
1. In pursuance of the decision taken by the Governing Bodies of the
World Intellectual Property Organization (WIPO) and the Unions
administered by WIPO at the twenty-fourth series of meetings in
Geneva, in September-October 1993 (see document AB/XXIV/2, item 03(3),
page 21, and document AB/XXIV/18, paragraphs 224-231 and 283-284) and
the decision taken by the Assembly of the Berne Union at its fifteenth
session (fourth extraordinary) held on April 28 and 29, 1994 (see
document B/A/XV/1, paragraph 25), upon the invitation of the Director
General of WIPO, the third session of the Committee of Experts on a
Possible Instrument for the Protection of the Rights of Performers and
Producers of Phonograms (hereinafter referred to as "the Committee")
met at the headquarters of WIPO, in, Geneva, from December 12 to 16,
1994.
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INR/CE/III/3
page 2
2. Experts from the following 60 States and one intergovernmental
organization, members of the Committee, attended the meeting: Algeria,
Argentina, Armenia, Australia, Austria, Belarus, Belgium, Brazil,
Canada, Chile, China, Colombia, Costa Rica, Cote d'Ivoire, Czech
Republic, Denmark, Egypt, Finland, France, Germany, Ghana, Greece,
Hungary, India, Ireland, Israel, Italy, Japan, Kenya, Lesotho,
Liberia, Luxembourg, Malta, Mexico, Morocco, Nigeria, Norway,
Pakistan, Paraguay, Peru, Philippines, Portugal, Republic of Korea,
Russian Federation, Senegal, Slovenia, South Africa, Spain, Sweden,
Switzerland, Thailand, The former Yugoslav Republic of Macedonia,
Togo, Trinidad and Tobago, Turkey, United Kingdom, United States of
America, Uruguay, Venezuela, Zambia and the European Commission (EC).
3. Representatives of the following five intergovernmental
organizations participated in observer capacity: International Labour
Office (ILO), United Nations Educational, Scientific and Cultural
Organization (UNESCO), League of Arab States (LAS), Permanent
Delegation of the Organization of African Unity (OAU), Arab States
Broadcasting Union (ASBU).
4. Observers from the following 44 non-governmental
organizations participated in the meeting: Agence pour la protection
des programmes (APP), American Federation of Musicians of the United
States and Canada (AM), American Federation of Television and Radio
Artists (AFTRA), Asia-Pacific Broadcasting Union (ABU), Asociacion
Argentina de Interpretes (AADI), Associacion Nacional de Interpretes,
S. de I. (ANDI), Association of European Performers Organisations
(AEPO), Association of' European Radios (AER), Australian Copyright
Council (ACC), Caribbean Broadcasting Union (CBU), Conseil francophone
de la chanson (CFC), Coordination of European Independent Producers
(CEPI), Copyright and Competition Law (MPI), Electronic! Industries
Association (EIA), European Broadcasting Union (EBU), European Council
of American Chambers of Commerce (ECACC), European Tape Industry
Council (ETIC), Groupement europeen representant les organismes de
gestion collective des droits des artistes-interpretes ou executants
(ARTIS GEIE), lbero-Latin-American Federation of Performers (FILAIE),
Information Industry Association (IIA), Information Technology
Industry Council (ITI formerly CBEMA), Intellectual Property Owners
(IPO), International Alliance of Orchestra Associations (IAOA),
International Association for the Advancement Of Teaching and Research
in Intellectual Property (ATRIP), International Association for the
Protection of Industrial Property (AIPPI), International Association
of Broadcasting (IAB), International Bureau of Societies Administering
the Rights of Mechanical Recording and Reproduction (BIEM),
International Chamber of Commerce (ICC), International Confederation
of Music Publishers (ICMP), International Confederation of Societies
of Authors and Composers (CISAC), International Council on Archives
(ICA), International Federation of Actors (FIA), International
Federation of Film Producers Associations (FIAPF), International
Federation of Musicians (FIM), International Federation of
Reproduction Rights Organizations (IFFRO), International Federation of
the Phonographic industry (IFPI), International Literary and Artistic
Association (ALAI), International Publishers Association (IPA),
International Secretariat for Arts, Mass Media and Entertainment Trade
Unions-International Federation of Audiovisual Workers (ISETU/FISTAV),
International Video Federation (IVF), Max-Planck-Institute for Foreign
and International Patent, National Association of Broadcasters (NAB),
National Music Publishers' Association Inc. (NMPA), North American
National Broadcasters Association (NANBA), Performing Arts Employers
Associations League Europe (PEARLE).
5. The list of participants is attached to this report.
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INR/CE/III/3
page 3
II. Opening of the session by the Director General
6. The Director General of WIPO welcomed the participants and opened
the meeting.
III. Election of a Chairman and two Vice-Chairmen
7. Mr. Jukka Liedes (Finland) was unanimously elected Chairman and
Mrs. Hilda Retondo (Argentina) and Mr. Moses Ekpo (Nigeria) were
unanimously elected Vice-Chairmen of the Committee.
IV. Examination of questions concerning a possible instrument
for the protection of the rights of performers and producers of
phonograms
8. Discussions were based on the memorandum prepared by the
International Bureau of WIPO entitled "Questions Concerning a Possible
instrument for the Protection of the Rights of Performers and
Producers of Phonograms" (document INR/CE/III/2; hereinafter referred
to as "the memorandum"). The Secretariat noted the interventions made
and recorded them on tape. This report summarizes the discussions
without reflecting all the observations made.
General discussion
9. The Chairman opened the discussions by noting that, since the
previous session of the Committee, the TRIPS Agreement had been
concluded in the GATT, and that the provisions of that Agreement
should be taken into account in the work of the Committee. He pointed
out that the Rome Convention was more than thirty years old, that it
had never been revised, and that many of its provisions were outdated
and in need of modernization. He noted that many of the questions to
be considered by the Committee had been considered by the Committee of
Experts on a Possible Protocol to the Berne Convention, which had met
the previous week, since the said questions related both to the rights
of authors and other owners of copyright under the protocol, and to
the rights of performers and producers of phonograms under the new
instrument. He stated that only an abbreviated general debate seemed
to be necessary, since most delegations had expressed their views
during previous sessions of the Committee, and thus limited the
general debate to government delegations and observers from
intergovernmental organizations wishing to provide information
concerning important changes in policy or new priorities, or to
provide guidance concerning the procedure for the work of the
Committee in the present session. He said that the observers from
international nongovernmental organizations could make their views
known in respect of specific topics of discussion during the meeting.
Finally, he referred to Annex I to the memorandum of the international
Bureau, which contains a letter from the European Commission to the
Director General of WIPO dated February 22, 1994, and Annex III, which
contains comments on the memorandum sent by governments and by the
European Commission in response to an invitation for comments which
was sent to the Governments of the countries of the Berne Union and to
the European Commission pursuant to decisions of the Assembly of the
Berne Union at its fifteenth session (fourth extraordinary), held on
April 28 and 29, 1994.
10. The Delegation of the European Commission referred to its letter
contained in Annex I of the memorandum, which stated, inter alia, the
position of the European Union in respect of the coverage of the new
instrument, that the rights of performers in respect of all
performances and fixations thereof,
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INR/CE/III/3
page 4
including those in respect of audiovisual fixations, should be
included. It was noted that paragraph 9 of the memorandum of the
International Bureau recorded the majority view of the Committee that
nothing in the terms of reference precluded a discussion of the
question of possible inclusion of provisions on the rights of
performers in audiovisual fixations and the statement of the Director
General that the International Bureau would prepare a document on
audiovisual fixations in due time. Reference was also made to the
draft provisions on these rights which were annexed to the letter, and
stressed that the provisions were intended to facilitate discussion of
the coverage of the new instrument, and were without prejudice to the
position of the European Union on the substantive rights which would
be indicated during the further discussion at this session of the
Committee. The Delegation referred to the further letter contained in
Annex III to the memorandum including, in particular, the reference to
the need to maintain a balance between the development of the protocol
to the Berne Convention and the new instrument, and stressed the
importance of complementing and improving international minimum
standards, thereby supplementing what had been achieved in the TRIPS
Agreement, in order to guarantee a high level of protection for
authors and beneficiaries of neighboring rights. The Delegation also
recognized the importance of ensuring appropriate provisions for, the
protection and exploitation of rights in the context of new
technologies, which gave rise to the need for reexamination and
possible updating of existing conventions.
11. The Delegation of South Africa noted that it was participating in
the work of the Committee for the first time, and that it attached
great importance to protection of the rights of performers and
producers of phonograms. It noted that its country was in the process
of adhering to the Rome Convention, and referred to the protection of
performers in its country under the Performers' Protection Act 1967,
and to the protection of producers of phonograms under its copyright
legislation. The Delegation noted that the Rome Convention, the TRIPS
Agreement, and national laws afforded imperfect protection for the
rights of performers and producers of phonograms, and that the absence
of a modern international instrument on the protection of neighboring
rights, and the scarcity of up-to-date provisions in the laws of
developed countries, had led its Government to abandon plans to enact
new legislation the previous year for lack of authoritative guidance.
The Delegation urged the governments of developed countries to update
their national laws on the protection of performers and producers of
phonograms as an example for developing countries.
12. The Delegation of Chile expressed the view that the new
instrument should incorporate the relevant provisions of the TRIPS
Agreement, and that any modifications of such provisions in the new
instrument should be kept to a minimum in order to avoid the emergence
of possibly conflicting international norms. The Delegation in
general agreed with the Definitions proposed in paragraph 29, but
stated that audiovisual fixations should be excluded in the new
instrument, since it was already covered by the Berne Convention. It
stated that the definitions in items (j) and (k) of paragraph 29 of
the memorandum, which referred, respectively, to "communication to the
public" and "public performance", should be narrowed. The Delegation
supported the inclusion of moral rights for performers in the
instrument. In respect of the proposed economic rights of performers
and producers of phonograms the Delegation supported the propositions
set forth in paragraphs 63 to 66 and 67 to 70 of the memorandum, with
the exception of items e), f) and g), because in this respect the
Delegation of Chile believes that Article 12 of the Rome Convention
offered a more-appropriate solution. The Delegation stated that the
questions of communication to the public by digital means should be
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INR/CE/III/3
page 5
subject to detailed study before inclusion of provisions on the
subject in the new instrument. It supported the proposal for 50-year
duration of protection for the rights of performers and producers of
phonograms, which was consistent with its own national legislation,
and supported maintenance of the symbol "P" in a circle and the year
of first publication which appear on copies of phonograms, in keeping
with the Rome and Phonograms Conventions. On the question of
enforcement of rights, the Delegation supported the inclusion of
provisions on abuse of technical devices, And urged that the
enforcement provisions of the new instrument be consistent with
Articles 41 to 61 of the TRIPS Agreement.
13. The Delegation of Sweden stated that it supported the development
of a new and improved international legal regime for the protection of
beneficiaries of neighboring rights, the need for which had been
demonstrated already during the debates of the Committee of Experts on
the possible protocol to the Berne Convention in respect of the impact
of new technologies on the rights of authors and owners of copyright.
It also stressed the need to maintain a balance in the international
systems of protection of the rights of neighboring rights holders and
those of authors. Finally, the Delegation associated itself with the
views of the European Commission concerning the possible scope of
coverage of the new instrument.
14. The Delegation of India noted that its copyright law protected
the rights of producers of phonograms as well as audiovisual
fixations, and that the rights of performers were included in a recent
amendment to the law. Under that amendment, the Delegation Added,
performers included actors, singers, musicians, dancers, acrobats,
jugglers, conjurers, snake charmers, persons delivering lectures or
any other persons who create a performance, and the protection
extended to the making of phonograms, audiovisual fixations,
broadcasting and, communication to the public. It noted that the
records of the previous sessions of the Committee, and the assistance
of WIPO, had been useful in preparing the amendment legislation.
Concerning coverage of the new instrument, the Delegation supported
inclusion of the rights of performers in respect of audiovisual
fixations, so that it would-not become necessary at a later time to
consider such rights separately. It took the view that the rights of
performers and producers of phonograms should be set forth separately
in the instrument, to avoid overlap and possible clashes of interests,
and noted that, under its system, the rights of producers of
phonograms prevail over the rights of performers once the performers
have authorized the inclusion of their performance in a phonogram;
thus, the Delegation observed that the question of whether both
performers and producers Of phonograms should be provided with
exclusive rights of distribution should be thoroughly studied.
Finally, it noted that the proposed definition of phonogram" in
paragraph 29(b) of the memorandum was not consistent with its law,
under which, once there is a synchronization of the audio and visual
elements of a film, the producer of a film holds rights over the,
audio elements, not the producer of any phonogram which was the source
of the audio elements.
15. The Delegation of Togo noted that, although its country was not
party to the Rome Convention, it supported a high level of protection
for the rights of performers and producers of phonograms. It referred
to recent legislation in its country which protects, inter alia,
performers of folklore, and stated that the ease of copying and the
increase in piracy made possible by new technologies required the
improvement of the international system of protection for neighboring
rights. The Delegation took the view that the definition of
"performers" in paragraph 29(a) of the memorandum should include
performers of folklore.
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16. The Delegation of Slovenia announced the transfer, as of December
3, 1994, of the jurisdiction for copyright and neighboring rights
matters in its country from the Ministry of Culture to the existing
Industrial Property Protection Office which, consequently, became the
Slovenian Intellectual Property Office. It supported the development
of modern national legislation for the protection of performers and
producers of phonograms, and referred to the drafting of a modern law
on copyright and neighboring rights in its country, which would
include most elements of the possible protocol to the Berne Convention
and the new instrument. The Delegation also noted that accession to
the international conventions of which its country was not yet. a
member was under active consideration.
17. The Delegation of China noted that its country had acceded to the
Phonograms Convention in April 1994, and that accession to the Rome
Convention was under consideration. It agreed with the Delegation of
the European. Commission that the new instrument should cover the
rights of performers in respect of audiovisual fixations, and stated
that the rights of broadcasting organizations should also be included.
The Delegation also supported the inclusion of provisions on the
activities of collective administration organizations, particularly in
respect of administration of the rights of performers.
18. The Delegation of Australia noted that, since the last meeting of
the Committee, the Copyright Convergence Group (CCG) of its country
had issued a report entitled "Highways to Change," in which the CCG
recommended that the existing rights of owners of copyright in works
and phonograms in respect of broadcasting and cable transmission be
subsumed in a single right of transmission to the public. The
Delegation explained that, insofar as the new right would encompass
broadcasting, it was intended to extend beyond over-the-air
transmissions to wire transmissions by persons licensed to do so under
recently revised broadcasting legislation in its country. It noted
that, as its Government had committed itself to adopting the CCG's
recommendations, it now favored a right of transmission to the public
on behalf of producers of phonograms. The Delegation noted that the
original proposals of the International Bureau called for a single
right of communication to the public including broadcasting, but that
the Committee had preferred to retain the distinction between
over-the-air broadcasting and other forms of communication to the
public. It proposed that the Committee reexamine that position, and,
in the alternative, expressed its support for the proposed definition
of "Communication to the public" to provide producers of phonograms a
right over transmissions that would complement the broadcasting right.
19. The Delegation of the United States of America referred to its
statement, made during the meeting the previous week of the Committee
of Experts on the possible protocol to the Berne Convention,
concerning the development of a Global Information Infrastructure
(GII). It noted that the world is moving towards an economy
increasingly dependent on intellectual property, and that digital
technology had created new means for creating, storing, performing and
disseminating works and phonograms. It stated that the convergence of
information, communications and computer technology was creating a
system that would enable the performance and/or delivery of copies of
works and phonograms across national borders on an instantaneous
basis; such capability was present in a limited way on the Internet,
but the establishment of the GII would make high-capacity transmission
a commercial reality. The Delegation stated that strong legal and
technological protection for the creative content that would be made
available on the GII would be essential. Although the TRIPS Agreement
had achieved significant levels of improvement and
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page 7
harmonization of international norms in the field of intellectual
property, it said, the Agreement did not cover all of the issues
relevant to the GII. The Delegation quoted remarks made in a recent
speech by Mr. Ron Brown, the Secretary of Commerce in its country,
that "a successful GII cannot be built by governments. Innovators and
imaginative entrepreneurs must do the heavy lifting. We recognize
that the ability to exploit the full potential of the information
superhighway depends on our ability to effectively protect the rights
of copyright owners whose works will flow on it." The Delegation
stated that the task of the Committee was to increase understanding of
issues relevant to the GII and to work towards the development of
internationally accepted norms. It took the view that it would be
premature to make a decision in respect of the inclusion of the rights
of performers in audiovisual fixations, at a time when the impact of
digital dissemination was not fully understood. In respect of the
procedure for the Committee's work, the Delegation stated that
attention should be focused on the proposals in respect of the
economic rights of performers and producers of phonograms, noting that
in its country the rights of performers were usually fixed in the
terms of contracts, and on the provisions for enforcement of rights,
focusing on issues related to digital technology. The Delegation then
described recent changes in its domestic law in respect of the
protection of phonograms, which had boon made as part of
implementation of the TRIPS Agreement. The first change was the
enactment of federal anti-bootlegging legislation, to establish
uniform national standards and to provide a basis for border
enforcement to stop importation of bootlegged audio and video
recordings of musical performances, with both civil remedies and
criminal penalties being provided. The second change made by the
legislation was to provide for automatic restoration, on the date when
the TRIPS Agreement would take effect for the United States, of
copyright in all works and phonograms of member States of the Berne
Convention and the new World Trade Organization, which were not
protected in the United States due to failure to comply with one or
more of the formalities required under prior U.S. copyright law.
There were special provisions concerning the use of affected works by,
and liability for copyright infringement of, so-called "reliance
parties," persons who commenced exploitation of works prior to the
restoration of copyright, persons who acquired copies of such works,
successors or assignees of other reliance parties, persons who
acquired significant assets of predecessor reliance parties, and
persons who created derivative works based on a work prior to
restoration copyright in it. Restored copyrights would vest in the
owner of eights as determined by the country of origin of the work or
phonogram, and transfers of both exclusive and non-exclusive rights
would be given effect under U.S. law according to their terms.
Finally, the Delegation referred to proposed legislation to provide a
right of public performance in digital transmissions, including
digital broadcasts of phonograms. It noted that the legislation had
not been passed in the Congress that had recently adjourned, but
expressed the view that it would be reintroduced in the next Congress,
since the Green Paper on the intellectual property aspects of the
National Information Infrastructure (NII) had recognized the
importance of addressing this issue in the context of the NII.
20. The Delegation of Colombia noted that its Government, as a member
of the Cartagena Agreement establishing the Andean Pact, had recently
approved Decision 351, which established the protection of performers
and producers of phonograms along the lines of the TRIPS Agreement.
It noted that Decision 351 represented the first formal consideration
of copyright questions in the life of the Cartagena Agreement. The
Delegation also noted that Decision 351 contains provisions in respect
of the protection of performers and producers of phonograms along the
lines of the relevant provisions of the TRIPS Agreement, in
particular, that a right of distribution is provided to
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producers of phonograms under the Decision. It stated that the
decisions of the Committee would provide useful guidance to the
legislative bodies of its country in respect of the rights of
performers and producers of phonograms.
21. The Delegation of Egypt stated that now international norms were
needed to establish effective protection for the rights of performers
and producers of phonograms, and approved of the fact that, in order
to take into account the impact of new technologies, the memorandum of
the International Bureau contained proposals that went beyond the
minimum standards contained in the Rome Convention. It supported the
views of the Delegation of the European Commission that the scope of
the new instrument should include the rights of performers in
audiovisual fixations. In respect of the work of the Committee, the
Delegation stated that each item should be discussed separately,
beginning with the proposed definitions.
22. The Delegation of Lesotho stated that it attached great
importance to the protection of intellectual property, and noted that
its 1989 copyright legislation, which also covered neighboring rights
and expressions of folklore, was consistent with both the Berne and
Rome Conventions. It noted that new technology made possible the
manipulation of protected works, and stressed the need for ongoing
revision of the intellectual property conventions. The Delegation
referred to the difficulty likely to be encountered in developing a
new instrument that would cover the interests of countries with
different legal systems, and supported inclusion of the protection of
performers of folklore and the absence of formalities as preconditions
for protection.
23. The Delegation of Canada referred to draft legislation being
considered by its parliament. The legislation would protect
performers against unauthorized audio recordings of their live
performances and against unauthorized radio or television broadcasts
or communications to the public of "heir live performances. The
legislation would provide retroactive protection for a period of 50
years, subject to some limitations. Both civil remedies and criminal
penalties would be provided, and importation of bootleg Phonograms
would be prohibited.
24. The Delegation of Argentina referred to its written comments
submitted in response to the invitation mentioned in paragraph 10,
above, and included in Annex III to the memorandum of the
International Bureau, which demonstrated its support for continuation
of the work towards improved protection fox, the rights of performers
and producers of phonograms. It shared the preference of the
Delegation of the United States of America for examination of the
proposals in respect of economic rights as a matter of first priority,
which would make it easier to reach consensus on the proposed
definitions. In respect of economic rights, the Delegation suggested
that the right of adaptation as applied to performers should be
referred to as the right of "modification," to make clear that it is
distinct from the right of adaptation of authors and owners of
copyright. It supported the absence of formalities as a condition of
protection of phonograms, but took the view that the symbol "P" in a
circle, as provided for in the Rome and Phonograms Conventions, should
be maintained, since it had been of great utility in judicial
proceedings concerning the protection of foreign phonograms in its
country. In respect of digital communication, the Delegation said
that a compromise solution had been foreseen in its country under
which only digital communications made upon the demand of the user
would be covered. Finally, it stated that the question of possible
inclusion of the rights of performers in respect of audiovisual
fixations should be studied separately.
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25. The Delegation of Brazil expressed its support for this exercise
as well as for the development of new international norms for
protection of the rights of performers and producers of phonograms.
It stressed the need for improved definitions to take into account the
impact of new technologies in the field of neighboring rights. It
noted that many of the subjects for discussion by the Committee were
complex, which would require careful consideration at the national
level, mainly because Brazil is making significant improvements on its
internal legislation on the protection of intellectual property
rights.
26. An observer from the Arab States Broadcasting Union (ASBU) stated
that his organization attached great importance to improvements in the
protection of copyright and neighboring rights. He referred to the
numerous recent studies, research activities and seminars which had
teen dedicated to the increased awareness of copyright in Arab
countries, and cited the 1981 Arab Convention on Copyright as evidence
of the importance attached to intellectual. property in the Arab
world. The observer noted that the new technologies ,increased the
means of distribution of television programs, but also increased the
threat of piracy. He referred to changes in the financing of
television production engendered by deregulation of state control over
broadcasting which had taken place in numerous countries, and stressed
the need for a balanced relationship between developed and developing
countries in ensuring the fluid circulation of television programming.
Finally, the observer called for cooperation with WIPO in studying the
impact of digital technology on television and radio broadcasting
activities.
27. An observer from the United Nations Educational, Scientific and
Cultural Organization (UNESCO) noted the widespread opinion that the
rights of performers and producers of phonograms in the Rome and
Phonograms Conventions were in need of improvement, and that his
organization supported such improvement in its capacity as one of the
organizations which administers the said Conventions, and in the
interest of promotion of cultural activities. He stressed the need to
maintain a balance between the interests of performer's and producers
of phonograms, and between the interests of neighboring rights
beneficiaries and authors. He observed that all performers should be
subject to a single legal regime, rather than one regime in respect of
performances included in phonograms and another in respect of
performances included in audiovisual fixations. In respect of
audiovisual fixations, the observer stated that both the letter and
the spirit of Article 19 of the Rome Convention were no longer
realistic, and stated that the comments of the European Commission in
Annex I might serve as a useful basis for the development of a common
regime of protection for all, performers. The observer said that a
now regime for the protection of performers and producers of
phonograms should not provide higher levels of protection than those
provided to authors, particularly in respect of new technologies,
including electronic communication. He stated that the proposals
between brackets in paragraphs 64(h) and 68(h) of the memorandum
concerning non-voluntary licenses might be seen as proposing the
creation of such licenses on terms more favorable to performers and
producers of phonograms than to authors. The observer was of the view
that the proposed economic and moral rights took into account both
traditional means of exploitation and new means resulting from the
emergence of digital technology and multimedia. In respect of private
copying, he stated that existing systems of remuneration on blank
recording media and recording equipment could be supplemented by
devices to limit all copying from the Master recording or fixation;
this would prevent the phenomenon of serial copying, which prejudiced
the interests of performers and producers of phonograms. The observer
noted that private copying from on-line data bases had become a new
means of exploitation for which the owners of rights should be
compensated, and urged-that the legal status of such copying
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be clarified. In order to minimize the impact of the proposed right
of importation on the movement of cultural products between countries,
the right should apply only to those copies which the owner of rights
had not authorized for export to the country of importation at the
time that the making of the copies was authorized. It should also be
studied what practical consequences a right of importation to be
granted to performers would have in the context of transborder
electronic communications extending to the countries of all
continents. Finally, in respect of the proposed right of
communication to the public, the observer stated that a study of the
uses of protected material currently available to subscribers to
electronic data networks would be useful in identifying the rights
which should be accorded to performers and producers of phonograms
under the rubric of communication to the public.
Definitions
28. The Chairman opened the discussion by stating that it should
focus on all the definitions in paragraph 29 of the memorandum, but it
was not necessary to go into details of all these definitions at this
stage. He emphasized the need to discuss the definitions of
"fixation" and "reproduction" and the three interrelated definitions
of "broadcasting," "communication to the public" and "public
performance," because these definitions had a direct impact on the
contents of the rights, to be granted by the instrument. He reminded
the Committee that the present memorandum, according to its paragraph
9, did not deal with the questions of the rights of performers in
audiovisual fixations. but the International Bureau had stated that it
would prepare a memorandum in due time concerning that issue.
Discussions in this respect would not be precluded at this stage, but
a full discussion might only be possible later.
29. Following the discussion, the Chairman stated that it had been a
short, but full debate, dealing with many details, and that most
interventions merited much consideration. In order to facilitate
this, he proposed, and the Committee accepted, the following way of
reporting. The International Bureau will make a transcript of each
intervention and will summarize it, identifying each speaker. The
transcript and the summary of each intervention will be mailed to each
speaker for comments, within a stated time limit. On the basis of any
comment, the summary will be edited and the report on the definitions
will be published as a supplement to the present report. The Chairman
did not wish to make a summary of the discussions, but offered the
following concluding remarks concerning some important questions
raised during the discussion.
30. It seemed that all delegations and experts accepted the very idea
of having definitions. This was an important decision, because, for
example, only few definitions could be found in the Berne Convention,
and practically none in the TRIPS Agreement. Many comments seemed to
be determined by the contents of the operational provisions on rights
which were still open.
31. Many delegations and observers from intergovernmental and
nongovernmental organizations expressed the opinion that the
instrument should cover the rights of performers whose performances
were included in audiovisual fixations. References were made to the
letter of the European Commission addressed to the Director General of
WIPO, reproduced as Annex I to the memorandum. The inclusion of such
rights would entail consequences for the definitions. The extent to
which the definitions of an instrument not intended to extend to
rights in audiovisual fixations might still refer to fixation or
transmission of images was not defined.
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Some delegations and several observers from non-governmental
organizations were against including rights of performers in
audiovisual fixation into the instrument.
32. One delegation stated' that the generally accepted notions in the
field of copyright and the definitions used in a possible instrument
should be the same or, at least, convergent. The question of the
order of the definitions had also been raised, but it should only be
considered at a later stage, when the contents of the definitions
would be clarified.
33. In respect of the definition of "performers," two delegations and
an observer referred to the protection of performers performing
expressions of folklore. There had only been limited opposition to
the inclusion, of performances of folklore and to the protection of
performers under the instrument. Some delegations and observers from
non-governmental organizations were of the opinion that the definition
of "performers" should not be linked to the performance of a work.
34. As to the definition of "phonogram"-and other definitions as
well--it was asked whether the word "digital" should be retained
because that word referred only to a specific technology. It was
stated that the instrument should be worded in such a general way that
it be not linked to any specific technology.
35. It was questioned whether the sound part of an audiovisual
fixation should be excluded from the definition of a "phonogram." This
question merited careful consideration. A delegation raised the
question whether digital remastering of existing phonograms should be
considered covered by the notion of "fixation." Another delegation
raised the question whether there was a problem with the definition
extending to fixation of musical sounds that were created digitally,
rather than recorded, and thus possibly constituted the reduction to a
material form as a composition, as well as a fixation of sounds, which
did not, however, result from A performance. It was also questioned
whether there had to be a minimum amount of fixed sounds in order to
constitute a "phonogram." In general, it was pointed out that the
interrelated definitions of "fixation" and "phonogram" should be
studied more in detail in order to assure that they would be fully
convergent and, in this respect, also the organization of the
different elements of those definitions should be further considered.
36. Concerning the definition of "producer of phonogram," some
delegations proposed that order to be considered a producer, a person
or legal entity had to take the initiative and responsibility or have
a direct control of the fixation.
37. The definition of "Publication". should be considered carefully
in the context of the definitions of the same notion in the Berne
Convention and in the Rome convention. In relation to sub-item (ii)
of that definition, it was pointed out that it did not contain any
qualification that a phonogram stored in a digital delivery system
should be subject to reasonable availability." It was also said that
digital delivery should not be considered publication, nor should it
be included in a right of' publication. In this connection, it should
be taken into account that, the function of the notion of publication
is a very technical one. Its function is to trigger certain
limitations to the rights and to clarify the points of attachment for
protection, but not to grant any specific right.
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38. During the discussions on the notion of "reproduction," the
attention was focussed on two aspects, namely whether it should cover
the making of a copy "in whole or in part" and whether it should apply
"regardless of the duration of the storage." Almost all delegations
which took the floor on the issue were of the opinion that the term
"reproduction" should not cover the copying of insubstantial parts of
a phonogram or a performance, fixed in a phonogram. Referring to the
determination of similarity in paragraph 25 of the memorandum, some of
these delegations said that the principle of substantiality should
apply in this connection. It was mentioned that this would be a test
of quality, not of quantity. A few observers from non-governmental
organizations were of the opinion that the words "in whole or in part"
should be retained. Some delegations took the stand that copies
should be sufficiently permanent in order to be considered that a
reproduction had taken place, whereas some observers from non-
governmental organizations were in favor of considering even
transitory copies resulting in a reproduction.
39. It was clear that the term "rental" should be defined in the
instrument, but, concerning "public lending," the only opinion
advanced was that lending should not be covered by the instrument.
40. Concerning the notion "public," as it appeared in items (i), (j)
and (k), one delegation asked for a very careful consideration,
because, in its present form, it seemed to cover digital delivery to
receivers at the private level, such as family circles. This,
however, would not be advisable at the present stage of the
discussions. Some delegations also suggested that the notion "public"
be defined separately and not as a part of the definitions of
"communication. to the public" and "public performance," or, that the
definition of that notion should be left to national law and
jurisprudence.
41. A substantial number of delegations expressed their support for a
general right of communication to the public, covering, inter alia,
broadcasting, and, possibly, separate definitions of certain relevant
sub-categories of communication. It was also pointed out that the
definitions of "communication to the public" and "public performance"
were too detailed and that they should be drafted in a simpler way.
42. Finally, the Chairman added that, in his view, a digital
representation of, for example, a musical work might be made by a
person who, simultaneously, composed that work and who determined all
details in respect of the sounds to be produced by the computer. In
this case, that person would be both composer and performer. In other
Cases, a preexisting work, available on a tangible medium would be
coded into the computer by another person than the composer. In that
case, that person would be a performer only. The Chairman considered
it important that the performing element in both situations should be
covered by the instrument. Also, the legal status of sounds which
were not works should be considered, as well as the question how to
determine whether digital representations of works were intended to
produce sounds and thereby entailed an aspect of performance.
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Economic rights of Performers in their live Performances
43. The Chairman opened the discussion by stating that it should
concentrate on issues which were not covered by the TRIPS Agreement or
which were new, compared to that Agreement. He pointed out that there
might be certain problems connected with the transfer of text from the
context of one international treaty into another. Nothing had yet
been decided concerning the scope and character of the possible
instrument, but the discussions should be based on a presumption that
the instrument would be an independent, full international instrument.
44. Concerning the proposals in paragraph 41 of the memorandum* the
Chairman recalled that they had been discussed in detail at the last
session of the Committed. Compared to the TRIPS agreement, the
proposals were based on an "exclusive right to authorize" whereas the
TRIPS Agreement only granted a "possibility of preventing." The right
of broadcasting of live performances, in sub-item (a) covered both
images and sounds, which question would be subject to further,
general, discussion at a later stage. The same applied to the right
of communication to the public of live performances, in sub-item (b).
Concerning the right of fixation of live performances, in' sub-item
(c), such a right was granted in the TRIPS Agreement also, but only in
relation to fixation of sounds. This sub-item, which would also offer
protection against unauthorized audiovisual fixation of performances,
was related to the general discussion regarding audiovisual fixations.
The actual contents of these provisions would, of coarse be fully
determined by the relevant definitions.
45. At the suggestion of the Chairman, the Committee
decided to set this issue aside "freezing it as it stands" to
be considered later.
Economic right of performers in their performances fixed in
phonograms and of producers of phonograms in their phonograms
46. The Chairman, opening the discussion, stated that some of the
issues under this heading had already been dealt with during the
debate on definitions. He proposed that the economic rights of
performers concerning Performances fixed in phonograms and the
economic rights of phonogram producers be regrouped as follows: the
right of reproduction; rights related to distribution (including
exhaustion, rental and, importation); rights related to communication
to the public (including broadcasting and public performance); and
finally, the right of adaptation. The Committee agreed.
Right of reproduction
47. The Chairman recalled that in previous discussions in the
Committee on this issue, there had been no real hesitation, only
doubts concerning the definition of the terms "reproduction" and
"fixation." He thus proposed to leave the proposals concerning this
right for further consideration by the Committee. The Committee
agreed.
48. One delegation expressed reservations concerning a possible right
of reproduction for performers in authorized fixations of their
performances, since that went beyond the Rome Convention minimum.. A
report on this question, recently submitted to the Government, was
still under consideration and would allow its Government to take a
clearer position at a later stage.
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49. An observer from an international non-governmental organization
stated that the right of performers provided for in Article
7(1)(c)(ii) (part of the right of reproduction) of the Rome Convention
had apparently been omitted in paragraph 43 of the explanatory part of
the memorandum and felt that some clarification was needed.
Rights related to distribution
50. In his opening remarks on this point, the Chairman suggested that
the discussion focus as much as possible on the "Rome-plus" and
"TRIPS-plus" elements of the memorandum, and then briefly recalled the
principal relevant features of the TRIPS Agreement. Also, the
discussions in the fourth session of the Committee of Experts on a
Possible Protocol to the Berne Convention had to be taken into
account. In this regard, there had been a consensus on the copyright
side in favor of the recognition of a broad right of distribution in
respect of tangible copies, with carefully regulated exhaustion, and
"survival" of a right of rental. Diverging views had been expressed
on whether exhaustion should be national, regional or global.
Opinions expressed had similarly been divided on the right of
importation.
51. A number of delegations referred to the position they had
expressed in the preceding meeting of the Committee of Experts on the
Berne protocol; many mentioned also that the possible application of a
right of distribution to immaterial transmission should be further
examined at a later stage.
52. A delegation, supported by many other delegations, explained
that, in the European Union, a right of distribution had been
recognized for both performers and producers, which, in relation to
the former, applied to any fixed performance. It had been defined as
the right to make fixations or copies of fixations available to the
public, by sale or otherwise. This right, was not exhausted within
the Union except by the first authorized sale within the Union.
Furthermore, such sale did not exhaust the right of rental--defined as
the making available for use for a limited period of time and for
direct or indirect economic or commercial advantage. The delegation
preferred the relevant elements of that definition to the concept of
"transfer of possession" mentioned in the memorandum. Works of
architecture and of applied art were not covered by these rights, and
exceptions for the making available for the purpose of public
performance or broadcasting, for exhibition or for on-the-spot
reference had been provided. The right of distribution, including the
right of rental, applied, for performers in respect of all fixations
of their performances, whether audio, visual or audiovisual. The
delegation stated that. it could support at the international level a
right of distribution and rental for all performers in relation to
fixations of their performances and for phonogram producers, provided
it included regional exhaustion (for example, within the European
Union or the European Economic Area), and that it, therefore,
maintained the position stated in relation to the importation right
during the session of the Berne Protocol Committee. One of the
delegations that supported this statement added that it could support
a right of importation only if a similar right was established for
authors and if national legislators could make certain exceptions, for
example as regards public lending and the possibility for specialized
establishments to make collections available to the public, which
sometimes involved using material from many parts of the world. That
delegation also had doubts concerning the need for paragraph 64(c)
dealing with non-voluntary licenses.
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53. Another delegation favored a broad right of distribution,
including a right of importation, for both pirate and legitimate works
and recordings. This right would be important in the Global
Information Infrastructure (GII). The right should be exhausted after
a first, sale, except as regards the right of rental. In its country,
performers were considered as authors, but, of course the provisions
on works made for hire also applied to them.
54. A number of delegations supported the right of distribution as it
was proposed in the memorandum. Another delegation, recalling its
statement during the meeting of the Committee of Experts on a possible
protocol, reserved its position concerning the right of distribution
generally. Other delegations expressed hesitations concerning this
right, although they stated that they could accept a right of
importation for pirate copies. Another delegation queried whether the
phrase "other transfer of ownership" mentioned in paragraphs 63(b) and
67(b) would cover the case of bankruptcy.
55. Some delegations expressed doubt concerning a right of
importation for either performers or producers. Parallel importation
allowed smaller countries to import works and phonograms from larger
markets, particularly "niche" products, and often at a lower price.
It allowed greater access to the progress of human civilization.
Another delegation disagreed, indicating that there was no clear
evidence of benefits for the consumer. Some delegations added that
studies on this question were being conducted in their country and
preferred to reserve their position for the time being.
56. Two delegations supported the inclusion of a public lending right
in the new instrument. A great number of other delegations opposed
the inclusion of a right in respect of public lending, either for
performers and/or producers. A delegation suggested adding the words
"otherwise than by public lending," after "to authorize the
distribution" (in paragraphs 63(b) and 67(b)), to make it clear that
public lending was not covered in the new instrument.
57. As regards performers specifically, a delegation indicated that,
in its country, performers were protected through assignment of their
rights to producers of sound recordings, which were protected as works
and pointed out that a right of importation for performers would upset
contractual agreements.
58. Another delegation was of the opinion that the rights proposed in
paragraphs 63(e) to (g) of the memorandum could probably be acceptable
to some delegations provided they were administered collectively.
59. As regards producers of phonograms specifically, a delegation
stated that: sound recordings were treated as works in its country and
that the producer obtained author's rights. A number of delegations
stated that a right of importation could be considered for producers
of phonograms only.
60. An observer from a non-governmental organization representing
performers stated that a right of distribution, including a right of
rental, should apply to all forms of fixations of performances,
including those that were never published as phonograms. The right of
distribution should apply to copies and be considered together with
the right of importation. These rights should be exclusive to serve
as the backdrop to negotiations, particularly collective bargaining.
The fact that it was, perhaps, more convenient to have the rights
exercised by producers was not: a reason not to recognize them to
performers. Moreover, in his view, under Article 14 of the TRIPS
Agreement, performers had both a reproduction right and a right of
rental: as holders of the former, they were necessarily "other rights
holders in phonograms" (as mentioned in
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Article 14 of, the Agreement) in respect of the latter. Hence, States
ratifying the TRIPS Agreement were obligated to recognise a rental
right for performers.
61. An observer from another international non-governmental
organization representing producers of phonograms believed that rights
concerning the access by the public to phonograms should not be based
on a particular technology; hence, he suggested adding the words "by
any technological means or process" at the end of paragraph 67(b). He
also opposed the exclusion of personal baggage to the tight of
importation, as proved in paragraph 68(d), since collectively this
kind of importation of copies did much harm to rights holders. While
it could be said that customs authorities in many countries had
limited resources, it was totally unnecessary and probably dangerous
to make the whole process of importation in a traveller's personal
baggage lawful. The observer supported the inclusion of a rental
right but without the grandfather clause allowing countries to
maintain a system of equitable remuneration. Finally, it questioned
the need for the words "exercise of" in paragraph 68(c), which
differed thereby from the corresponding provision of the TRIPS
agreement.
62. An observer from still another international non-governmental
organization representing authors, supported by another observer,
replied that an open reference to "any technical means or process"
could cover immaterial transmissions under the right of distribution,
a subject which had been left for later consideration. He had
reservations concerning the proposed addition.
63. In his concluding remarks, the Chairman recalled that
many participants had made reference to the discussions in
the Committee of Experts on the possible protocol. In
respect of the right of distribution, there was broad
support, as in the first session of the Committee, to make a
general right of distribution a starting point, to be
accompanied by carefully-drafted provisions on exhaustion
(national, regional or global.) after the first sale or other
transfer of ownership. There was also broad support, though
not unanimous, for a right of rental. The prevailing opinion
in this connection was that such a right should be
established for both performers and producers of phonograms,
but some participants preferred to recognize the right to
only one of these two categories of rights holders. On the
importation right, opinions were divided, but sufficient
support had been expressed for the matter to remain en the
agenda. Finally, public lending should be excluded from the
right of distribution in the new instrument, either by
defining the right so as to exclude it or, as suggested by a
delegation, to have a broad right and then a specific
exception.
Rights related to communication to the public
64. The Chairman referred to the history of the discussions on this
point, to the previous debate on definitions, and to the fact that the
smallest common denominator up to now has been a right to equitable
remuneration. An important question now before the Committee was
whether digital broadcasting changed that tentative conclusion.
65. A delegations supported by many other delegations and some
observers from international non-governmental organizations, stated
that technological differences per se should not, lead to different
legal regimes in the field of broadcasting. delegation supported this
view by reference to the fact that many national laws did not
distinguish between cable and wireless
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transmissions. In this connection, it could be said that digital
broadcasting was only an improvement over analog broadcasting.
However, a crucial difference between the digital environment and the
analog one occurred when recipients or users could choose the place
and time at which they received a phonogram or other material. From
this viewpoint, it was not technology, but rather the effect or
practical result that mattered, independently of the process used.
The new modes of broadcasting and delivery made the delineation
between the acts of broadcasting communication to the public and
public performance, respectively, quite difficult; moreover, some
combinations of these acts could be envisaged. A delegation drew
attention to the fact that the differences between the purchase and
rental of copies had not; always deferred governments from granting
exclusive rights. The obtaining of a permanent copy did not therefore
seem the decisive consideration in the appreciation whether exclusive
rights would be appropriate. The character of the transaction And the
ability of the consumer to select the copy seemed more ,important.
This was without prejudice to any final conclusion as to the
definition of the right applicable to "immaterial transmissions." This
delegation, therefore, agreed that "immaterial transmissions" should
remain on the agenda for further study and consideration, notably
because it would allow worldwide private and public transmission of
works and other material. The delegation also referred to the
directive of the European Union on the rental right and certain rights
related to copyright, which provided for a right of remuneration when
commercial phonograms were used for broadcasting or communication to
the public. Without prejudice to the continuing discussions on
"immaterial transmissions", it could support a similar regulation at
the international level.
66. Two delegations referred to the common view of the four Mercosur
member States according to which both performers and producers should
have a right of digital communication to the public, applying to
cable, satellite or any other system when such communication was the
equivalent of distribution or, in other words, when the user could
choose the works he received.
67. Another delegation stated that a right of communication to the
public for copies of phonograms was important, particularly in the
Global Information Infrastructure (GII). The GII would have a
tremendous impact on the way in which phonograms were created,
disseminated, communicated to the public and performed. In the case
of on-demand delivery systems, it supported the recognition of
exclusive rights and suggested that the Committee focus on the
Possibility that those systems would substitute for sales of copies of
Phonograms; it added, however. that this was not the same as
broadcasting. The delegation stressed that mandatory collective
administration was but one of the ways in which the rights could be
administered. Other forms, using Electronic Copyright Management
Systems (ECMS) could provide a wide array of different licensing
arrangements In its country, the Copyright Office was considering
unique identifiers for electronic networks (such as Internet),
electronic registration and signature and deposit of copies. Tests on
a "private key/public key" system were being conducted. In its view,
the Committee should study which rights applied to electronic
distribution, given that that phenomenon would affect economies
worldwide. Finally, the would no doubt offer clues on the road to
take. Another delegation supported delegation pointed out that the
evolution of relevant commercial practices this last point.
68. Numerous other delegations supported a right of equitable
remuneration for both performers and producers of phonograms for
broadcasting of their fixed performances and phonograms, respectively.
A number of delegations opposed exclusive rights in this connection.
one of those delegations said
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that such rights would clash with established practices in its
country. As regards digital broadcasting and on-demand delivery
systems, reservations were, expressed, but, on the whole, delegations
that took the floor agreed that the issue should remain on the agenda.
69. A number of observers from non-governmental organizations
representing broadcasters opposed the recognition of exclusive rights
for either performers or producers of phonograms. Some of them could
accept, however, a right to equitable remuneration as laid down in the
Rome Convention and Article 14 of the TRIPS agreement. If exclusive
rights War* granted, collective administration would not be a
guarantee for appropriate access to fixed performances and phonograms.
If collective administration organizations had exclusive rights, they
could refuse licenses or impose unreasonable terms. Some of the
observers Alto stressed that broadcasting was a form of publicity for
phonograms, thus benefiting composers, performers and producers of
phonograms and encouraging the purchase of copies by consumers. They
doubted that producers invented as much as they ought to in the
development of local talent and artists performing works of folklore,
a role that national and local governments, as well At broadcasters,
traditionally fulfilled. An obligation to make payments for the
broadcasting of phonograms would lead to reductions in programming, in
particular in smaller and developing countries. Some observers stated
that for the above reasons, no payment should be made for broadcasting
of phonograms and that this position was consistent with the
reservations permitted under the Rome Convention. Another observer
stated that there was no consensus on a right for performers or
producers of phonograms in North America, that none was recognized in
the United States of America and Canada and that none was contained in
the NAFTA agreement. It was also said that the recording industry
already made substantial profits and needed no additional rights. In
this regard, the advent of digital broadcasting was merely an excuse
to ask for now rights, as it had been attempted when FM and then when
stereo broadcasting had been introduced. There was, for example, no
evidence whatsoever that digital broadcasting would lead to an
increase in private copying or impinge on sales of phonograms.
Another observer added that even with analog broadcasting, a study in
the United States of America had shown that little copying was done by
listeners. In any event, adequate technical means were available to
protect rights holders, such as the Serial Copy Management System
(SCMS). Moreover, a clear distinction had to be made between
traditional broadcasting and on-demand delivery. The lumping together
of both phenomena had led to proposals that were too broad and would
make it very difficult, if not impossible, for broadcasters to support
a possible new instrument. Still another observer added that, in
countries where international treaties formed part of national law,
granting exclusive rights and then only a possibility to limit them to
a right to equitable remuneration would pose difficulties.
70. A number of observers from international nongovernmental
organizations disagreed. One of those observers stated that
broadcasters used phonograms to increase their audiences.
71. An observer from an international non-governmental organization,
supported by a number of other observers, stated that the real
question was to determine which uses of fixed performances and
phonograms necessitated or justified exclusive rights, and which other
uses could be suitably covered by a simple right to remuneration. In
this connection multichannel broadcasting would have to be assimilated
to on-demand delivery systems. What mattered was the use that would
or could be made by the user of the system. In other words,
economically comparable situations should be dealt with on the same
legal footing. For example, in a situation where up to 800 different
digital
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channels were available to a listener/user--and where a program
listing was made available--it was very easy to make CD-quality copies
at home of works of a precise genre, artist, period, etc., without
ever purchasing a copy. This would obviously directly and
substantially affect financial flows, to the detriment of rights
holders and, ultimately, of everyone, since it would lead to
reductions in investment in new productions.
72. Another observer from an international non-governmental
organization said that Article 12 of the Rome Convention embodied a
delicate balance among the various interests involved. With the
advent of on-demand delivery systems" and huge data bases of music
available on-line, the situation could perhaps be reconsidered. The
observer preferred to reserve its position at this stage, however.
73. An observer from an international non-governmental organization
representing authors stressed that the concerns of authors had to be
borne in mind. The fundamental element in a sound recording was the
musical work, which could exist without the recording; the converse
was not true. Performances and phonograms were derivative productions
and, evidently, rights in such derivative productions granted to
performers and producers of phonograms could not be greater than the
rights of the author of the underlying work. In this connection, it
was universally recognized that derivative productions could not be
used without the authorization of the author of the original work.
The hierarchy between, on the one hand, authors' rights and, on the
other, neighboring rights, had to be maintained. Otherwise, the
commercial interests of the owners of rights in derivative productions
(for example, a refusal to license a sound recording containing a
musical work) would directly interfere with the rights of the author
and thus derogate from a bedrock principle of the international
protection of copyright and neighboring rights.
74. Another observer from a non-governmental organization
representing performers disagreed, underlining the important role of
performers, who gave "life" to music. Most, if not all, songs would
never be popular without the intervention of performers.
75. An observer from a non-governmental organization believed that
exclusive rights were the best way to face new market practices and
the technical solutions that related to them. Rights holders were not
in the business of denying access to works, quite to the contrary. To
disseminate works as widely and flexibly as possible, they needed
exclusive rights; therefore, the breadth of the proposals should be
increased as much as possible and, in this respect, paragraphs 64(e)
and 68(e) should be deleted, since exceptions to exclusive rights
would necessarily interfere with what was becoming a normal
exploitation of the work and would prejudice the legitimate interests
of rights holders. The reasons that warranted an exclusive right for
on-demand delivery applied equally to all other forms of delivery or
broadcasting having a similar effect.
76. As regards performers specifically, observers from international
non-governmental organizations representing performers favored
exclusive rights for performers in respect of broadcasting,
communication to the public and public performance; they insisted that
all fixed performances should be covered, including audiovisual
fixations. One of these observers proposed that the phrase "his
performance fixed in a phonogram" in paragraph 63 should be replaced
by "his fixed performance." Economically significant performances not
fixed in commercial phonograms included background music, music for
certain television and radio programs, notably educational programs as
well as
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music libraries. Also, some live performances were delivered on cable
networks, stored in digital form and then transmitted on-demand at a
later time. This often did not involve either the recording or the
film industry, but nevertheless directly affected performers. In this
regard, paragraphs 64 (e) and (f) of the memorandum should make it
clear that they apply only to traditionally-published commercial
phonograms. Finally, fears expressed by broadcasters representatives
concerning the "un-manageability" of exclusive right's were unfounded
and could be allayed by collective administration, which worked well
already it a large number of countries for performers, tights.
77. Another observer from an international non-governmental
organization recalled the difficult discussions before the adoption of
the Rome Convention. The outcome had been the recognition of a right
in respect of communication to the public and broadcasting of
phonograms (Article 12). The question at this juncture was therefore
not whether this right should exist, as it had for more than thirty
years, but how it could be bolstered. While a right to equitable
remuneration was useful, it would be inadequate in a multichannel
broadcasting environment. In fact, one could say that "narrowcasting"
would replace some parts of traditional broadcasting and in that
regard, a right in respect of on-demand delivery would have to apply
also to de facto on-demand delivery. Another observer disagreed,
adding that on-demand delivery systems could be a powerful commercial
tool for rights holders.
78. As regards producers specifically, an observer from an
international non-governmental organization representing producers of
phonograms agreed with a number of points made on behalf of performers
and with the comment that attention Should be focused on determining
where exclusive rights were justified. Broadcasting and communication
to the public represented the principal commercial use of phonograms
and contributed largely to the recuperation of investments. In
respect of on-demand delivery and multichannel broadcasting, the
Committee should consider the economic situations involved and market
practices, not technical differences. Those systems were more akin to
distribution of copies than to broadcasting. If a listener/user could
make CD-quality copies at home at a marginal cost, this would be a
viable substitute for album purchases. This was very important
because sales of albums were a main source of income not only for
producers, but also for authors and performers. In this context, a
right to remuneration for neighboring rights holders would not be
optimal, as it would be too incomplete to face new situations and
market changes.
79. In his concluding remarks, the Chairman first recalled
that, as inprevious discussions in the Committee, a right to
equitable remuneration was a common denominator in respect of
traditional broadcasting and communication to the public.
There was, however, limited support for exclusive rights.
The discussion on definitions had shed now light on certain
aspects. As regards on-demand delivery, some delegations and
a number of non-governmental organizations could accept to
consider an exclusive right, but a majority felt that further
study, at national, regional and international level was
necessary, as part of the study on the impact of digital
technology, which seemed to be one of the most important
aspects for the further preparatory work on the now
instrument.
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Moral rights of performers, right of adaptation of performers and
producers of phonograms
80. The Chairman opened the discussion by stating that the proposals
to include provisions on the moral rights of performers, the economic
right of performers to authorize adaptation of fixations of their
performances, and the economic right of producers of phonograms to
authorised adaptations of their phonograms, would be discussed
together. He summarized the conclusions drawn on these proposals by
the Committee in its earlier sessions.
81. A large number of delegations and numerous observers from
intergovernmental and non-governmental organizations, supported the
inclusion of provisions on the moral rights of performers in the now
instrument. The reason most frequently cited were the increased
possibilities for modification and reuse of fixations of performances,
or parts thereof, made possible by the new technologies. It was said
that such acts could negatively affect the interests of performers by
failing to identify them as the creators of the original, unmodified
performances or parts of performances, and by producing altered
versions of their performances competing with the original ones.
82. Notwithstanding the general support for provisions on the moral
rights of performers, a number of delegations reserved their position
on the proposed rights, expressing hesitation on several practical
questions in respect of the circumstances in which the rights would be
exercised. Several observers, mainly from organizations representing
authors and broadcasting organizations, expressed opposition to the
inclusion of provisions on moral rights of performers in the new
instrument.
83. Those delegations and observers which supported inclusion of
moral rights of performers noted that the interests of performers in
respect of the right to be identified as creators and the right to
object to certain modifications of their performances were not
different in kind from the interests of authors in respect of those
rights which were guaranteed in Article 6bis of the Berne Convention
and in the laws of the member States of the Berne Union. A few
delegations and observers also proposed that the moral rights of
performers should be expressed in the same language as Article 6bis.
One delegation pointed out that performers are recognized as joint
authors under the national law of its country, with the consequence
that they had the same moral rights as authors. Another delegation,
as a basis of its support for inclusion of moral rights in the
instrument, pointed out that the exclusion of moral rights from the
obligations under the TRIPS Agreement had been viewed unfavorably by
the performers in its country. Another delegation took the view that
the terms "distortion" and "mutilation" should, be expressed
separately from the term "modification", in paragraph 35(b), since the
former in itself indicated prejudice to the interests of performers,
whereas the latter was more neutral and might indicate changes in a
performance which were not necessarily prejudicial, and thus required
further qualification.
84. In respect of the term of protection of moral rights, three
options were considered. Several delegations supported a term of
protection equal to that of the economic rights of performers. Two
delegations said that: moral rights should be perpetual, and one
observer said that, in light of the fact that. the interests intended
to be protected by moral rights were personal to the performer,
exercise of the rights after the death of the performer should be
strictly limited.
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85. Several delegations and observers from intergovernmental and non-
governmental organizations expressing hesitation concerning inclusion
of moral rights raised questions in respect of the use of the phrases
"as far as is practicable" and "in the customary way to modify the
scope of exercise of the right of paternity in paragraph 35(a). One
delegation and some observers from organizations representing
broadcasting organizations supported the use of the language-because
it implied a limitation on the exercise of the right on grounds of
necessary flexibility in keeping with commercial practice in
particular industries, while some observers from non-governmental
organizations representing performers stated that there were few
circumstances in which exercise of the right would not be practical,
or would interfere unreasonably with commercial exploitation of, in
particular, fixations of performances. One delegation, supported by
another delegation, stated that the question of the practicability of
exercise of moral rights in respect of performances and fixations
thereof created by more than one performer should be studied.
Hesitation was also expressed concerning use of the word serious" to
modify "distortion, mutilation, etc., and the word "grave" to modify
"prejudice" in paragraph 35(b). Some observers from nongovernmental
organizations representing broadcasting organizations urged that the
modifiers be included to indicate that only the most egregious
alterations of performances and fixations thereof would be within the
scope of the performers' right of integrity, while a number of
delegations and several observers, mainly from non-governmental
organizations representing performers, took the view that the
modifiers should be excluded, in order to conform the language of the
right more closely to Article 6bis of the Berne Convention, and
because the words "serious" and "grave" were too subjective for
inclusion in an international instrument.
86. An observer from a nongovernmental organization representing film
producers stressed that a distinction should be made, in respect of
the right of integrity, between the interests of performers whose
performances were included in phonograms and the interests of
performers whose performances were included in audiovisual fixations;
in the former case, the performance was completed when it was first
fixed, whereas in the case of an audiovisual fixation, the performance
was subject to acts of others, including film directors and editors,
subsequent to fixation. Likewise, the observer added, the
relationship between the moral rights of audiovisual performers and
those of film directors, which in many countries were recognized under
copyright, should be taken into account. Two delegations noted that
protection of moral rights could be available under legal regimes
other than copyright and related rights, including the common law. An
observer from a non-governmental organization noted that the question
of inclusion of moral rights in the now instrument had a clear
political dimension, since, in its view, moral rights were not
respected to the same extent in all countries, including some the
support of which was necessary in order for the now instrument to
achieve wide acceptance.
87. Several comments were made concerning the relationship between
the moral right of integrity, on the one hand, and parody, on the
other. A few delegations and an observer from a non-governmental
organization said that parody should be allowed as a permissible
exception to the right of integrity in the new instrument, since it
served the interest of free expression. Another delegation said that
the now instrument should leave the question of the scope of parody to
national laws or judicial determination.
88. In respect of the proposed right of performers to authorize
adaptation of their performances and of fixations thereof, and the
proposed right of producers of phonograms to authorize adaptation of
their phonograms, some
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delegations and observers from nongovernmental organizations expressed
support, while several other delegations and observers from non-
governmental organizations reserved their positions and urged further
study of the proposed right. A few delegations stated that the
proposed right should be considered separately from the moral rights
of performers, since clear distinctions were evident between the cases
in which the respective rights would be exercised.
89. Those who supported the right cited the possibilities for
modification of performances, fixations and phonograms made possible
by digital technology, and noted that, while not all modifications
might be prejudicial to moral interests, they were occurring with ever
greater frequency in a commercial context and should be subject to
some degree of control by the owners of rights involved. Two
observers stressed the need for a definition of adaptation; one of
these stated adaptation occurs when any element of a performance is
incorporated in, or used for the creation of, a fixed performance.
90. Those who expressed reservations concerning the right raised
questions concerning its proper scope. Two delegations stated that
the right should be called a right of "modification," to distinguish
it from the economic right of adaptation provided to authors and
owners of copyright in literary and artistic works. Likewise, an
observer expressed the view that a performer could never be considered
as the author of an adaptation. A, delegation stated that the right
of adaptation should be accorded only to producers of phonograms,
since the right was only meaningful in the context of fixations, the
economic exploitation of which was usually In the hands of the
producer rather than the performer.
91. Several delegations and observers from non-governmental
organizations expressed the view that all adaptations involved some
degree of copying, which was covered by the right of reproduction, and
that the concepts of substantiality and similarity applied in respect
of the right of reproduction made the right of adaptation unnecessary,
especially if such concepts were applied in a qualitative, rather than
a quantitative way in respect of the use of performances. Two
observers from non-governmental organizations disagreed, stating that
it was often difficult to prove substantiality or similarity when a
performance or part thereof was incorporated Into a new fixation, even
if the origin of the original performance was know, because the new
fixation could involve such a combination of elements that the
original performance was completely unidentifiable therein. Thus, one
of these observers stated that the right of adaptation was needed to
fill the gaps in the right of reproduction, and the other observer
referred to its earlier proposal to include, in the definition of
performers, the notion of performers who "contribute" to the works, A
delegation stated that the relationship between the right of
reproduction, the right of first fixation, and the proposed right of
adaptation should be studied thoroughly.
92. The Chairman summarized the discussion and stated the
following; There was broad support for inclusion of
provisions on the moral rights of performers in the new
instruments, but hesitations and reservations were also
expressed, and the need for further study was stressed.
Questions were raised concerning the use of the phrases "as
far as is practicable" and "in the customary way" to modify
the scope of exercise of the right of paternity, and
suggestions were made for the deletion of the words "serious"
to modify "distortion mutilation, etc., and grave" to modify
"prejudice," in respect of the right of integrity.
Concerning the criterion of practicability, suggestions were
made to Study the scope of exercise of moral rights where
performances or
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fixations were created by more than one performer. A
suggestion was made to redraft the proposed right of
integrity to distinguish "distortion" and "mutilation" from
"modification." It was also said by some participants that
the moral rights of performers should be equal to those
provided to authors. No conclusion could be drawn on the
duration of moral rights of performers, although the majority
of those addressing the question preferred that the duration
be at least equal to the economic rights of performers.
There was broad support for inclusion of the economic right
of adaptation in the now instrument, although there were also
participants who opposed this right or who were in favor of
further detailed analysis of the need for the right. The
relationship of the proposed right to the right of
reproduction was mentioned. It seemed that some adaptations,
but not all, might be within the scope of the right of
reproduction. Both the proposals for moral rights for
performers and the economic right of adaptation of performers
and producers of phonograms would be retained on the agenda
of the Committee for further consideration.
Next session of the Committee
93. The Committee unanimously agreed that
(i) the next session of the Committee should be joint
with the next session of the Committee of Experts on a
Possible Protocol to the Berne Convention;
(ii) the said sessions should be hold from September 4
to 8, 1995, for substantive discussions, and on September 12,
1995, for the adoption of the report or reports;
(iii) the Director General will invite the
Government members of the Committee and the European
Commission to send, by June 20, 1995, to the International
Bureau proposals to be discussed by the next session of IL
the Committee;
(iv) the preparatory documents of the next session of
the Committee will consist of the proposals mentioned in the
preceding item, and a discussion paper to be prepared by the
International Bureau on the! questions of the rights of
performers in audiovisual fixations.
V. Adoption of the report and closing of the session
94. The Committee unanimously adopted this report, and, after the
usual statements of thanks, the Chairman declared the session closed.
[Annex follows]
100
I. MEMBERS/MEMBERS
(dans l'ordre alphabetique des noms francais des Etats/
in the alphabetical order of the names in French of the States)
AFRIQUE DU SUD/SOUTH AFRICA
Louis T.C. HARMS, Judge of Appeal, Chairman of the Advisory Committee
on Patents, Trade Marks, Copyright and Designs, Bloemfontein
Andrew G. MICHIE, Third Secretary, Permanent Mission, Geneva
ALGERIE/ALGERIA
Rabea MORSI (Mlle), Chef de departement, Office national du droit
d'auteur (ONDA), Alger
ALLEMAGNE/GERMANY
Kurt KEMPER, Head, Copyright Law Division, Federal Ministry of
Justice, Bonn
Daniela HORNE (Mrs.), Deputy Head, Copyright Law Division, Federal
Ministry of Justice, Bonn
ARGENTINE/ARGENTINA
Hilda RETONDO (Sra.), Directora Nacional, Direccion Nacional del
Derecho de autor, Ministerio de Educacion y Justicia, Buenos Aires
Maria Cristina TOSONOTTI (Srta.), Segundo Secretario, Mision
Permanente, Ginebra
Luis AGUADO, Gerente de la Camara Argentina de Productores de
Fonogramas y Videogramas y sus Reproducciones (CAPIF), Buenos Aires
Miguel Angel EMERY, Abogado, Facultad de Derecho, Universad de Buenos
Aires, Asesor Juridico de la Sociedad Argentina de Autores y
Compositores de Musica (SADAIC), Buenos Aires
Leandro Dario RODRIGUEZ MIGLIO, Sociedad Argentina de Autores y
Compositores de Musica (SADAIC), Buenos Aires
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page 2
ARMENIE/ARMENIA
Vladimir M. KOSTANDIAN, Chief, Armenian National Copyright Agency,
Yerevan
AUSTRALIE/AUSTRALIA
Chris CRESWELL, Secretary, International Trade Law and Intellectual
Property Branch, Attorney-General's Department, Canberra
Greg POLSON, Executive Officer, Services and Intellectual Property
Branch, Department of Foreign Affairs and Trade, Canberra
AUTRICHE/AUSTRIA
Gunthor AUER, Director, Federal Ministry of Justice, Vienna
BELARUS
Nicholai LEPILO, Chairman, Committee on Copyright and Neighboring
Rights, Minsk
BELGIQUE/BELGIUM
Jerome DEBRULLE, secretaire d'administration, Ministere de la justice,
Belgique, Geneve
Jean-Marie WAREGNE, conseiller, delegue de la Communaure francaise de
Belgique, Geneve
BRESIL/BRAZIL
Roberto JAGUARIBE, Counsellor, Permanent Mission, Geneva
Otavio Carlos Afonso DOS SANTOS, Coordinator of Copyright, Ministry of
Culture, Brasilia
Otavio BRANDELLI, Third Secretary, Ministry of External Relations,
Brasilia
Hildebrando PONTES NETO, Advogado, Faculdade de Dereito Milton Campos;
Representante do Escritorio de Direitos Autorais da Fundacao
Biblioteca Nacional (FBN) Belo Horizonte
CANADA
Madeleine T. BETTS (Ms.), Senior Policy Advisor, Intellectual Property
Policy, Industry Canada, Mission to the European Communities, Brussels
Bruce COUCHMAN, Legal Advisor, Intellectual Property Policy
Directorate, Department of Industry, Ottawa
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Anne Marie LABELLE (Mme), conseillere juridique, Ministere de la
justice, Ottawa
Anne McCASKILL (Ms.), Counsellor, Permanent Mission, Geneva
CHILI/CHILE
Alejandro ROGERS, Consejero, Mision Permanente, Ginebra
CHINE/CHINA
SHEN Rengan, Deputy Director General, National Copyright
Administration of China (NCAC), Beijing
ZHANG Zhigin, premier secritaire, Permanent Mission, Geneva
COLOMBIE/COLOMBIA
Fernando ZAPATA LOPEZ, Director General, Direccion Nacional del
Derecho de Autor, Santo Fe de Bogota
Carlos Eduardo CARRENO PINTO, Asociacion de Productores e Industriales
Fonograficos de Colombia (ASINCOL), Santa Fe de Bogota
Carlos Alberto GIRALDO BETANCUR, Abogado, Director de Radio y TV,
Asociacion Colombiana de Interpretes y Productores Fonograficos
(ACINPRO), Medellin
Juan Carlos ESPINOSA, Primer Secretario, mision Permanente, Ginebra
COSTA RICA
Laura THOMPSON (Sra.), Primer Secretario, Mision Permanente, Ginebra
COTE D'IVOIRE
Norbert Etranny YAO, directeur general du Bureau ivoirien du droit
d'auteur, Abidjan
DANEMARK/DENMARK
Jobannes NORUP-NIELSEN. Read of Division, Ministry of Culture,
Copenhagen
Benedikte GERSING (Mrs.), Head of Section, Ministry of Culture,
Copenhagen
Troels MUNK, President, Danish Actors Association, Copenhagen
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EGYPTE/EGYPT
Mohammed Sheta ABOU SAAD, President, High Court of Appeal, Cairo
ESPAGNE/SPAIN
Teresa PEREA GONZALEZ (Sra.), Jefe del Servicio de Estudios Juridicos,
Subdireccion General de la Propiedad Intelectual, Ministerio de
Cultura, Madrid
ETATS-UNIS D'AMERIOUE/UNITED STATES OF AMERICA
Michael KEPLINGER, Senior Attorney, Patent and Trademark Office,
Department of Commerce, Washington, D.C.
James M. GAGNON, Office of Intellectual Property and Competition,
Bureau of Economic and Business Affairs, Department of State,
Washington, D.C.
Dianne MARKOWITZ (Ms.), Director, Intellectual Property Office of the
U.S. Trade Representative, Washington, D.C.
Marybeth PETERS (Ms.), Register of Copyrights, Copyright Office,
Washington, D.C.
Darrell PANETHIERE, Chief Counsel, Minority, Senate Judiciary
Subcommittee on Patents, Copyrights and Trade Marks, Washington, D.C.
Paul SALMON, First Secretary, Office of the U.S. Trade Representative,
Geneva
EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE/THE FORMER YUGOSLAV REPUBLIC
OF MACEDONIA
Olgica TRAJKOVSKA (Mrs.), Assistant of the Minister, Ministry of
Culture, Skopje
Silvija TRPKOVSKA (Ms.), Advisor, Ministry of Culture, Skopje
Zoran JOLEVSKI, First Secretary, Permanent Mission, Geneva
FEDERATION DE RUSSIE/RUSSIAN FEDERATION
Boris KOKIN, Head of Section, Legal Department, Ministry of Foreign
Affairs, Moscow
Ekatherina ANANJEVA (Mrs.), Deputy Director, Legal Department, Russian
Authors' Society, Moscow
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FINLANDE/FINLAND
Jukka LIEDES, Special Government Advisor, Ministry of Education,
Helsinki
Hannu WAGER, Government Secretary, Ministry of Education, Helsinki
VaItteri NIIRANEN, Administrative and Policy Assistant, Ministry of
Education, Helsinki
FRANCE
Helene de MONTLUC (Mme), chef du Bureau de la propriete litteraire et
artistique au Ministere de la culture et de la francophonie, Par-is
Helene STOCLIN (Mlle), attache d'administration, Direction des
relations economiques, Ministere de l'economie, Paris
Joelle ROGE (Mme), premiere secretaire, Mission permanents, Geneve
GHANA
Bernard Katernor BOSUMPARH, Assistant Copyright Administrator,
Copyright Office, Accra
GRECE/GREECE
Emmanouel MANOUSSAKIS, premier conseiller (Affaires economiques et
commerciales), Mission permanente, Geneve
HONGRIE/HUNGARY
Gabor FALUDI, Legal Director, Hungarian Bureau for the Protection of
Authors' Rights (ARTISJUS), Budapest
Pal TOMORT, Director, Bureau for the Protection of Performers,
Budapest
INDE/INDIA
Valsala G. KUTTY (Mrs.), Deputy Secretary, Department of Education,
Ministry of Human Resource Development, Government of India, New Delhi
IRLANDE/IRELAND
Martin SHANAGHER, Deputy Head, Copyright Intellectual Property Unit,
Department of Enterprise and Employment, Dublin
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ISRAEL
Dan GOTTFRIEB, Legal Advisor on Performing Rights, Tel Aviv
Gershon SCHNIDER, Legal Council of the Israel Company for Performers
Rights, Tel Aviv
ITALIE/ITALY
Vittorio RAGONESI, juge de la Cour de cassation, Bureau legislatif,
Ministere de la justice, Rome
Andrea MELONI, conseiller, Mission permanents, Geneve
JAPON/JAPAN
Masato KITANI, Director, International Copyright Office, Copyright
Division, Cultural Affairs Department, Agency :for Cultural Affairs,
Tokyo
Hiroshi SAITO, Professor, Tsukuba University, Tokyo
Takahiro MOCHIZUKI, Official, intellectual Property Policy Office,
Industrial Policy Bureau, Ministry of International Trade and
Industry, Tokyo
Hiroshi TAKAHASHI, First Secretary, Permanent Mission, Geneva
KENYA
Paul OMONDI-MBAGO, Registrar-General, Office of the Attorney General,
Nairobi
LESOTHO
Nkhetheleng Regina MAOPE (Mrs.), Deputy Principal Secretary, Ministry
of Tourism, Sports and Culture, Maseru
LIBERIA/LIBERIA
Pei GAUSI, Deputy Minister of Justice, Ministry of Justice, Monrovia
Roland MORRIS, Counsellor, Ministry of Commerce, Monrovia
LUXEMBOURG
Fernand SCHLESSER, inspecteur principal premier en rang, chef du
Service de la propriete intellectuelle, Luxembourg
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MALTE/MALTA
Godwin WARR, Principal, Industrial Property Office, Department of
Trade, Valletta
MAROC/MOROCCO
Fatima BAROUDI (Mlle), deuxieme secretaire, Mission permanente, Geneve
MEXIQUE/MEXICO
Samuel TOLEDO CORDOVA, Subdirector de Registro, Direccion General del
Derecho de Autor, Secretaria de Educacion Publica, Mexico
Dolores JIMENEZ HERNANDEZ (Sra.), Consejero, Mision Permanente,
Ginebra
NIGERIA
Moses F. EKPO, Director/Chief Executive, Nigerian Copyright Council,
Lagos
NORVEGE/NORWAY
Bengt O. HERMANSEN, Head of Division, Norwegian Ministry of Cultural
Affairs, Oslo
Maria S.E. DUNA (Mrs.), Senior Executive Officer, Norwegian Ministry
of Cultural Affairs, Oslo
Tore NORDVIK, President, Norwegian Musicians' Union, Oslo
Bernhard RAMSTAD, President, Norwegian Actors' Equity Association,
Oslo
PAKISTAN
Irfan BALOCH, Second Secretary, Permanent Mission, Geneva
PARAGUAY
Rigoberto GAUTO VIELMAN, Consejero, Encargado de Negocios a.i., Mision
Permanente, Ginebra
PEROU/PERU
Javier PRADO, Segundo Secretario, Mision Permanente, Ginebra
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PHILIPPINES
Jaime YAMBAO, charge d'affaires a.i., Mission permanents, Geneve
Pedro NAVARRO, Deputy Executive Director, Presidential Inter-Agency
Committee on Intellectual Property Rights, Department of Trade and
Industry (DTI), Manila
PORTUGAL
Jose do Espirito Santo MENEZES S. TELES, Director-Geral das
Espectaculos e das Artes, Presidencia do Conselho de Ministros, Lisboa
Joao ALMEIDA B PAIVA, Legal Advisor, Direccao-Geral dos Espectaculos e
das Artes, Presidencia do Conselho de Ministros, Lisboa
Adriano QURIROS FERREIRA, conseiller juridigue, Mission permanente,
Geneve
REPUBLIQUE DE COREE/REPUBLIC OF KOREA
Yang Sup CHUNG, Intellectual Property Attache, Permanent Mission,
Geneva
REPUBLIQUE TCHEQUE/CZECH REPUBLIC
Hana MASOPUSTOVA (Mrs.), Chief of Department, Ministry of Culture,
Prague
Jarmila KARHANOVA (Mrs.), Legal Advisor (Copyright), Ministry of
Culture, Prague
ROYAUME/UNITED KINGDOM
John Peter BRITTON, Head, Copyright Policy, Intellectual Property
Policy Directorate, The Patent Office, London
Roger KNIGHTS, Senior Examiner, Intellectual Property Policy
Directorate, The Patent Office, London
Kam Fai Peter CHEUNG, Assistant Director, Intellectual Property
Department, Government of Hong Kong, Kowloon
Flora CHENG (Mrs.), Senior Solicitor, Intellectual Property
Department, Government of Hong Kong. Kowloon
SENEGAL
Ibrahima FALL, conseiller, Mission permanente, Geneve
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SLOVENIE/SLOVENIA
Bojan PRETNAR, Director of the Intellectual Property Office, Ljubljana
SUEDE/SWEDEN
Henry OLSSON, Special Government Advisor, Ministry of Justice,
Stockholm
SUISSE/SWITZERLAND
Carlo GOVONI, chef du service juridique "droit d'auteur", Office
federal de la propriete intellectuelle (OFPI), Berne
Andreas STEBLER, chef adjoint du service juridique "droit d'auteur",
Office federal de la propriete intellectuelle (OFPI), Berne
THAILANDE/THILAND
Piroon LAISMIT, First Secretary, Permanent Mission, Geneva
Nusara KANJANAKUL (Miss), Intellectual property Analyst, Department of
Intellectual Property, Bangkok
TOGO
Pascal Kossi TSOGBE, directeur general adjoint du Bureau togolais du
droit d'auteur (BUTODRA), Lome
TRINITE ET TOBAGO/TRINIDAD AND TOBAGO
Trevor C. SPENCER, Ambassador, Permanent Representative, Permanent
Mission, Geneva
Mazina KADIR (Ms.), Deputy Registrar General, Office of the Attorney
General and Ministry of Legal Affairs, Port of Spain
TURQUIE/TURKEY
Anil CECEN, Advisor to the Minister, Ministry of Culture, Ankara
Bayram KACAR, Deputy Counsellor, Permanent Mission, Geneva
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URUGUAY
Gustavo VIGNOLI, Secretario General del Consejo de Derechos de Autor,
Ministerio de Educacion Y Cultura, Montevideo
Alejandro SCIARRA, Asesor, Camara Uruguaya del Disco, Montevideo
VENEZULE
Ricardo ANTEQUERA PARILLI, Asesor en Derecho de Autor, Ministerio de
Justicia, Caracas
ZAMBIE/ZAMBIA
Kenneth K. LESOETSA, Registrar, Copyright Administration, Ministry of
Information and Broadcasting Services, Lusaka
COMMISSION EUROPEENNE (CE)/EUROPEAN COMMISSION (EC)
Paul L. VANDOREN, Head of Unit, Directorate General for Internal
Market and Financial Services, Brussels
Jonathan L. STOODLEY, Administrator, Directorate General for Internal
Market and Financial Services, Brussels
Hanne Marie THORBOLL (Ms.), National Expert, Brussels
Keith MELLOR, Principal Administrator, Secretariat-General, Council of
the European Union, Brussels
II.ORGANISATIONS INTERGOUVERNEMENTALES/
INTERGOVERNMENTAL ORGANIZATIONS
BUREAU INTERNATIONAL DU TRAVAIL (BIT)/INTERNATIONAL LABOUR OFFICE
(ILO)
Hedva SARFATI (Mme), chef du Service des employes et travailleurs
intellectuels, Geneve
Ann HERBERT (Mme), Service des employes et travailleurs intellectuels,
Geneve
D. DEVLIN, conseiller juridique adjoint, Geneve
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ORGANISATION DES NATIONS UNIES POUR L'EDUCATION, LA SCIENCE ET LA
CULTURE (UNESCO)/UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL
ORGANIZATION (UNESO)
Salah ABADA, Chief Copyright Section, Division of Books and Copyright,
Paris
LIGUE DES ETATS ARABES (LEA)/LEAGUE OF ARAB STATES (LAS)
Talal SHUBAILAT, conseiller, charge d'affaires a.i., Geneve
Osman AL HAJJE, attache, Geneve
Salah AEID, attache, Geneve
DELEGATION PERMANENTE DE L'ORGANISATION DE L'UNITE AFRICAINE
(OUA)/PERMANENT DELEGATION OF THE ORGANIZATION OF AFRICAN UNITY (OAU)
Venant WEGE-NZOMWITA, observateur permanent adjoint, Geneve
UNION DES RADIODIFFUSIONS DES ETATS ARABES (ASBU)/ARAB STATES
BROADCASTING UNION (ASBU)
Nawaf ADWAN, directeur de recherche, Tunis
III. ORGANISATIONS NON GOUVERNMENTALES/
NON-GOVERNMENTAL ORGANIZATIONS
Aqence pour la protection des programmes (APP): Didier ADDA (membre du
Conseil executif), Paris
American Federation of Musicians of the United States and Canada (AFM)
: Arthur T. LEVINE (Copyright Counsel), Washington, D.C.
American Federation of Television and Radio Artists (AFTRA): Reed
FARRELL (Former President), Chicago; Bruce YORK (National Executive
Director), New York; Arthur T. LEVINE (Copyright Counsel), Washington,
D.C.
Asociation Arqentina de Interpretes (AADA): Luis Tomas GENTIL
(Consejero), Buenos Aires; Gustavo Maximo SAENZ PAZ (Consejero),
Buenos Aires;
Asociacion National de Interpretes, S. de I. (ANDI): Silvia PINAL
(Sra.) (Presidenta), Mexico
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Association des organisations europeennes d'artistes interpretes
(AEPO)/Association of European Performers Organisations (AEPO) : Yngve
AKERBERG (president). Stockholm; Xavier BLANC (secretaire general),
Paris
Association europeenne des radios (AER)/Association of European
Radios(AER): Bryan HARRIS (Consultant), Bruxelles
Association internationale de l'hotellerie (AIH)/International Hotel
Association (IHA): Marinus L.W. CORDESIUS (Head, Policy Department),
Woerden
Association internationale de radiodiffusion (AIR)/International
Association of Broadcasting (IAB): Andres LERENA (Permanent Member of
the Copyright Committee), Montevideo
Association international pour la promotion de l'endeignement et de la
recherche en propriete intellectuelle (ATRIP)/International
Association for the Advancement of Teaching and Research in
Intellectual Property (ATRIP): Bojan PRETNAR (Secretary of ATRIP;
Director of the Intellectual Property Protection Office of the
Republic of Slovenia), Ljubljana
Association internationale pour la protection de la propriete
industrielle (AIPPI)/International Association for the Protection of
Industrial Property (AIPPI): Joanna SCHMIDT-SZALEWSKI (Mme)
(Professeur a la Faculte de droit de l'Universite Jean Moulin), Lyon
Association litteraire et artistigue unternationale
(ALAI)/International Literary and Artistic Association (ALAI): Herman
COHEN-JEHORAM (vice-president), amsterdam
Australian copyright Council (ACC) : Anke BEINING (Ms.) (Legal
Advisor), Sydney
Bureau international des societes qerant les droits d'enregistrement
et de reproduction mecanique (BIEM)/International Bureau of Societies
Administering the Rights of Mechanical Recording and Reproduction
(BIEM): Thierry DESURMONT (president, Commission juridique, CISAC;
directeur diligue de la SACEM), Paris
Caribben Broad casting Union (CBU) : Victor FERNANDES (President),
Barbados; Leo DE LEON (Secretary General), Barbados; P.K.H. CHELTENHAM
(Attorney-at-Law), Barbados
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Chambre de commerce internationale (CCI)/International Chamber of
Commerce (ICC); John H. KRAUS (Permanent Representative), Geneva
Confederation internationale des editeurs de musique
(CIEM)/International Confederation of Music Publishers (ICMP): Jenny
VACHER-DESVERNAIS (Mme) (secretaire general), Paris; Pierre Olivier
ALLAZ (avocat), Geneve
Confederation internationale des societes d'suteurs et compositeurs
(CISAC)/International Confederation of Societies of Authors and
Composers (CISAC): Marilyn BERGMAN (Mrs ) (President CISAC, Chairman
ASCAP), New York, Thierry DESURMONT (president, Commission juridique;
directeur delegue de la SACEM), Neuilly s/Seine; Marvin BERENSON
(member, Legal and Legislative Committee; General Counsel of BMI), Now
York; Antonio DELGADO (membre, conseiller juridique), Madrid; Fred
KOENIGSBERG (Member, Legal and' , Legislative Committee; Counsel,
ASCAP), Now York; Ralph OMAN (Member, Advisor to CISAC), Washington,
D.C.; Ndene NDIAYE (conseiller), Paris; Jean-Alexis ZIEGLER
(secretaire general), Paris
Conseil francophone de la chanson (CFC): Serge PROVENCAL (directeur
general), Montreal
Conseil europeen de l'industrie de la bane magnetique (ETIC)/European
Tape Industry Council (ETIC): Wilhelmus Hendrikus ANDRIESSEN
(Chairman, Copyright Committee), Brussels
Conseil europeen des chambres de commerce americaines (ECACC)/European
Council of Ameican Chambers of Commerce (ECACC): Bryan HARRIS
(Consultant), Bruxelles
Conseil international des archives (CIA)/International Council on
Archives (ICA): Catherine SANTSCHI (Mlle) (archiviste d'Etat), Geneve
Coordination europeenne des producteurs independants
(CEPI)/Coordination of European Independent Producers (CEPI): Robert
STRASSER (Delegate), Munich
Electronic Industries Association (EIA): Barbara N. McLERNAN (Mrs.)
(Staff Vice President, Government and Legal Affairs, Consumer
Electronics Group), Washington, D.C.; Seth D. GREENSTEIN (Counsel),
Washington, D.C.
Federation ibero-latino-americaine des artintes interprestes ou
executants (FILAIE)/Ibero-Latin American Federation of Performers
(FILAIE): Luis COBOS (Presidente), Madrid; Silvia PINAL (Sra.)
Vicepresidenta), Mexico; Carlos WEISKE (Tesorero), Montevideo; Miguel
PEREZ SOLIS (Asesor Jurldico), Madrid
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Federation internationale de la video (IVF)/International Video
Federation (IVF): Martin BOULTON (Director General), Groot-Bijgaarden
Federation internationale de l'industrie phonographique
(IFPI)/International Federation of the Phonographic Industry (IFPI):
Nicholas GARNETT (Director General), London; Lewis FLACKS (Director of
Legal Affairs), London; Neil TURKEWITZ (Senior Vice-President,
International Recording Industry Association of America (RIAA),
Washington, D.C.; Arto ALASPAA (IFPI Finland), Helsinki; Norbert
THUROW (IFPI Germany), Hambourg
Federation internationale des acteurs (FIA)/International Federation
of Actors (FIA): Michael CROSBY (General Secretary), London; Eliseo
MORAN (Secretario General FIA Argentina), Buenos Aires; Bjorn HOBERG-
PETERSEN (Legal Counsel), Copenhagen; John McGUIRE (Associate National
Executive Director, Screen Actors Guild), New York; Sallie WEAVER
(Ms.) (Executive Administrator, Screen Actor Guild), Now York; Jay
David ROTH (Attorney), Burbank; Enrique MAZZA (Secretariado Gremial
AAA), Buenos Aires
Federation internationale des associations de producteurs de films
(FIAPF)/International Federation of film Producers Associations
(FIAPF) : Andre CHAUBEAU (directeur general), Paris; Nathalie
PIASKOWSKI (Mlle) (chargee de mission), Paris; William BILLICK
(General Counsel, MPA), Encino (California); Robert HADL (Counsel),
Universal City
Federation internationale des musiciens (FIM)/International Federation
of Musicians (FIM): John MORTON (President), Longfield; Raimo VIKSTROM
(Vice-President), Helsinki; Rolf DUENNWALD (Managing Director),
Hamburg; Regula BAERTSCHI (Mrs.) (General Secretary), Zurich
Federation internationale des organismes qerant les droits de
reproduction (IFRRO)/International Federation of Reproduction Rights
Organisations (IFRRO): Tarja KOSKINEN-OLSSON (Mrs.) (Chairman),
Helsinki
Groupement europeen representant les organismes de gestion collective
des droits des artistes-interpretes ou executants (ARTIS GEIE) :
Isabelle PROST (Mme) (representante permanente), Bruxelles
Information Industry Association (IIA): Morton David GOLDBERG
(Proprietary Rights Counsel), New York
Information Technology Industry Council (ITI, formerly CBEMA): Timothy
HACKMAN (Director, "Public Affairs Technology), Washington, D.C.
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Institut Max Planck de droit etranger et international en matiere de
brevets, de droit dlauteur et de la concurrence (MPI)/Max-Planck-
Institute for Foreign and International Patent, Copyright and
Competition Law (MPI) : Paul KATZENBERGER (Chief of Department),
Munich; Silke VON LEWINSKI (Ms.) (Expert), Munich
Intellectual Property Owners (IPO):- Morton David GOLDBERG (Chairman,
Copyright Committee), Now York
International Alliance of Orchestra Associations (IAOA): Anne-Marie
BALET (Mrs.) (Member), Amsterdam
Lique internationale du droit de la concurrence (LIDC)/International
League of Competition Law (LIDC): Laurence BOUTEILLER (Mme) (avocate;
assistante a l'Universite de Geneve en propriete intellectuelle),
Geneve
National Association of Broadcasters (NAB): Benjamin F.P. IVINS
(Assistant General Counsel), Washington, D.C.
National Music Publishers' Association Inc. (NMPA): Susan O. MANN
(Ms.) (Legislative Advisoe), Washington, D.C.
North American National Broadcasters Association (NANBA): Larry M.
LOEB (Chairman, Legal Committee), Ottawa
Performing Arts Employers Associations League Europe (PEARLE) : Kurt
HODIK (Legal Advisor), Vienna; Anne-Marie BALET (Mrs.) (Member),
Amsterdam
Secretariat international des syndicats des arts, des mass media et du
spectacle-Federation internationale des syndicats des travailleurs de
l'audiovisuel (ISETU/FISTAV)/International Secretariat for Arts, Mass
Media and Entertainment Trade Unions-International Federation of
Audiocisual Workers (ISETU/FISTAV): Jack GOLODNER (First Vice-
president), Washington D.C; Jim WILSON (General Secretary), Brussels
Union europeenne de radio-television (UER)/European Broadcasting Union
(EBU) : Moira BURNETT (Mlle) (conseiller juridique, Departement des
affaires juridiques), Geneve
Union Internationale des editeurs (UIE)/International Publishers
Association (IPA): J. Alexis KOUTCHOUMOW (secretaire general), Geneve
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Union de rediodiffusion Asie-Pacifique (ABU)/Asia-Pacific Broadcasting
Union (ABU): James B. THOMSON (Office solicitor of TVNZ-New Zealand;
Chairman of the ABU Working Party on Copyright Issues), Wellington;
William B. CHILDS (Broadcast Policy Consultant of FACTS-Australia;
Member of the ABU Working Party on Copyright Issues) Sydney; Linda NAI
(Mrs.) (Legal Officer of TCS Singapore; Member of the ABU Wording
Party on Copyright Issues), Singapore
V. BUREAU/OFFICERS
President/Chairman: Jukka LIEDES (Finlande/Finland)
Vice-presidents/Vice-Chairmen: Hilda RETONDO (Sra.) (Argentine/Argentina)
Mose's F. EKPO (Nigeria)
Secretaire/Secretary: Mihaly FICSOR (OMPI/WIPO)
VI. BUREAU INTERNATIONAL DE L'ORGANISATION MONDIALE DE LA
PROPRIETE INTELLECTUELLE (OMPI)/INTERNATIONAL BUREAU
OF THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO)
Arpad BOGSCH, directeur general/Director General
Mihaly FICSOR (sous-directeur general responsable pour le Secteur du
droit d'auteur/Assistant Director General responsible for the
Copyright Sector), Richard OWENS, Jorgen BLOMQVIST, Daniel GERVAIS,
Christine HUBLIN (Ms.)
[Fin de l'annexe et du document/
End of Annex and of document]
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INR/CE/111/3 Suppl.
ORIGINAL : English
DATE : February 20, 1995
WIPO
WORLD INTELLECTUAL PROPERTY ORGANIZATION
GENEVA
COMMITTEE OF EXPERTS
ON A POSSIBLE INSTRUMENT FOR THE PROTECTION OF
THE RIGHTS OF PERFORMERS AND PRODUCERS OF PHONOGRAMS
Third Session
Geneva, December 12 to 16, 1994
SUPPLEMENT TO THE REPORT
OF THE SESSION
0169N/COP/0009N
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Introduction
1. At the third session of the Committee of Experts on a Possible
Instrument for the Protection of the Rights of Performers and
Producers of Phonograms (Geneva, December 12, to 16, 1994), the
following decision was taken concerning the way the debate on the
definitions to be included in the possible instrument would be
reported : "The International Bureau will make a transcript of each
intervention and will summarize it, identifying each speaker. The
transcript will be mailed to each speaker for comments within a stated
time limit. On the basis of any comment, the summary will be edited
and the report on the definitions will be published as a supplement to
the present report" (see paragraph 29 of the report of the session
(WIPO document INR/CE/III/3)). On January 20, 1995, a. circular
letter was sent containing the transcript and summary of each
intervention, requesting comments by February 10, 1995 (Circular
Letter 1141, dated January 20, 1995). The summaries below reflect the
comments received by the International Bureau until February 28, 1995.
2. The summaries reflect only the interventions that were made
during the discussion on the definitions proposed by the International
Bureau for inclusion in the possible instrument and set forth in
paragraph 29 of the memorandum prepared for the aforementioned session
of the Committee (WIPO document INR/CE/III/2). References to the
proposed definitions, and to relevant definitions in national laws and
Directives of the European Union, were included in interventions made
either during the General Debates or when other items on the
Committee's agenda were under discussion (see, e.g., paragraphs 12,
14, 15, 18, 52 and 65 of the Report). The said interventions are
reflected in the sections of the Report which summarize the
discussions on the various items, and are not included in the
summaries below.
3. In the following, the summaries of the various interventions
appear in the order in which they were made.
summaries
4. The Delegation of Venezuela, referring to the definitions of
"broadcasting," "Communication to the public" and "public
performance," noted that various legislations, including Decision 351
of the Andean Pact, defined "communication to the public" in a broad
manner, as any act to make a work, performance or phonogram accessible
to a croup of persons, without any previous distribution of copies.
He took the view that, in the same way, the definition of
"communication to the public," in the framework of the new instrument,
should be extended to include wireless broadcasting, transmission by
any other means-digital means or means such as fibre optics-as well as
public performance.
5. The Delegation of India suggested that the proposed
definitions of "fixation" and "communication to the public" seemed
tied to a particular technology, and suggested the, relevant
definitions in its national legislation as models, which would achieve
broader coverage. It requested clarification of the definition of
"phonogram," in order to make clear that, where audio and visual
elements are synchronized in a film,, the rights in the audio portion
belong to the producer of the film, not to the producer of a
phonogram. The Delegation supported assimilating the definition of
"producer of a phonogram" to the person who takes the initiative and
responsibility for making the phonogram.
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6. In respect of the definition of "fixation," the Delegation
of South Africa supported deletion of the words "or images," "and
images" and "visible," in order to make clear that the definition did
not cover audiovisual fixations; it likewise supported deletion of
references to "images" in the definition of "broadcasting." Also in
respect of the definition of "fixation," the Delegation stated that
the phrase "sound or sounds" should be used instead of merely the
plural "sounds," to make clear that fixations of individual sounds
would be covered. In respect of the definition of "reproduction," it
stated that the phrase "in whole or in part" should not provide
performers the exclusive right of authorizing the reproduction of
insubstantial parts of phonograms; rather, the rule of substantiality
should apply. The Delegation also observed that the definitions of
"communication to the public" and "public performance" were vague, and
suggested that they might be left to national laws and court
decisions. It also stated that the definition of "communication to
the public" should include broadcasting.
7. The Delegation of Egypt stated that the definition of
"fixation" should precede that of "phonogram," because the latter is
defined as being a fixation. It stated further that the definition of
"performers" should be considered comprehensive, and thus the words
"actors, singers, musicians" should be deleted; rather, the definition
should define "performers" as It persons who act, sing, play music,
etc., and should include performers of folklore and circus and variety
artists. The Delegation supported the proposed definition of
"phonogram," including the reference to "digital. representations of
sounds," but thought that the word "performance" should be deleted
from the phrase "of a performance or of other sounds, " so that the
definition would read" 'phonogram' is the fixation of sounds or the
digital representation.......", etc. In respect of the definition of
"producer of phonograms," it supported the following formulation :
'producer of phonograms' is the individual or legal person etc. On
the definition of "publication," the Delegation observed that the
offering of copies to the public is considered the first phase of the
publication process; it suggested that the definition begin as follows
: 'publication of the phonogram' is (i) making of copies for offer
even if such copies are not made available to the public....", etc.
The Delegation approved of the definition of "reproduction," which, it
noted, was in harmony with the relevant international conventions, and
agreed in principle to the definitions (of rental" and "public
lending."
8. The Delegation of the United States of America stated that
the scope of many of the definitions would be determined by the scope
of rights to be granted to performers under the possible instrument;
in particular, it noted, references to "images" in any of the proposed
definitions should not be interpreted to include the rights of
performers in audiovisual fixations in the scope of the proposed new
instrument, since protection of' audiovisual works was covered by the
Berne Convention. The Delegation questioned whether the definition of
"communication to the public," and in particular, the reference to
"normal circle of a family and its acquaintances," was intended to
cover cable distribution into the homes of subscribers, since such
Coverage might overlap inappropriately with the kind of digital
delivery or digital performance activities under discussion in the
context of both the proposed instrument and the protocol to the Berne
Convention.
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9. The Delegation of Australia questioned whether it was necessary
or useful to use the term. "digital" in reference to sounds and
delivery systems, since refraining from use of the term would avoid
tying the provisions of the new instrument to a particular technology.
In respect of the definition of "phonogram," it noted that the phrase
"digital representations of sounds" might be viewed as covering a new
or different category of subject matter besides phonograms under
current copyright laws; for example, the fixation of synthetic sounds
by use of a computer might constitute a phonogram under the proposed
definition, even though it might not also constitute a sound recording
of a performance* The Delegation took the view that the notion of
"publication" as including digital delivery should be tied to a
requirement of reasonable availability, consistent with the definition
of "publication" in the Rome and Berne Conventions. In respect of the
definition of "reproduction," it supported application of the
criterion of substantiality and similarity in determining whether a
phonogram is a copy of another phonogram under national law and
jurisprudence, and, thus, took the view that the phrase "in whole or
in part" should be deleted. The Delegation supported a broad right of
communication to the public to subsume, or at least to complement, the
right of broadcasting, but stated that the phrase "or the digital
representation of sounds" in the definition of "communication to the
public" could be deleted, as it already appeared in the definition of
"phonogram"; for the same reason, it suggested that the words "or the
digital representations of sounds" should appear before the phrase
"fixed in a phonogram" in the definition of "public performance." It
took the view that the notion of "public" should be left to
determination at the national level, and suggested simplification of
the definition of "public performance."
10. In respect of the definitions of "fixation" and "producer of
phonograms," the Delegation of Japan supported inclusion of the
reference to fixation "of the digital representations of sounds. It
stated that digital remastering of existing fixations of sounds should
not be regarded as a production of phonograms, nor should the person
or entity carrying out such remastering be considered the producer of
a phonogram. As to the definition of "reproduction," the Delegation
accepted inclusion of the phrase "in part," but found difficulty with
the inclusion of temporary and transitory storage in electronic
format, which would, in its view, amount to the recognition of a right
to use, which was alien to copyright and neighboring rights. It
stated that such a broad definition inevitably necessitates the
inclusion of limitations on the right of reproduction along the lines
of the European Union directive on computer programs, and that the
interests of owners of rights could be otherwise ensured by the grant
of rights to such acts as permanent reproduction, transmission to the
public, and public performance; thus, it took the view that the
definition of "reproduction" should be left to national legislation,
following the example of the Berne Convention. In respect of the
definitions of "broadcasting" and "communication to the public," the
Delegation referred to the right of wire transmission in its national
law, which covered both cable transmissions intended for simultaneous
reception by the public and on-demand transmissions not so intended;
rather than providing separate definitions of "broadcasting" and
"communication to the public," it suggested, broadcasting might be
defined in terms of both wire and wireless means, as a subcategory of
"transmission to the public."
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11. As to the definitions of "fixation" and "phonogram," the
Delegation of the United Kingdom stated that the phrase "digital
representations of sounds" might overly broaden the notion of a
phonogram to include, e.g., random computer-generated sounds. It
supported inclusion of the word "images" in the definition of
"fixation," which would then apply to audiovisual fixations. On the
definition of "reproduction," it stated that reproduction should be
considered as such regardless of the duration of storage, subject to
the criterion of substantiality. The Delegation accepted separation
of the definitions of "broadcasting," "communication to the public"
and "public performance," but stated that nothing in the now
instrument should prevent national legislators from adopting a broad
concept of communication to the public including broadcasting as a
subset of that right. Likewise, it stated that definition of the term
"public" should probably be determined at the national level,
particularly by jurisprudence, but the matter should be debated
further. The Delegation questioned the need for inclusion of a
definition of "publication," which was already defined in
international law. On the definition of "rental," it supported a
definition which referred. only to transfer of possession, not to
transfer of ownership as well, and noted that the only acceptable
purpose of including a definition of "public lending" would be to make
certain of exclusion of the right of public lending from the coverage
of the instrument.
12. The Delegation of France noted that new technologies would
not necessarily differ in all respects from old ones. It associated
itself with other Delegations that had supported the inclusion of
audiovisual performers in the new instrument, notably as regards the
definition of "fixation." Such definition should also take into
account sounds produced by a computer, and reflect the financial, as
well as technical, role of the producer of fixations. The definitions
of both "fixation" and "reproduction" should not lead to the
protection, by a neighboring right, of single sounds that would not be
protected by copyright. The Delegation added that it considered
soundtracks of films as phonograms. Concerning the definition of
"reproduction," it supported the inclusion of all forms of
reproduction. With respect to the rights of broadcasting,
communication to the public and public performance, it favored as
broad a definition of "public" as possible and, conversely, a
restricted definition of the "family circle." Finally, the notion of
"rental" should be clarified to cover all forms of use that are of
limited duration and for commercial purposes.
13. In respect of the definition of "performers," the Delegation
of Ghana took the view that, while performers of expressions of
folklore should certainly be protected under the new instrument, it
should be made clear that such expressions could be considered
literary and artistic works from the moment they were documented; it
referred to extensive documentation of expressions of folklore in its
country, and other countries, under the copyright laws of which were
considered literary and artistic works.
14. The Delegation of Finland stated that many protected
materials can embody both authors' rights and related rights, and that
the relevant definitions should have the same contents, particularly
in respect of digital distribution. Thus, it took the view that the
content of, and relationship between, such definitions as
"broadcasting, "communication to the public," and public performance,"
on the one hand, and "public" and "publication," on the other, were
dependent or solutions adopted concerning digital distribution in the
field of authors' rights. On the definition of "reproduction," the
Delegation expressed hesitation about extending the right of
reproduction to parts of phonograms, at least without further
qualification.
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15. The Delegation of Argentina referred to the definitions of
"communication to the public," "fixation" and "phonogram." As to the
definition of Communication to the public," she shared the reticence
of the Delegation of the United States to include a reference to the
"normal circle of the family and its closest social acquaintances,"
considering that such individuals are indeed the main recipients of
"on demand" digital communication's. The Delegation agreed with the
Delegations of Venezuela and India for the proposed definitions of
"communication to the public," highlighting that the only difference
between the two is that the definition proposed by the Delegation of
India specifies that it is not required that " any member of the
public actually sees* hears or otherwise enjoys the work that is
communicated to the public," to consider that it, was made available.
The Delegation supported the definition of "fixation" proposed in the
memorandum of the International Bureau, and the definition of
"phonogram" proposed by the Delegation of India. The Delegation added
that soundtracks of films should not be considered as phonograms.
16. In connection with the notion of "public" in the proposed
definitions of communication to the public" and "public performance,
the Delegation of Canada stated that., in their present formulation,
these definitions would apply to the use of phonograms in classrooms,
public libraries and places of public worship. It noted that uses in
classrooms and places of worship were not covered under the law of its
country, and stressed the importance of exceptions to rights in
reference to the proposed definitions.
17. The Delegation of Sweden stated that the sound part of an
audiovisual fixation should be considered a phonogram, that the words
"in part" in the definition of "reproduction" were significant and
should be included, and that; the definition of "communication to the
public" was too complicated and should be left to national
jurisprudence. It noted that a difference exists between the notions
of "published work" under the Berne Convention and "publication" under
the Rome Convention; in the former case, the consent of the author was
required, while in the latter case (and under the proposed
definition), offering a copy of a phonogram to the public in a
sufficient quantity, with or without the permission of the producer of
the phonogram, is an act of publication. Thus, the Delegation
questioned whether the proposed definition was the desirable one.
18. The Delegation of Spain supported the delegations that
proposed the inclusion of audiovisual performers in the framework of
the new instrument. The Delegation accepted inclusion of those who
performed works of folklore in the category of performers, but
expressed doubt as to variety and circus artists, considering that it
should be a matter for national legislators. The Delegation agreed
with inclusion of "digital representation of sounds" in the definition
of "producer of phonogram." Referring to the definition of "producer
of phonogram," the Delegation proposed the introduction of two basic
but missing notions, namely, initiative and responsibility. The
Delegation expressed doubt concerning extension of the concept of
publication to electronic retrieval systems. As far as the definition
of "reproduction" was concerned, the Delegation found the expression
"in whole or in part" inappropriate. Finally, the Delegation
associated itself with the Delegations of Venezuela, India and
Argentina that were in favor of a broader notion of communication to
the public," including broadcasting, transmission by wire and public
performance.
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19. The Delegation of Italy felt that definitions should apply
both to new and old technology, and be sufficiently broad to cover the
audiovisual field. Hence, definitions of "rental," "reproduction,"
"publication" and "public Hence, definitions of lending" should not
apply only to phonograms. Existing definitions, including those of
the Rome Convention, could be extended to apply to digital
transmissions. Finally, the Delegation supported broad definitions of
communication to the public," "broadcasting" and "public performance."
20. The Delegation of Belgium expressed doubt concerning the
reference to "digital representations of sounds and images" contained
in several definitions, which could limit the scope and possibilities
of evolution of the new instrument. On a different point, the
definitions of "publication," "reproduction" "rental" and "public
lending" should cover also the audiovisual sector. As regards the
definition of "phonogram," the Delegation believed that the reference
to "digital representations of sounds" could lead to the protection of
certain data bases as phonograms and overlapping rights therein. The
reference to "in whole or in part" in the definition of "reproduction"
should be replaced with one of substantiality, which varied from case
to case. Single sounds and images should not be protected, as
neighboring rights should not be broader than the rights of authors.
The definitions of "communication to the public," "broadcasting" and
"public performance" could be replaced by a broad notion of
communication to the public, leaving it up to courts in each country
to interpret what constitutes the "public."
21. The Delegation of China expressed its support for the
proposed definitions, and suggested that the proposed definitions of
"communication to the public" and "public performance" be combined.
22. The Delegation of Germany supported those delegations that
favored the extension of the new instrument to the audiovisual sector.
It also suggested replacing the notions of "communication to the
public," "broadcasting" and "public performance" with a broader notion
of "communication to the public," without prejudice to the rights
pertaining to each form of exploitation. Broadcasting should be
treated separately in certain respects and, from this viewpoint, cable
transmission should be considered as broadcasting as long as programs
retransmitted were intended for general reception and not determined
by individual request.
23. The Delegation of Israel supported the premise that the
definition of "performers" should include performers in respect of
audiovisual fixations. It stated that the definitions should be
phrased in general terms, so that they could adapt flexibly to
changing circumstances.
24. The Delegation of Ireland supported inclusion of the rights
of performers in respect of audiovisual fixations in the coverage of
the new instrument. On the definition of "reproduction," it stated
that the phrase "in whole or in part" should be read "in whole or in
substantial part," to reflect the principle of substantiality. The
Delegation said that the term "public" should not be defined.
25. The Delegation of Hungary favored changing the order of the
definitions, so that the definition of "fixation" would come before
the definition of "phonogram." It also supported the view that the
definition of "performers" should include performers whose
performances are included in audiovisual fixations. The Delegation
stated that the definition of "producer of phonograms" should include
persons and entities who directly control firs fixation.
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26. The observer from the International Labour Organization
(ILO) supported the inclusion of expressions of folklore and variety
and circus artists in the definition of "performers." She also
Strongly supported the view that the definition should cover
performers in respect of audiovisual fixations.
27. An observer from the United Nations Educational, Scientific
and Cultural Organization (Unesco) felt that the expression "digital
representations" was inappropriate because, in the field of copyright,
representation was a form of exploitation of works. He suggested
replacing it with "the incorporation of sounds or images in analog,
digital or other format, from which sounds...". Additionally, he
favored a broad concept of communication to the public covering, inter
alia, broadcasting, satellite transmissions, cable distribution and
electronic communication networks.
28. An observer from the Ibero-Latin-American Federation of
Performers (FILAIE) supported the preparation of a discussion paper by
the International Bureau leading to the inclusion, on the agenda for
the next session of the Committee, of the audiovisual sector, given
the consensus among governmental delegations which the observer
believed to exist. As for the definition of to phonogram," he stated
that videograms should be included, so that Article 12 of the Rome
Convention, which provides for a remuneration for the public
communication of a phonogram, would include performers of music
videos. The Federation favored retaining the expression "in whole or
in part" in the definition of "reproduction." The Federation supported
elimination, from the definition of "communication to the public," of
elements relating to circumstances and place, such as the concept of
"normal circle of a family and its closest social acquaintances" which
were consequential to the notion of "public.
29. The observer from the international Literary and Artistic
Association (ALAI) stated that the definition of "Publication" should
not extend to digital delivery to the public of sounds fixed in a
phonogram, because no tangible copies as such were transmitted by
electronic delivery, which was an immaterial transmission of sounds;
rather, he said, digital delivery could be considered communication to
the public or reproduction, but not "publication" in the sense of
Article 3(3) of the Berne Convention, which is explicitly restricted
to the distribution of tangible copies. The observer cautioned, in
general terms, against the muddying of language and concepts. In
respect of the definition of "reproduction," he stated that the
question of whether ephemeral copying should be within the scope of
the right of reproduction needed careful further study. Finally, he
stated that the definition of communication to the public" should be
amended to absorb the definitions of "broadcasting" and "public
performance."
30. An observer from the International Federation of Musicians
(FIM) noted that the purpose of the possible new instrument was to
deal with the technological revolution brought about by digital
technology, and he cautioned against overly relying on existing
provisions in national laws, in particular, definitions, in attempting
to create a new international legal regime of protection to take
account of that revolution. The observer noted that the use of small
parts of performances is now an economic use, and stated that, in
general terms, the definition of "performer" should be framed broadly.
In specific terms, he stated that the definition should include
musical performances, that are not "of a work," for example, the
Sampling of sounds made by instruments, which have well-demonstrated
commercial uses. He
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referred to the definition of "performance" in the United Kingdom
legislation, i.e., "a dramatic performance which includes dance ax-id
mime, a musical performance, a reading or recitation of a literary
work, or a performance of a variety act or any similar presentation,"
" as a possible reference for the definition of "performer" in the new
instrument. The observer stated that the definition of "phonogram,"
when read with the proposed definition of "Performer," could have the
result that the producer of a phonogram would acquire rights in a non-
work musical performance, whereas the performer would have no rights
at all. He stated that the sound part of an audiovisual work or
fixation should be considered a phonogram, since it was nearly always
recorded separately from the visual recording, whether intended for
use as part of a music video or as background music in a film; under
the second part of the definition of "phonogram," he noted, phonograms
subsequently included into music videos or television programs, as
well as film soundtracks subsequently published as phonograms, would
lose their status as phonograms including, for example, their
eligibility for application of what are known as "Article 12 rights."
The observer noted that such a problem would not arise under the text
proposed by the European Commission and annexed to the preparatory
memorandum, under which rights of performers are attached to the
fixation of the performance, regardless of whether it is made for, or
subsequently included in, a phonogram or an audiovisual work. In
respect of the definition of "fixation," he stated that the new
instrument should provide fixation rights in audiovisual works, else
it would not be an improvement the Rome Convention, which includes
such rights. He suggested the inclusion, in the definition of
fixation, of wording included in the definition of "reproduction,"
such as "regardless of the means by which, and the medium in which,
(the fixation) is made." In respect of the definition of "producer of
phonograms," the observer noted that a phonogram may now consist of
many previously fixed elements, including performances, and that the
term of protection of previously-fixed performances included in
phonograms "first fixed" by a particular producers should not
necessarily be considered to be coextensive. In respect of the
definition of "reproduction," he expressed a preference for a
definition, separately stated in respect of performers than in respect
of producers of phonograms, which began with the wording "the
reproduction of a fixed performance is the utilization of that
performance, in whole or in part, in a further fixation...." He stated
that the language "in whole or in part" should be included, to give
guidance to national legislators and courts on the question of
substantiality and similarity. The observer favored inclusion of a
general right of "communication to the public," however formulated,
possibly with sub-categories such as "broadcasting," although he took
the view that the delineation of such sub-categories would be
difficult. On the definition of "broadcasting," he doubted that the
expression "equipment normally available to the public" was
sufficiently precise. In general, he stated that the definitions
should be related closely to the need for exclusive rights. In
particular, he doubted whether digital delivery or distribution could
be assimilated to broadcasting, because the notions of private
copying, and equitable remuneration, that have traditionally been
associated with the medium of broadcasting, might not be relevant to
the digital domain. Finally, the observer stated that the notion of
"public performance," whether under an umbrella or expressed
independently, should apply to fixations of performances as, well as
to phonograms.
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31. An observer from the Max-Planck Institute stated that the
Committee should consider whether the proposed definition of "producer
of phonograms" would accord to phonogram producers additional
protection for digital remastering of existing analog recordings; if
so, she noted, an extension of the 50 year term of protection for
sound recordings provided in the TRIPS Agreement might result. On the
definition of "reproduction," the observer questioned whether the
right of reproduction should apply to temporary storage in electronic
format, stating that the leading criteria should be economical rather
than technical if the reason that, temporary storage would be
considered a reproduction were to compensate for lack of protection in
respect of another form of use, it might be more appropriate to
provide for an appropriate protection in respect of that use rather
than in respect of temporary storage. Finally, she noted that the
reproduction "in part" of a phonogram might cover, according to the
proposed definition of "phonogram," even the reproduction of one
single sound, and that the need to protect even the smallest parts of
phonograms did not yet seem to have been shown. Reproduction of parts
of performances was a different matter, according to the observer,
because what was taken was part of the interpretation and specific
stylistic elements.
32. An observer from the International Federation of the
Phonographic Industries (IFPI) stated that the phrase "digital
representations of sounds" in the definition of "phonogram" was a
useful clarifications, although not strictly necessary, because
fixations of sounds have almost always been "representations" rather
than the "sounds" themselves. He supported further discussion on the
question whether audible sounds created by digital codes and fixed in
a material form could constitute phonograms, expressing the view that
a phonogram could be created in such a way, but stating that the
essential question was In respect of the nature of the creative act.
In respect of the second, exclusionary clause of the definition of
"phonogram," the observer stated that the phrase "digital
representation of sounds and images" might have gone too far, since
many phonograms contain encoded information of a graphic or textual
nature. He stated that the definition of "fixation" was too narrow,
and proposed that a fixation should exist whenever there is an
embodiment of a work or sounds in any form which is sufficiently
stable that the work or sounds embodied in it can be made perceptible,
with or without an appropriate machine or device, but in addition to
being made perceptible, that it is sufficiently stable so that it may
be susceptible of further communication, or of further reproduction.
The observer also noted that the concept of fixation was important in
respect of the points of attachment for protection under the new
instrument, and that, since the adoption of the Rome Convention, it
was desirable to take into account that it had become typical to
produce phonograms in different locations. In respect of the phrase
"in whole or in part" in the definition of "reproduction," he favored
application of the tests of substantiality and similarity under
national law and jurisprudence, including exceptions and limitations,
but emphasized that the important element was that substantiality
should be regarded in quantitative, not exclusively qualitative terms,
i.e., whether a phonogram would be protected against the unauthorized
reproduction of enough of its contents to either substitute
commercially for the copied phonogram, or otherwise prejudice actual
or potential markets for the phonogram and the performances embodied
therein. The observer favored retention of the clause "regardless of
the duration of the storage," since even a brief reproduction could be
the essential step in a subsequent utilization. Finally, he observed
that the definition of "communication to the public" was overly
complicated and in need of simplification.
INR/CE/III/3 Suppl.
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33. An observer from the International Association of
Broadcasting (IAB) underscored two points; first, the protection of
audiovisual performers created special and distinct problems which
should be the object of careful separate study, including the
preparation of a discussion paper by the international Bureau preceded
by consultation, in light of the lack of consensus on this question;
second, that the terms of reference of the Committee should include
the protection of the rights of broadcasting organizations.
34. An observer from the "Groupement europeen representant les
organismes degestion collective des droits des artistes-interpretes on
executants (ARTIS GEIE)" supported the inclusion of audiovisual
performers in the new instrument. With respect to the definition of
"publication," she felt that it should not cover digital
transmissions, which were an act of communication to the public thus
giving rise, as a special form of communication to the public, to an
exclusive right to authorize or prohibit for each territory.
35. An observer from the International Federation of Film
Producers Associations (FIAPF) stated that his organization, while not
objecting to a definition of "fixation" that would cover also
audiovisual fixations (of live performances), was opposed to a general
application of the new instrument to the audiovisual field. He thus
supported the exclusion contained in the last sentence of the
definition of "phonogram," adding that a film is not a phonogram to
which images had been added. Musical and audiovisual works are very
different, one based on a single media, the other on multimedia.
Hence, he said, should it be decided to instrument, it should be done
in including definitions, should be phonograms would simply not do. of
a musician or stage performer performance of an actor is not cover
also the audiovisual sector in the new a separate section, and new
notions, applied. An extension of those applicable to He then
explained that, while the performance is limited in both time and
space, the He could do the same scene several times; the best takes
would then be edited, assembled and transformed by others. Moreover,
whereas the same phonogram could be distributed worldwide without any
changes, a film had to be modified, for example by dubbing. Finally,
the performance of the actor could be manipulated by computer or
combined with special effects.
36. An observer from the European Broadcasting Union (EBU)
stated that the proposed definitions should exclude any indication
that audiovisual fixations would be covered under the new instrument.
In respect of the definition of performer" she cautioned against
enlarging the definition in the Rome Convention, and in respect of the
definition of "reproduction," she called for careful examination of
the "in whole or in part" language and the question of whether
temporary storage of a phonogram should be considered a reproduction
of the phonogram. The observer stated that the meaning of the phrase
"digital. representations of images and sounds" should be examined in
connection with a number of proposed definitions. On the definitions
of "communication to the public," "broadcasting" and "public
performance," and in respect of on-demand delivery of phonograms, she
stated that it should be made clear which acts are covered by existing
rights and which are not. In respect of the definition of
"broadcasting," she observed that several aspects were unclear. For
example, the definition repeated the mistake of the English text of
the Rome Convention by using the phrase "for public reception," which
implied reception in a cafe or theater, rather than "for reception by
the general public." The observer stated that the reference to
satellite transmission was unclear, as it seemed
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intended to refer to the distinction between mere signal transport and
broadcasting but she preferred the formulation of the European Union
directive, which stated that transmission by fixed service satellite
under, conditions which, as far as individual direct reception by the
general public is concerned, are comparable to those prevailing in the
case of direct broadcasting satellites, would be treated as
broadcasting. In respect of the definitions of "communication to the
public" and "public performance," she queried whether the definitions
sought to define "communication" or, rather, of public," and noted
that the definition of "communication to the public" seemed broad
enough to cover cable distribution of broadcast signals, as well as
on-demand delivery. She also noted that it was unclear how the
respective rights would apply in relation to each other, in quite
different economic contexts.
37. In respect of the definition of "fixation," an observer from
the Association of European Performers Organisations (AEPO) noted that
the definition was not linked to works, and thus corresponded with the
definitions of "phonogram" and "producer of phonograms;" however, the
definition of "fixation" did not correspond to the definition of
"performer," which was linked to the performance of literary and
artistic works. He urged broadening of the definition of "performer"
to include the use of previously-fixed performances for the creation
and production. of literary and artistic works; likewise, he supported
inclusion of an "adaptation" right for performers. The observer
suggested deletion from the definition of "phonogram" of the reference
to audiovisual, fixations, to make clear that any fixation of sounds
would be considered a phonogram, whether or not it was included in an
audiovisual fixation. In respect of the definition of "reproduction,"
he supported retention of the phrase "in whole or in part," to make
clear that copying of parts of phonograms or fixed performances would
be considered acts of reproduction. He stated that the definitions of
"communication to the public" and "broadcasting" should be as clear as
possible; he added that digital delivery should not be considered a
publication but could be linked to both rights of reproduction and
communication to the public, the latter of which might include
broadcasting and cable retransmission. The observer supported
exclusive rights for performers, who would, he said, be capable of
administering such rights.
38. An observer from the National Association of Broadcasters
(NAB) noted with approval the presence of representatives of numerous
broadcasting organizations. He pointed out that proposed legislation
in the United States, which would have created a public performance
right in digital broadcasts of phonograms, had not been voted upon.
He expressed the opinion that any such legislation subsequently
considered by the U.S. Congress would exclude both digital and analog
broadcasting entirely. He noted that many other countries did not
recognize, performance rights in sound recordings as applied to
broadcasters, and expressed the hope the Committee would take this
into account in its deliberations. The observer took the view that
the definition of "communication to the public" should exclude
traditional broadcasting, and that national legislators should have
the flexibility, under the new instrument, to exempt broadcasting from
the coverage of rights, such as communication to the public of
phonograms in the form of interactive on-demand services, that might
pose a threat to the retail sale of phonograms. He stated that the
proposed definition of "broadcasting," which closely followed that in
the Rome Convention and would appear to require that traditional
commercial radio stations be treated in the same way as wireless on-
demand
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distribution systems, did not seem to allow such flexibility for
national legislators. Likewise, he noted, cable retransmission of a
commercial radio broadcast, which posed no threat to sales of copies
of phonograms, would fall within the definition of "communication to
the public." The observer stated that a distinction should be not be
made between wire and wireless transmission, but, rather, between
traditional broadcast services available to the general public on the
one hand, and on-demand, interactive digital delivery systems on the
other. If broadcasting were to be included in the definition of
"communication to the public," he stated, it should be a clearly-
identifiable sub-category., Finally, the observer noted that the
definition of "communication to the public" included the phrase "of a
performance or a phonogram," while the definition of "broadcasting"
did not include such language; he suggested that the phrase should
also appear in the latter definition.
39. An observer from the International Confederation of
Societies of Authors and Composers (CISAC) felt that the definition of
"fixation" had to exclude the possibility that a digital fixation of
an existing phonogram might constitute a new phonogram, as this would
extend the duration of protection in an unjustified manner. He added
that CISAC considered, like many previous speakers, that separate
exploitation of the soundtrack of a film constitutes a phonogram. As
regards the definition of "publication," CISAC agreed that digital
transmission is a form of communication to the public and, more
precisely, a form of public performance. There was thus no need to
refer to the notion of publication in this context. The definition of
"reproduction" should make use of the concept of substantiality and,
as regards the reproduction of single sounds, the observer reserved
his position. The definition of "rental" should refer to "for profit"
rental, and, conversely, use the expression "not for profit" to define
public lending. Finally, the observer agreed with those who favor a
broad definition of "public" at the international level to be used in
connection with the definitions of "communication to the public,"
"broadcasting" and "public performance"; leaving it up to national
legislators would lead to differences among the levels of protection
in various countries, to the detriment of authors and other rights
holders. The fundamental criterion in this regard should be that of
"family circle," without a reference to the "closest social
acquaintances," since the latter group, if they really are close
acquaintances, would form part of the family circle.
40. Restating its support for inclusion of the rights of
performers in audiovisual fixations in the new instrument,
particularly in light of the emerging Global Information
Infrastructure, an observer from the International Federation of
Actors (FIA) noted that the artificiality of a distinction between the
rights of performers in, respect of phonograms, on the one hand, and
in respect of audiovisual fixations, on the other, was reflected in
the definitions, in particular those of "phonogram" and
"reproduction." In particular, he stated, the second, exclusionary
part of the definition of "phonogram" would not be necessary if the
instrument covered both audio and audiovisual fixations; as to
"reproduction," the problem of using a test of substantiality in
determining how much, or what kind, of copying constituted an act of
reproduction, was equally significant to audiovisual performers as to
audio performers. As to the definitions of "communication to the
public" and "broadcasting," the observer took the view that
broadcasting should be included as a sub-category of communication to
the public, since that combination was well-understood under the Rome
Convention.
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page 14
41. An observer from the "Conseil francophone de la chanson
(CFC)" explained that his organization is on international non-
governmental organization operating in more than 20 countries in
Africa Europe and the Americas, which represents professional
associations in the field of the creation, production and diffusion of
music in the Francophone world. The Council worked towards the
adoption and enforcement of laws and regulations protecting the rights
of creators and other rights, holders and took an active part in the
training of creators, performers and producers. As regards the
memorandum, the observer believed that definitions contained in the
new instrument should not be limited to a particular technology, so as
not to thereby limit the scope of possible new rights. He welcomed
the inclusion of expressions of folklore and supported the extension
of the new instrument to cover the audiovisual sector. Finally, he
said, the definition of "reproduction" should apply also to partial
reproduction of phonograms.
42. In respect of the definitions of "fixation" and
"reproduction," an observer from the Information Industry Association
(IIA) stated that, as one of the bases for recognition of a digital
transmission right is the right of reproduction, it was important to
establish that there could be a "reproduction" even if the storage is
only for a transitory period, as is indicated in Article 4 of the
European Union directive on the protection of computer programs. In
order to establish that the definition of "reproduction" was a sub-
category of the definition of "fixation"--since references to fixation
in the former of necessity referred to the latter--he suggested that
the definition of "fixation" be modified by adding the parenthetical
phrase "(regardless of whether its duration is transitory)" following
the word 'embodiment' in the said definition, and that the last clause
of the definition of "reproduction" (beginning "regardless...." be
replaced by the phrase "regardless of whether the duration of the copy
or storage is transitory." In respect of the definition of
"publication the observer noted that, while the Berne Convention ties
the notion of publication to the presence of tangible copies, neither
the Rome nor, Geneva Conventions impose such a linkage; likewise, he
noted, the Berne Convention does not require the manifestation of
tangible copies in order for owners of copyright to exercise rights of
public performance, communication to the public, or broadcasting and
rebroadcasting. Acknowledging that the definition of publication"
continued to be significant (citing its presence in, inter alia, the
recent Decision 351 of the Andean Pact), he suggested that the
important factor should be a notion of "public dissemination," rather
than publication," which would also constitute a point of attachment
for protection of the rights established under the new instrument.
Such public dissemination might include, according to the observer,
the traditional publication of tangible permanent copies, or
dissemination in copies of a transitory duration. In respect of the
language "in whole or in part" in the definition of "reproduction," he
noted that the language seemed desirable in the specific context of
that definition, but emphasized that its effect on other definitions,
e.g., "publication, broadcasting," "communication to the public," and
"public performance," should also be examined. In respect of the
notion of "public," the observer took the view that it should be
defined separately of the definitions in which it figured, such as
"communication to the public" and "public performance," "publication"
and "broadcasting." International guidance on the meaning of "public"
was quite important, he stated, and the notion should be broad, in
order to reach the ever expanding ways that protected materials reach
the public. The observer said that use of the term "digital," and
indeed, all terminology in the definitions, must be
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page 15
scrutinized to avoid binding the new instrument to the technology of
the present, which rapidly becomes that of the past. Finally, he
supported inclusion of a definition of "adaptation."
43. An observer from the Asia-Pacific Broadcasting Union (ABU)
expressed his support for restricting the definition of "performer,"
in particular to avoid any indication that the definition included
performers in respect of audiovisual fixations, and stated that the
definition of "performance" in the legislation of the United Kingdom
might serve as a model. Likewise, in respect of the definition of
"fixation," he supported deletion of references to "images." The
observer opposed any indication, in the definition of "fixation," that
the remastering of analog phonograms give rise to new rights in
particular in respect of phonograms in the public domain. He stated
that the definition of "reproduction" should include the requirement
of substantiality, based on the test of the quality of the excerpt
copied, rather than the quantity. The observer took the view that a
distinction should be made between temporary and permanent copies, as
in the case of ephemeral copying under Article 2 bis of the Berne
onvention, to facilitate incidental reproduction.
44. An observer from the Caribbean Broadcasting Union (CBU)
supported inclusion of expressitions of folklore in the definition of
"Performer," but opposed the notion that Such expressions were an
afterthought to creative expression in the form of literary and
artistic works. He expressed support for generalized improvement of
the rights of performers under the new instrument, but questioned
whether the rights of producers of phonograms should be subject to the
same improvement. In respect of the definition of "broadcasting," the
observer noted that of all other means of communication the public
domain, only broadcasting has clearly-articulated public service
responsibilities, and that is the only medium of communication where
no fee paid by the general public for receipt of the communication.
In respect of use of the term "digital," he stated that digital
technology is merely the newest means for making protected material
available to the public, and that there was no justification for the
creation of new rights in respect of digital delivery or
transmissions.
(End of document]
131
WIPO INR/CE/IV/3
ORIGINAL : English
DATE : May 3, 1995
WORLD INTELLECTUAL PROPERTY ORGANIZATION
Geneva
COMMITTEE OF EXPERTS
ON A POSSIBLE INSTRUMENT FOR THE PROTECTION OF
THE RIGHTS OF PERFORMERS AND PRODUCERS OF PHONOGRAMS
Fourth Session
Geneva, September 4 to 8 and 12, 1995
QUESTIONS OF THE RIGHTS OF PERFORMERS
IN AUDIOVISUAL FIXATIONS OF THEIR PERFORMANCES
Discussion paper prepared by the International Bureau of WIPO
029ON/COP/0027N
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page 2
INTRODUCTION AND BACKGROUND
1. At the conclusion of the third session of the Committee of
Experts on a Possible Instrument for the Protection of the Rights of
Performers and Producers of Phonograms (hereafter "the Committee")
(Geneva, December 12 to 16, 1994), the Committee decided that the
preparatory documents for the next session of the Committee (that is,
the one for which the present paper has been prepared) will consist
of, inter alia, a discussion paper to be prepared by the International
Bureau on the questions of the rights of performers in audiovisual
fixations of their performances (document INR/CE/III/3, paragraph
93(iv)). For an appropriate presentation of the context and the
background of the Committee's decision, it seems necessary to review
the relevant aspects of the work, within both this Committee and the
Committee of Experts on a Possible Protocol to the Berne Convention.
2. The Committee of Experts on the Protocol was set up in
keeping with the program of WIPO adopted by the Assembly of the Berne
Union for the 1990-91 biennium (see documents AB/XX/2, Annex A, item
PRG.02(2) and AB/XX/20, paragraphs 152 and 199). The program item
establishing the terms of reference of the Committee on the Protocol
stated that "the Protocol would be mainly destined to clarify the
existing, or establish new, international norms where, under the
present text of the Berne Convention, doubts may exist as to the
extent to which that Convention applies" (document AB/XX/2, Annex A,
item PRG.02(2)).
3. In the memorandum prepared for the first session of the
Committee of Experts on the Protocol (document BCP/CE/1/2, paragraphs
56 to 70), it was proposed that provisions on the rights of producers
of phonograms be included in the Protocol. While there was broad
support for improvements in the level of protection of the rights of
such producers, most delegations and observers took the view that
phonograms were not appropriate subject matter for a Protocol to the
Berne Convention (document BCP/CE/I/4, paragraph 110). It was also
recognized that Improvements in the rights of producers of phonograms
could not be effectively discussed or achieved without also discussing
the rights of performers whose performances are included in
phonograms. Consequently, the terms of reference mentioned in the
preceding paragraph were modified by the Assembly of the Berne Union
in September 1992; the Assembly decided that a separate committee of
experts should be established to prepare a possible new instrument on
the protection of the rights of performers and producers of phonograms
(hereafter referred to as the "New Instrument"), and, in establishing
the terms of reference, that the said Committee would "discuss all
questions concerning the effective international protection of the
rights of performers and producers of phonograms" (document
B/A/XIII/2, paragraph 22).
4. Concerning the inclusion of the rights of performers in the
terms of reference, the International Bureau noted, in its memorandum
for the first session of the Committee, that there were two possible
interpretation$ of the terms of reference of the Committee. The first
possible interpretation was that the rights of performers should only
be discussed in respect of the fixation of their performance in
phonograms, excluding from consideration the rights of performers in
respect of audiovisual fixations of their Performances (given that the
reason for including the rights of performers in the terms of
reference in the first place was that the Committee of Experts on the
Protocol opposed inclusion of phonograms in the Protocol).
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INR/CE/IV/ 3
page 4
distribution; thus, it is not sufficient to grant performers-only
copy-related rights. Performers rights in audiovisual fixations have
been included in some national laws for a number of years, and are now
part of the Council Directive of the European Union on rental and
lending. Moreover, experience has shown that substantially all
practical problems concerning exercise of rights in audiovisual
fixations can be resolved by means of collective administration. The
means of exploitation of audiovisual fixations has changed
dramatically through the development of new technologies such as
satellite and cable services, videocassettes, pay television and
digital delivery, and it is appropriate that performers have the right
to negotiate appropriate payment for all uses of their performances,
preferably on the basis of exclusive rights. It is true that rights
to payment for performers are included in collective or individual
agreements in numerous countries, but such agreements are no
substitute for statutory rights, because their effectiveness in
protecting the interests of performers depends on the negotiating
strength of the representative organizations; further, provisions in
collective or individual agreements which restrict the uses to be made
of fixations are only enforceable against a contracting party, not
against third parties.
8. The arguments put forward against the inclusion of the
rights of performers in audiovisual fixations in the new instrument
were as follows: As a general principle, the rights of performers
should not be superior to, or interfere with the protection of, the
rights of authors. The distinction between the rights of performers
in respect of audio and audiovisual recordings should be maintained,
because the legal, economic and social conditions of the two
industries involved were not the same; different financing, production
and exploitation models applied. Likewise, the status and conditions
of employment of performers working within the audio field was
completely different from the status and work conditions of performers
in the audiovisual field, and any attempt to assimilate the two types
of performers would weaken the audiovisual industry, where control
over the exploitation of rights was already difficult because some
national laws deem that audiovisual fixations lack the requisite
originality to be considered works protected under the Berne
Convention. Any assimilation of the rights of audio and audiovisual
performers would concern the relations between employers and
employees, which is not a proper subject for an international
instrument dealing with intellectual property rights.
9. It is to be emphasized that the purpose of the present
discussion paper is to provide a frame of reference for the committee
is discussions (hence its title, which is different from those of the
previous documents prepared for the Committee : "discussion paper").
Nothing in the paper is to be construed as a "proposal" either in
favor of or opposing, the inclusion of provisions on the protection of
the rights of performers in audiovisual fixations in the New
Instrument. The paper provides information on provisions on the
protection of performers, rights under the Rome Convention and under
the Agreement on the Trade-Related Aspects of Intellectual Property
Rights (TRIPS), where relevant. It reviews the protection of
performers' rights under national laws and other legally-binding
instruments,such as the directives of the European Union, and it also
outlines, based on the information available to the International
Bureau, relevant contractual practice.
135
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The second possible interpretation was that the rights of
performers were mentioned without any restriction or qualification in
the terms of reference of the new Committee, which meant that it had
the competence to examine all questions concerning the rights of
performers, including irk respect of audiovisual fixation (document
INR/CE/I/2, paragraphs 8 and 9).
5. At the conclusion of the general debate during the first
session of the Committee, which took place in Geneva in June-July
1993, the Chairman stated that there was consensus in favor of the
second of the aforementioned interpretations, that is, that "nothing
in the terms of reference precluded a discussion of the question of
possible provisions on-the rights of performers in audiovisual
productions..." (document INR/CE/3, paragraph 63). Whereupon, the
Director General of WIPO stated that the International Bureau would
prepare, in due time, a document on audiovisual fixations (ibid,
paragraph 64).
6. The second session of the Committee, which took place from
November 8 to 12, 1993, was dedicated to completing an examination of
the International Bureau's proposals in the memorandum prepared for
the first session, and thus the question of audiovisual fixations was
not discussed. In the memorandum prepared for the third session of
the Committee, which took place from December 12 to 16, 1994, the
International Bureau indicated that it was in the process of
collecting information on national laws and practices for preparation
of the aforementioned document, that discussions on various questions
concerning the protection of audiovisual fixations of performances
were taking place among certain governments at that time, that time
should be allowed for such discussions to be Completed, and that,
accordingly, questions concerning the rights of performers in
audiovisual fixations would not be included in the said memorandum
(document INR/CE/III/1, paragraph 10). During the third session of
the Committee, the Chairman noted that many delegations and observers
expressed support for inclusion of the rights of performers in
audiovisual fixations in the new instrument (document INR/CE/III/3,
paragraph 31). Accordingly, as noted in paragraph 1 above, the
Committee decided, at the end of the session, that the present
discussion paper should be prepared for consideration during its next
session.
7. it may be useful to describe the arguments that were put
forward, during the previous sessions of the Committee, concerning
inclusion of the rights of performers in audiovisual fixations in the
New Instrument. The arguments in favor of such inclusion were as
follows: If the New Instrument is to be considered a special agreement
under Article 22 of the Rome Convention--which seems to be the
case--it must produce improvements in the protection established in
the Convention, and the recognition, in the Now Instrument, of the
status of all performers as creators of sounds and images is a
necessary element of such improvements. The question of the rights of
performers in audiovisual fixations no longer concerns only film
actors; due to the technological and commercial developments since the
Rome Convention was concluded, the performances of musicians, opera
and ballet performers are frequently made available on video
recordings, and the traditional distinction between audio and
audiovisual fixations of performances, particularly in light of
Article 19 of the Convention, which cuts off the rights of performers
once they consent to inclusion of their Performances in audiovisual
fixations, is no longer realistic. Performances and fixations of
performances--both audio and in audiovisual fixations--are ever more
frequently communicated to the public by broadcasting or by cable
134
INR/CE/IV/3
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the fixation is audio or audiovisual fixation. Such a right to
authorize or "possibility of preventing" is granted also in many
countries, not party to the Rome Convention, since the unauthorized
fixation of live performances ("bootlegging") is considered an act of
piracy. In practice, the exercise of performers' rights in respect of
unfixed (live) performances is linked to the exercise of rights in
respect of the use of fixations in the context of negotiations for
collective contracts between organizations representing performers and
organizations representing film producers and other users of fixed
performances.
15. Provisions on the rights of performers concerning their
unfixed performances are included in legal instruments of certain
regional bodies composed of States. Council Directive 92/100/EEC of
19 November 1992 of the European Union on rental right and lending
right and on certain rights related to copyright in the field of
intellectual property provides an exclusive right for performers to
authorize, inter alia, the fixation of their live performances
(irrespective of whether the fixation is audio or audiovisual
fixation).
16. Under Decision 351--Common Provisions on Copyright and
Neighboring Rights of December 17, 1993--of the Cartagena Agreement,
the Member Countries (Bolivia, Colombia, Ecuador, Peru and Venezuela)
must provide performers with rights to authorize, inter alia, the
fixation of live performances (irrespective of whether the fixation is
audiovisual or audiovisual fixation).
THE RIGHTS OF PERFORMERS IN THE AUDIOVISUAL FIXATIONS OF THEIR
PERFORMANCES
The Rome Convention
17. The Rome Convention regulates, the rights of performers in
the fixations of their performances as follows. As far as
reproduction is concerned, performers have the right "to prevent" the
reproduction of a fixation of their performances (i) if the original
fixation was made without their consent (Article 7(1)(c)); (ii) if the
reproduction is made for purposes different from those for which the
performers gave their consent; (iii) if the original fixation was made
in accordance with the provisions of Article 15 (on exceptions and
limitations), and the reproduction is made for purposes different from
those referred to in those provisions. If performers have consented
to broadcasting, it is a matter for national legislation of the member
States to regulate the protection against the reproduction of a
fixation for broadcasting purposes (Article 7(2)(1)). Likewise,
Article 7(2)(2) provides that the terms and conditions governing the
use of fixations made for broadcasting purposes are to be determined
in accordance with the national legislation of the member States.
Article 12--with broad possibility of reservations under Article
16--also provides a right to remuneration for broadcasting and
communication to the public but this right only covers phonograms,
that is, audio fixations (which may be granted to the performers
and/or the producers of phonograms). Thus, this right is irrelevant
from the viewpoint of the subject matter of the present paper.
18. The Convention contains other exceptions to and limitations
on the rights of performers in respect of uses of fixed performances.
Performers have no right to authorize broadcasting or communication to
the public of
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THE RIGHTS OF PERFORMERS IN RESPECT OF THE ACT
OF AUDIOVISUAL FIXATION OF THEIR UNFIXED (LIVE) PERFORMANCES
10. It should be emphasized that the subject matter of the
present paper is the rights of performers in audiovisual fixations of
their performances, that is, what rights, if any, performers should
have concerning acts carried out in respect of such fixations. The
question of what rights, if any, performers should have in respect of
the act of audiovisual fixation of their unfixed performances is not
directly covered by the subject matter of the present paper.
Nevertheless, for an appropriate presentation of the context in which
the questions concerning performers' rights in audiovisual fixations
of their performances emerge, it seems necessary to also discuss
briefly what control performers may have at the moment when their
unfixed performances are included in audiovisual fixations.
The Rome Convention
11. Article 7(1)(b) of the Rome Convention provides that "the
protection provided for performers by this Convention shall include
the possibility of preventing :... the fixation, without their
consent, of their unfixed performance." it is clear that this
provision extends to both audio and audiovisual fixations.
12. The records of the diplomatic conference which created the
Rome Convention reveal that performers were granted the "possibility
of preventing" the enumerated acts, rather than exclusive rights to
authorize or prohibit, in order that countries which protected
performers by means of legislation other than copyright and
neighboring rights, such as under criminal statutes or unfair
competition laws (for example, the United Kingdom at that time), might
continue to provide such protection rather than being required to
amend their laws to provide exclusive rights. The application of
compulsory licenses was excluded, however, since performers would not
have the "possibility of preventing" the enumerated acts.
The TRIPS Agreement
13. The TRIPS Agreement also contains provisions on the rights
of performers in respect of the fixation of their unfixed
performances; but the scope of the rights granted under those
provisions is narrower than under the provisions of Article 7 of the
Rome Convention. Article 14(1) of the TRIPS Agreement provides as
follows; "In respect of a fixation of their performance on a
phonogram, performers shall have the possibility of preventing the
fixation of their unfixed performance..." (emphasis added). This
means that, under the TRIPS Agreement, performers have no protection
against the unauthorized audiovisual fixation of their unfixed
performances (if only the sounds of their performances are fixed, they
enjoy protection; if, in addition to the sounds, also the images of
their performances are fixed, they enjoy no protection under the
provisions of the TRIPS Agreement on neighboring ("related") rights).
National laws and regional instruments
14. Notwithstanding that Article 7 of the Rome Convention only
requires countries party to it to provide performers with the
"Possibility of preventing" certain acts, numerous countries rant an
exclusive right to authorize fixation of unfized (live) performances
irrespective of whether
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that performers shall have the exclusive right to authorize direct or
indirect reproduction, the exclusive right to make available-copies by
sale or otherwise (right of distribution), and the exclusive right to
authorize rental and lending of copies of fixations of their
performances. It also provides that these rights may be transferred,
assigned or subject to the grant of contractual licenses. The
Directive provides that the signing of a contract between performers
and producers concerning film production creates a presumption of
transfer of the right of rental, and that Member States of the Union
may also provide that the signing of such a contract has the effect of
authorizing rental, provided that the contract provides for payment of
equitable remuneration to performers. These provisions are, however,
subject to Article 4 of the Directive under which the right to obtain
equitable remuneration for rental cannot be waived. Member States may
also regulate whether and to what extent-administration by collecting
societies of the right to obtain such remuneration may be imposed. As
far as public lending is concerned, the Member States may derogate
from the above-mentioned exclusive right, and in the case of
neighboring ("related") rights, this derogation may go as far as
completely denying such a right.
23. Council Directive 93/83/EEC on the coordination of certain
rules concerning copyright and rights related to copyright applicable
to satellite broadcasting and cable retransmission provides that
Member States shall ensure that, when broadcast programs from other
Member States are retransmitted by cable in their territory, the
applicable copyright and related rights are observed and that such
retransmission takes place on the basis of individual or collective
contractual agreements between owners of rights and cable operators.
(Notwithstanding this, Member States may retain until December 31,
1997, statutory license systems which were in operation or expressly
provided for by national law on July 31, 1991). Member States must
ensure that the right of, inter alia, owners of neighboring
("related") rights to grant or refuse authorization to a cable
operator for a cable retransmission may be exercised only through a
"collecting society." The Directive provides for a mediation process
if nor agreement is concluded regarding the authorization of cable
retransmission, and it also contains provisions concerning the
prevention of the abuse of negotiating positions.
24. Under Decision 351--Common Provisions on Copyright and
Neighboring Rights of December 17, 1993--of the Cartagena Agreement,
performers are granted the right to authorize the reproduction of the
fixations of their performances. The Decision provides that the
Member States may establish Exceptions to the rights provided to the
extent permitted by the Rome Convention; it also contains a chapter
governing the operations of organizations for the collective
management of copyright and neighboring rights, including supervision
by competent national authorities.
25. In Argentina, performers have the moral right to oppose use
of performances which "produce serious or unjust prejudice to....
artistic interests," and the right to receive remuneration for the
reproduction, broadcasting and retransmission of fixations of
performances. Collective agreements are in place concerning the
initial and secondary use of fixed performances in the making of
cinema films (agreement between the Asociacion Argentina de Actores
(AAA) and associations of film producers) and television programs
(agreement between AAA and associations of public and private
broadcasters). Performers are remunerated through AAA for initial
exhibition of cinema films including their performances in cinema
halls. In respect of performances included in television programs a
recent collective
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INR/CE/IV/3
page 7
performances which are made from fixations (Article 7(1)(a)).
Further, limitations on the rights of performers are permitted under
Article 15 of the Convention, as regards (i) private use; (ii) use of
short excerpts in connection with the reporting of current events;
(iii) ephemeral fixation by a broadcasting organization by means of
its own facilities and for its own broadcasts; (iv) use solely for the
purposes of teaching or scientific research. Under Article 15(2),
member States may provide for the same kind of limitations with regard
to the protection of performers as the domestic laws and regulations
provide in connection with the protection of copyright in literary and
artistic works, including the possibility of non-voluntary licenses.
19. From the standpoint of the rights of performers in
audiovisual fixations, it is Article 19 that provides the most
significant limitation on the right to authorize reproduction of
fixations of performances; it provides that "[n] notwithstanding
anything in this Convention, once a performer has consented to the
incorporation of his performance in a visual or audiovisual fixation,
Article 7 shall have no further application." The result of Article 19
is that performers lose all protection in audiovisual fixations,
except those made clandestinely or otherwise without their consent.
It is worth noting, however, that Article 19 does not affect
performers' freedom of contract in connection with the making of
audiovisual fixations.
The TRIPS agreement
20. Article 14(1) of the TRIPS Agreement provides that
performers shall have-the possibility of preventing the reproduction
of their fixed performances, but only in respect of performances fixed
on phonograms. No rights are provided if an audiovisual fixation is
involved.
National laws And regional instruments
21. The national laws which provide economic rights of
performers in respect of uses of fixed performances provide varying
combinations of rights. The following economic rights of performers
have been identified under various national laws in respect of uses of
fixed performances : reproduction of the fixation, broadcasting of the
fixation, communication to the public of the fixation, distribution by
cable of the fixation, remuneration for private copying of the
fixation, and rental of the fixation. in most countries where such
rights are effectively exercised, they are administered collectively
either on the basis of a transfer of exclusive rights or on the basis
of a right to remuneration. In the case of performances included in
audiovisual fixations, however, the rule of Article 19 of the Rome
Convention is often applied, that is, once a performer agrees to the
inclusion of a performance In an audiovisual fixation, the performer
ceases to enjoy (is deemed to have transferred) his economic rights in
the fixation. What follows is a description of certain typical
systems applied in certain regions and countries concerning the use of
performances in audiovisual fixations in terms of statutory rights,
contractual practices including collective bargaining and collective
management of rights.
22. In the European Union, Council Directive 92/100/EEC of 19
November 1992 on rental right and lending right and on certain rights
related to copyright in the field of intellectual property,
establishes rights of performers that exceed the minima contained in
the Rome Convention. The Directive provides
INR/CE/IV/3
page 10
30. In Colombia, the legislation provides performers with moral
rights, and exclusive rights to authorize reproduction,. communication
to the public and transmission of their performances. Once performers
have consented to the inclusion of their performance in a visual or
audiovisual fixation, these rights cease to apply, but performers have
the right to agree by contract to more favorable terms.
31. In France, the tights of performers include moral rights,
the exclusive right to authorize reproduction of fixations of
performances and the exclusive right to authorize "any separate use of
the sounds or the images of the performance, where the latter has been
fixed as regards both sounds and the images." Rights to equitable
remuneration are provided for private copying of both phonograms and
videograms. In the case of audiovisual works, the signing of a
contract "between a performer and a producer for the making of an
audiovisual work shall imply the authorization to fix, reproduce and
communicate to the public the performance of the performer." Such a
contract "shall lay down separate remuneration for each mode of
exploitation of the work." The legislation also refers to the status
of performing artists as salaried employees under the Labor Code.
32. The French legislation makes no apparent distinction between
French and foreign performers in terms of exclusive rights. However,
it also contains the following provision : "Subject to the
international conventions, the right to remuneration (for broadcasting
and communication to the public of phonograms and for private copying)
shall be shared among the authors, performers, producers of phonograms
and videograms in respect of phonograms and videograms fixed for the
first time in France."
33. An agreement was concluded in 1990 between three
organizations representing film producers and the Synadicat Francais
all Artistes Interpretes (SFA) concerning remuneration to performers
involved in the taking of cinematographic works. The agreement
includes a minimum salary, divided into three parts (one for
cinematographic exploitation in theaters or other halls open to the
public; one for exploitation by telediffusion; and one for
exploitation in the form of videograms for private use by the public).
In addition to the salary, the film producer pays to the collecting
society ADAMI (Societe Pour l'administration des droits des artistes
et musiciens interpretes) a sum fixed at two per cent of net receipts
from exploitation of the work, after amortization of the costs of the
film. ADAMI prorates the distribution among performers based on their
initial salary, up to a daily limit corresponding to seven times the
minimum salary. The agreement is valid for five years, and observance
of its provisions was made compulsory by a Ministerial Decree shortly
after it was concluded.
34. Collective agreements also exist which cover the inclusion
of musical performances in audiovisual fixations. For example, an
agreement between the Orchestre de Paris (ODP) and the Syndical
National des Musiciens (SNAM), the Syndicat des Artistes-Musiciens
Professionnels de la Region Parisienne (SAMUP), and the Societe de
perception et de distribution des droits des artistes interpretes de
la musique et de la danse (SPEDIDAM), establishes the remuneration for
ODP musicians in respect of inclusion of their performances in cinema
films, television programs, and videograms, including foreign and
domestic use. Other agreements apply to use of musical performances
in commercial videograms, including music videos; ADAMI and PEDIDAM
collect and distribute remuneration to performers arising out of these
uses.
141
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agreement provides that remuneration for initial use Covers a single
broadcast covering the area of Buenos Aires. In respect of secondary
use, remuneration for repeat broadcasts covering the area of Buenos
Aires, and simultaneous transmissions of initial broadcasts to areas
outside Buenos Aires, give rise to a payment based on a percentage of
the original fee,depending on the length of the program and the number
of repeat broadcasts,up to a ceiling. Repeat broadcasts to areas
outside Buenos Aires give rise to a payment of 50 per cent of the
original fee, up to a ceiling; the payment is made at the same time as
the original fee. In terms of foreign television broadcasts, the
agreement entitles Argentine performers to a payment of 25 per cent of
the original fee for broadcasts in Uruguay and any two other
countries; for additional countries, the additional payment is 18 per
cent of the original fee.
26. In Australia, performers rights were introduced into the
copyright law in 1989. Under the legislation, performers have
exclusive rights to, inter authorize use of a recorded performance, if
the original recording was unauthorized. A system of remuneration for
private copying is expected to be introduced soon, but it will only
apply to audio recording. Several collective agreements have been
concluded between representatives of performers (such as the Media
Entertainment and Arts Alliance (MEAA) and users). For example, a
recent version of the Actors Feature Film Award contains provisions
relating to the secondary uses of actor's recorded performances. In
the so-called "work in one product" clause, the producer agrees that
the actors performance will only be used in relation to the film that
is the subject of the agreement. An "editing and segmenting clause"
obliges the producer not to edit the film or use segments of it in any
other way without the actor's consent, for example, by using portions
of the actor's performance in a "music video." The producer either
buys up all exploitation rights at the time of the initial agreement,
or purchases the rights as needed. Most producers buy up world cinema
distribution rights, world video rights, and Australian television
rights at the outset, while waiting to buy such rights as foreign
television rights.
27. Three agreements apply to performances included in
television programs, the Actors Television Program Award, which is the
basic agreement concerning the appearance of actors in television
films, the Australian Television and Residuals Agreement (ATRA), which
gives actors a right to residual payments for rebroadcast and reuse of
the programs which include their performances, and the Actors Etc.
(Television) Award, which covers performers in documentaries, training
videos, and commercials.
28. In respect of musical cover musicians working in agreements
bind only a few under state-level awards; Orchestral Award, provides
making and exploitation of performances, several federal agreements
(awards) film, documentaries and television, but these employers.
Consequently, most musicians work of these, only one, the Music (Opera
and Ballet) musicians with additional remuneration for the recordings
of their performances.
29. Under the copyright law of China, performers have moral
rights. Furthermore, producers of both sound and video recordings are
required to pay remuneration to performers in respect of the
reproduction and distribution of such recordings; and civil liability
attaches to anyone who reproduces or publishes a sound or video
recording of a performance without the consent of the performer.
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38. In the case of equitable remuneration for broadcasting and
Communication to the public of fixed audio and audiovisual
performances (including by satellite and cable), the level of
remuneration is set in Collective contracts between broadcasting
organizations and organizations representing performers. For example,
in the case of broadcasting, the agreement between the state
broadcasting organization ARD and the collecting society GVL provides
that ARD pays an annual remuneration of 4.52 per cent of its
advertising revenue for radio broadcasts, and 0.1 per cent of
advertising revenue for television; in the case of private
broadcasters# the remuneration is 4.5 per cent of advertising revenue
for radio and 0.275 per cent for television. One half of the
remuneration distributed is paid to the representatives of performers.
39. In the case of equitable remuneration for private copying
the payment obligation falls on manufacturers and, importers of
recording equipment and blank recording media; for Video recording
equipment, the levy is presently 8.00 DM; for video recording media,
the levy is presently 0.17 DM per hour of recording time. The
royalties are collected and distributed by a single society, the ZPU,
formed jointly by the societies representing the various owners of
rights concerned. In the case of private copying in the audiovisual
sphere, 21 per cent of the amount distributed is paid to the
representatives of performers, 50 per cent goes to the representatives
of film producers, 21 per cent goes to the representatives of
composers, lyricists and music publishers, and 8 per cent is paid to
the representatives of authors and publishers of literary works.
40. In India, recent legislation provides rights to performers
for the first time. The rights provides include the exclusive right
to authorize reproduction of a sound or visual recording of the
performance, if the original recording was made without the
performer's consent or was made for purposes different from those for
which the performer gave his consent. however, once a performer has
consented to the incorporation of his performance in a cinematograph
film, he no longer has the afore-mentioned lights.
41. In Japan, the legislation provides performers with exclusive
rights to authorize reproduction, broadcasting and cable transmission
of their Performances these rights do not apply, however, in the case
of performances included, with the performer's consent, in
cinematographic works. A right of rental is granted in a way that it
only extends to performances included in phonograms. Under recent
legislation, performers have the right to a share in remuneration
collected to compensate for private copying of sound and audiovisual
recordings on digital recording Equipment. The payment obligation is
imposed on manufacturers and importers of such equipment, and may only
be collected and distributed by collective administration organization
representing authors and other copyright owners, performers and
producers of phonograms. The performers share is Administered by the
Japan Council of Performer's Organizations (GEIDANKYO). Prior to
distribution, 20 Percent of the amounts collected are to be used or
activities "contributing to the protection of copyright and
neighboring rights as well as to the promotion of the creation and
dissemination of works." Collective agreements exist for the use of
performances, for example, an agreement between the National
Broadcasting Station (NHK), five commercial broadcasting
organizations, and the Musicians Union of Japan establishes the right
of musicians to payment for broadcasting and rebroadcasting of their
performances, as well as use in other media such as videograms.
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page 11
35. In respect of equitable remuneration for private copying,
the payment obligation is imposed on manufacturers and importers of
blank audio and video recording media, but not on recording equipment.
The amount of the payment is set by a Commission established by a
ministerial decree; for audiovisual private copying, the levy on blank
videotapes is currently FF 2.25 per hour (FF 0.0375 per minute). The
remuneration is payable according to the following shares in the case
of copying from videograms : one-third to authors, one-third to
performers, and one-third to producers. The legislation requires that
the remuneration for private copying be administered by collecting
societies established as civil law companies, subject to the general
oversight of the Minister of Culture. In the case of remuneration for
private copying of audiovisual fixations, the rights are collected and
distributed by the Societe pour la remuneration de la copie Privee
audiovisuelle (Copie France) a a society formed jointly by the
societies representing authors, performers and producers. In the case
of performers, the remuneration is distributed by ADAMI (which
represents featured performers) and SPEDIDAM (which represents non-
featured performers). The legislation provides that 25 per cent of
the amounts collected for private copying shall be used for activities
to promote creation, live entertainment and training for performers.
36. In Germany, the rights of performing artists include moral
rights and the right to authorize reproduction of fixations of
performances. Rights to equitable remuneration are provided for
broadcasting of performances fixed on audio and audiovisual supports
which have been published (commercialized), and for communication to
the public of fixed performances. Performers have the right to a
share in equitable remuneration for private copying on both audio and
video recording media. These rights are limited in the case of
performers "who participate in the production of a cinematographic
work or whose performances are lawfully used in the production of a
cinematographic work"; in such cases, the performer--in addition to
the right to authorize fixation of his unfixed performance--is only
entitled to the right of equitable remuneration for private copying.
Nonetheless, the principle of contractual freedom applies : performers
and film producers may agree by contract that some or all performers'
rights may be maintained.
37. There are no provisions in German legislation concerning the
remuneration to performers resulting from the transfer of rights; this
is left generally to collective agreements between performers and
employers. In the field of television, for example, the contract of
employment for performers engaged by the broadcasting organization NDR
involves transfer of the rights of reproduction, broadcasting
(including by satellite and cable), and communication of the fixation
of the performance, but the performer retains the right to equitable
remuneration for broadcasting and communication to the public; NDR is
authorized to transfer these rights totally or In part to third
parties. The performer is paid at the outset for the transfer of
rights, but any modification of the contract requires his
authorization. In the case of acts of rebroadcasting or new acts of
communication to the public other than those specified in the
contract, the performer is entitled to remuneration as follows : for
acts taking place within 10 years of the first broadcast or
communication to the public, the initial payment is increased by 35
per cent; for acts taking place thereafter, the increase is 10 per
cent of the initial payment, paid every five years.
INR/CE/IV/3
page 14
and Television Producers and two organizations representing
performers, the American Federation of Television and Radio Artists
(AFTRA) and the Screen Actors Guild (SAG), which has been renewed
periodically since 1977, establishes the payment rights of performers
Payments are made for initial use, which is defined as cinema
(theatrical use) worldwide, and secondary uses on a worldwide basis,
including television, videograms, basic cable and pay television. For
use of cinema films on television, performers receive 3.6 per cent
of the distributors worldwide gross receipts; if the producer sells
exhibition rights outright, the percentage rises to 5.4 per cent. For
inclusion of their fixed performances on videograms, and for rental of
videograms, performers are entitled to 4.5 per cent of worldwide
wholesale receipts up to US$ 1 million; for receipts in excess of that
amount, the percentage is 5.4 per cent. For basic cable, pay
community antenna television (CATV, "where charges are made additional
to the general cable charges"), and pay television, performers are
entitled to 3.6 per cent of the distributors' worldwide gross
receipts. There are certain stipulations to these general formulae :
for example, if the producer is also the distributor, or if the
distributor is owned by or affiliated with the producer, the "gross
receipts" on which performers' remuneration are based are deemed to be
20 per cent of worldwide wholesale receipts. Payments' are
distributed to performers on the basis of time units (1/5 unit per
day, 1 unit per week, up to a maximum of 5 units per performers) and
salary units, based on the SAG daily or weekly scale salary, up to a
maximum of 10 units per performer. Under the Agreement, SAG is
entitled to receive information from the producer, such as cast lists,
copies of employment contracts, and statements of gross receipts.
46. In the case of inclusion of performances in television
programs, an agreement between the Alliance of Motion Picture and
Television Producers and AFTRA/SAG includes the following residuals
for performers following the initial use of the fixed performance,
which is defined as a single run on free television "in each city of-
the United States and Canada in which there are, or are later
established, television broadcasting stations" : for repeat broadcasts
on U.S./Canada television stations during prime time, 100 per cent of
the total initial fee, up to a ceiling; for foreign television
broadcasts, 15 per cent of a set minimum salary multiplied by the
number of days or weeks the individual performer was employed to make
the film (in exchange for which the producer acquires the right to
world wide television distribution outside the United States and
Canada); for-basic cable distribution, 6 per cent of the distributor's
gross receipts, subject to certain ceilings, for distribution among
the cast; for inclusion in videograms, 4.5 per cent of 20 per cent of
the distributor's worldwide wholesale receipts up to $US 1 million,
5.4 per cent of such receipts in excess of $US 1 million.
47. A separate agreement between SAG and representatives of
advertising organizations applies to the rights of performers whose
performances are included in commercials, which are of a dual nature :
payment for services rendered in making the commercial, and payment
for use of the commercial. In respect of payment for making the
commercial, 'on camera' performers are paid a session fee based on an
eight-hour day (plus overtime on a pro rata basis), subject to a
minimum based on the number of performers in the session; 'off camera'
performers are paid a session fee based on two-hour segments, also
subject to a minimum based on the number of performers in the session.
In respect of payment for use of the commercial, compensation is based
on a 13-week cycle, and the maximum period of use of the same
145
INR/CE/IV/3
page 13
42. In Norway, the rights of performers include the moral right
to be recognized as the performer and the exclusive right to authorize
reproduction of a fixed performance. As in some other Scandinavian
countries, the Norwegian legislation contains no provision stating
that performers are deemed to transfer all economic rights when they
consent to inclusion of their performance in an audiovisual fixation.
A levy is also collected on blank audio and video tapes, but the
proceeds go into a fund which provides grants to performers and other
artists; there is no individual distribution to performers Collective
agreements are in place concerning the initial and secondary use of
fixed performances in the making of cinema films (agreement between
Norsk Ballettforbund (NBF), a trade union representing actors, and the
association of film producers), television programs (agreement between
trade unions NBF and Norsk Skuespillerforbund (NSF) and the Norwegian
Broadcasting Corporation (NRK)), and commercials (agreement between
NSF and the Commercials Bureau Association). In the case of cinema
films, for example, each actor is entitled to a buyout of seven per
cent of initial compensation for use of their fixed performances in
television broadcasts; for inclusion in ideograms, a fixed sum is paid
to the collecting society NORWACO at the time of cinema release of the
film, and for gross income from video distribution in excess of NOK
500,000, performers are entitled to 12.5 per cent of the producer's
gross income.
43. In the recent legislation of the Russian Federation, the
rights of performers include moral rights of integrity and paternity,
the exclusive right to authorize reproduction of a fixed performance,
if the original fixation was not authorized, or was made for purposes
different than those to which the performer consented, or was made in
reliance on an explicit limitation on the rights of the performer.
Performers are entitled to equitable remuneration for rebroadcasting,
recording for broadcasting purposes,, and the reproduction of the
recording by broadcasting and cable distribution organizations. The
legislation provides that the conclusion of a contract for the making
of an audiovisual work shall constitute licensing by the performer of
his economic rights in respect of use of the audiovisual work; unless
provided in the contract, any separate use of the sounds or images
included in the work is Subject to separate consent by the performer.
Performers are also entitled to remuneration for private copying of
sound recordings and audiovisual works, which is 30 per cent of the
sum collected from manufacturers and importers of recording equipment
and blank recording media; the remuneration is to be collected and
distributed by a collecting society.
44. In the United States of America, there is no federal
legislation which provides intellectual property rights for performers
whose performances are included in audiovisual fixations. One reason
that performers are not provided specific federal statutory rights is
because, under jurisprudence dating from the 1930s, the contributions
of performers, at least in respect of sound recordings, are considered
intellectual creations subject to protection under copyright.
45. Notwithstanding the lack of direct legislation protecting
performers, rights, a number of collective agreements exist
guaranteeing performers remuneration in the form of "residuals"
(payments arising out of uses of their fixed performances following
the initial use, which is compensated usually through a salary-typo
payment for services rendered). In respect of the rights of
performers whose performances are included in cinematographic films,
the Codified Basic Agreement between the Alliance of Motion Picture
INR/CE/IV/3
page 15
commercial is 21 months after the beginning of the first 13-week
cycle. The commercials may only be exhibited on television; any other
use requires a separate authorization by the performer. Commercials
may be used outside the United States if permitted in the contract,
subject to minimum compensation; for example, the extra compensation
to performers for use of commercials in the United Kingdom is three
times the session fee, two times the session fee for use elsewhere in
Europe, and one extra session fee for use in the Asia-Pacific region.
Minimum use fees also apply for use of commercials in cable and
satellite transmissions, and for inclusion of commercials in
videograms.
48. Collective agreements also exist in the United States which
apply to the use of musical performances in audiovisual fixations.
The American Federation of Musicians (AFM) represents musical
performers in the negotiation of such agreements, which cover cinema
films (for example, the Independent Producers Basic Theatrical Motion
Picture Agreement), production of videograms, including music videos
(the Phonographic Record Labor Agreement), and television commercials
(the Television and Radio Commercials Agreement). These agreements
establish the basic conditions for initial employment of musicians
(session fees), as well as rights in respect of secondary uses of
musical performances.
(End of document]
INR/CE/V/11
ORIGINAL : English
DATE : January 10, 1996
WORLD INTELLECTUAL PROPERTY ORGANIZATION
GENEVA
COMMITTEE OF EXPERTS ON A POSSIBLE INSTRUMENT FOR
THE PROTECTION OF THE RIGHTS OF PERFORMERS AND
PRODUCERS OF PHONOGRAMS
Fifth Session
Geneva, February 1 to 9, 1996
COMPARATIVE TABLE OF PROPOSALS AND COMMENTS
RECEIVED BY THE INTERNATIONAL BUREAU
Document prepared by the International Bureau
I. INTRODUCTION
1. At the fifth session of the Committee of Experts or. a
Possible Protocol to the Berne Convention and the fourth session of
the Committee of Experts on a Possible Instrument for the Protection
of the Rights of Performers and Producers of Phonograms, meeting
jointly from September 4 to 8 and 12, 1995, it. was agreed that the
Director General should invite the Government members of the
Committees and the European Commission to send to the International
Bureau by November 20, 1995, proposals in treaty language... to be
Circulated as documents for consideration at the next [that is, the
present] meetings of the Committees (see WIPO document BCP/CE/V/9-
TNR/CE/IV/8, paragraphs 356 and 376). Following the invitation sent
by the Director General, the International Bureau received nine
proposals concerning the possible Instrument, namely from the European
Community and its Member States, Argentina, the Sudan, China, Uruguay,
Brazil, the United States of America, Japan Canada in that order.
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INR/CE/V/ 11
page 2
2. This document presents the proposals and comments on each of
the issues concerning the above-mentioned Instrument in alphabetical
order of the countries (and the European Community and its Member
States).
3 The issues covered by the proposals and by the relevant
comments are as follows :
- preamble (chapter II),
- definitions (chapter III),
- moral rights of performers (chapter IV),
- economic rights of performers in respect of their live
performances (Chapter V)
- economic rights of performers in respect of their fixed
performances( Chapter V)
* reproduction (subchapter A)
* private copying (subchapter B),
* distribution,including importation (subchapter C),
* rental (subchapter D),
* adaptation/alteration (subchapter E),
* broadcasting (subchapter F)
* communication to the public (subchapter G),
* digital transmission (subchapter H),
* exceptions and limitations (subchapter I)
_ rights of producers of phonograms (chapter VII)
* reproduction (subchapter A)
* private copying (subchapter B)
* distribution, including importation (subchapter C).
* rental (subchapter D),
* adaptation/alteration (subchapter E),
* broadcasting (subchapter F),
* communication to the public (subchapter G),
* digital transmission (subchapter H),
* exceptions and limitations (subchapter I)
- terms of protection (chapter VIII),
- formalities/automatic protection and independence of
protection (chapter IX)
- enforcement of rights (chapter X)
- technological measures (chapter XI)
- national treatment (chapter XII),
- reservation (chapter XIV),
- retroactive effect (chapter XV).
4. The text of treaty language proposals are indented and are
reproduced in italics.
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INR/CE/V/ 11
page 3
II. PREAMBLE
United States of America
:
No proposal is made at this time for a Preamble to the
Agreement. However, a Preamble may be useful to clarify the purpose of
this Agreement and to explain its relation to other international
agreements.
INR/CE/V/ 11
page 4
III. DEFINITIONS
Argentina
:
(a) "Performer means any actor, singer, musician,
dancer or other person who plays apart in, sings, recites,
declaims, interprets or in any way performs a literary or
artistic work or an expression of folklore, including variety
artistes and circus performers.
(b) "Phonogram" means the fixing of the sounds of
a performance or other sounds or digital representations of
sounds. An audiovisual fixation, or the sound of an
audiovisual work, is not a phonogram.
(c) "Fixation " means the capturing of sounds or
images in a form in which they may be made audible or visible
by means of appropriate apparatus. It means the
representation of such sounds or images in digital form.
(d) "Producer of phonograms " means the person,
whether natural person or legal entity, who takes the
initiative and undertakes the coordination of and assumes
responsibility for the first fixing of the sounds of a
performance or other sounds, regardless of the technology
used (analog, digital, etc.).
(e) "Publication of the phonogram " means :
(i) making a sufficient number of originals or copies
of a phonogram available to the public, or
(ii) making the sounds fixed on a phonogram or the
digital representation of such sounds available to the public
by means o an electronic retrieval system.
(f) "Reproduction" of a phonogram or performance fixed
on a phonogram means the fact of making one or more originals
or copies of all or a substantial part thereof, regardless of
the method used to make the copy or the medium in which it is
made, including storage of the phonogram or of the
performance fixed on a phonogram in electronic form,
regardless of the duration of the storage.
(g) "Rental of a copy of a phonogram" means any
transfer free of consideration, for a limited period of time,
of the possession of a copy of a phonogram.
(h) "Public lending of a copy of a phonogram" means
the transfer free of charge, for a limited period of time, of
the possession of a copy of a phonogram
(i) "Communication to the public" of a performance
means the transmission by any medium of the images or sounds
in such a way that two or more persons may have access to the
performance without the prior distribution of copies.
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INR/CE/V/ 11
page 5
European Community and its Member States :
In addition, it is proposed that on all other points of the
agenda of the Committee of Experts on which no specific submissions
are being made herewith, future discussions take place on the basis of
the agreement reached at previous meetings of the Committee of Experts
and on the relevant paragraphs in the memoranda prepared by the
International Bureau.
United States of America :
No definitions currently are included in this proposal. However,
the United States continues to believe that the issue of definitions
is critical and must be addressed after the subject matter and the
substantive obligations of the New Agreement have been agreed upon A
definition of "performer" that confines the scope of the New
Instrument to musical performers remains an important issue for the
United States.
Also, as in the Berne Protocol, because of the inclusion of
elements of the digital agenda, the United States believes that it
will be necessary to include definitions that clearly distinguish
between acts which are "public," and hence subject to the
authorization of the right holder, from those which are essentially
private in nature, some of which may be outside the control of the
right holder.
Technological developments may also make it necessary to adapt
existing definitions to ensure that they will not be made obsolete by
current or foreseeable technological developments. For example, the
definitions should be sufficiently flexible to accommodate
technological developments.
The foregoing text is also reproduced in Chapter IX
(Formalities/Automatic Protection and Independence of Protection) and
in Chapter XIII (National Treatment).
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page 6
IV. MORAL RIGHTS OF PERFORMERS.
Argentina:
Independently of his economic rights, the performer
shall have the imprescriptible right :
(a) to demand that his name be mentioned, in the
customary manner and to the extent possible, on the copies of
the fixation of his performances in connection with any kind
of public use thereof;
(b) to object to any kind of distortion, mutilation or
other serious alteration of his performances, or other
injurious action in relation to them, that might be
prejudicial to his reputation..
After the death of the Performer, his moral rights may
be exercised by, his spouse or direct descendants or, if
there are none, by the institutions authorized by national
legislation to exercise moral rights.
Brazil:
Independently of their patrimonial rights, performers
shall have the moral rights to.,
(a) indicate the civil or artistic name, in the usual
manner, in the fixation of their interpretations or
performances and respective copying,
(b) object to any kind of distortion, use or other
modification of their interpretation or performance or to any
other derogatory actions in relation to them, which would be
harmful to their honor or reputation,
(c) rights conferred in accordance with the previous
paragraph shall last at least till the expiration of the
performers' patrimonial rights and, after the death of the
performer, and may be claimed by, the person or institution
authorized, in accordance to the domes tic legislation of the
country in which the protection has been claimed.
The proposal concedes to performers the moral rights
conferred to authors, in accordance with the Article 6bis of
the Berne Convention.
Canada :
The following... should be included in the New Instrument...
Moral rights for performers...
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INR/CE/V/ 11
page 7
China:
The National Copyright Administration of the People's Republic of
China [hereinafter referred to as "NCAC"] supports the proposals in
the memorandum prepared by the International Bureau for the third
session, Committee of Experts on the New Instrument,.. on the
following topics :
(a) moral rights of performers (paragraphs 35-36)_,..
European Community and its Member States :
As far as moral rights of performers are concerned, the European
Community and its Member States have not yet reached a common
position. However, a strong majority exists in the European Community
in favour of the inclusion of a provision in this respect in the New
Instrument. In these circumstances, the European Community and its
Member States are prepared to discuss the matter also on the basis of
proposals from third countries.
Japan :
The Government of Japan proposes that the Instrument for the
Protection of the Rights of Performers and Producers of Phonograms...
reserves its position on other items such as "Moral Rights of
Performers"...
Sudan :
Each contracting state undertakes to protect the following
rights of performers.-
(a) the moral rights, in particular.-
(i) to be named each time their performances are used, and,
(ii) to object to any distortion, mutilation or other
derogatory action in relation to their performances...
United States of America :
In respect of the New Instrument, the United States has not
submitted any language on moral rights of performers. We remain
unconvinced, as do a number of other countries, that such rights are
necessary. As we have noted in past discussions of the issue, should
there be a consensus that moral rights of performers are necessary, we
could consider a provision for such rights patterned on Article 6bis
of the Berne Convention.
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page 8
V. ECONOMIC RIGHTS OF PERFORMERS IN RESPECT OF THEIR LIVE
PERFORMANCES
Argentina :
The performer shall have the exclusive right to authorize or
prohibit :
(a) the broadcasting of his live performances;
(b) the communication of his live performances to the
public; the fixation of his live performances.
Canada :
The following... should be included in the New Instrument : ...
Economic rights for performers in their live performances...
China :
NCAC supports the proposals in the memorandum prepared by the
International Bureau for the third session, Committee of Experts on
the New Instrument... on the following topics :
economic rights of performers in their live performances
(paragraph 41)*3,...
European Community and its Member States :
Performers shall enjoy the exclusive right to authorise the
fixation of their performances. Performers shall enjoy the
exclusive right to authorise the broadcasting and the
communication to the public of their performances except
where the performance [is itself already a broadcast
performance or] is made from a fixation.
It has to be underlined that, in line with the views put forward
by the European Community and its Member States on previous occasions,
the economic rights being proposed for performers cover all
performances 4 and fixations (unless otherwise indicated), whether of
an audio, visual or audiovisual character.
3 See WIPO document INR/CE/III/2, page 17.
4 The foregoing paragraph is also reproduced in Subchapter A
(Reproduction), Subchapter C (Distribution including Importation) and
Subchapter D (Rental) of this Chapter.
154
INR/CE/V/ 11
page 9
Japan :
With respect to live performances, performers shall
enjoy the exclusive right of authorizing :
(a) the fixation of their live performance;
(b) the broadcasting and the communication to the
public of their live performance,
Any Contracting Party may, in relation to the
rights conferred under to III,*5 provide for conditions,
limitations, exceptions and reservations to the extent
permitted by the Rome Convention.
Sudan:
Each contracting state undertakes to protect the
following rights of performers :
(b) the economic rights or the rights to
authorize in respect of live performances, in particular
:
(i) the broadcasting of their performances,
(ii) the communication to the public of their
performances, and,
(iii) the fixation of their unfixed
performances;...
United States of America :
Performers shall have the exclusive right to
authorize :
(a) the broadcasting or other communication to
the public of their live musical performances; and
(b) the fixation of their live musical
performances.
This Article provides for the rights of musical performers in,
respect of live musical performances. It extends the TRIPs obligation
by protecting performers against unauthorized fixations of their live
musical performances, through videotaping as well as audiotaping. The
Article provides a sound basis for ensuring protection at the
international level for performers against the "bootlegging" of their
performances.
Paragraph (a) provides that musical performers shall have the
right to authorize or prohibit the broadcasting or any other
communication to the public of their unfixed performances.
Parts I to III of the proposals of Japan cover "Economic Rights of
Performers with Respect to Their Live Performance," "Economic Rights
of Performers with Respect to Their Performance Fixed in Phonograms"
and "Economic Rights of Producers of Phonograms in Their Phonograms,"
respectively. This paragraph is also reproduced in Chapter VI
(Economic Rights of Performers in Their Fixed Performances),
Subchapter I (Exceptions and Limitations), and in, Chapter VII (Rights
of Producers of Phonograms, Subchapter I (Exceptions and Limitations)
155
INR/CE/V./11
page 10
Paragraph (b) recognizes the ability of musical performers to
authorize or prohibit fixation in any form of their unfixed
performances.
Uruguay :
Performers shall enjoy their exclusive right to
authorize or prohibit.,
(a) the broadcasting of their live performances;
(b) the communication to the public of their live
performances;
(c) the recording of their live performances.
156
INR/CE/V/11
page 11
VI. A. ECONOMIC RIGHTS OF PERFORMERS IN RESPECT OF THEIR FIXED
PERFORMANCES : REPRODUCTION
Argentina :
Any Performer shall have the exclusive right, in
relation to his Performance fixed on a phonogram or in an
audiovisual work, to authorize the following acts.-
(a) direct or indirect reproduction of the fixation of his
performance,
Brazil
:
Patrimonial rights of performers for their fixed
interpretations or performances and of the producers of
phonograms :
1. The protection of performers conferred by the
present instrument includes the exclusive right to
authorize the following actions.
(a) direct or indirect reproduction of the fixation of
the interpretation or performance;...
Canada :
The following... should be included in the New Instrument :...
Economic rights for performers in their performances fixed in
phonograms... 6
China :
NCAC is in favor of granting the following rights to the
performances in their performances fixed in phonograms and to the :
producers of phonograms in their phonograms :
(a) right of reproduction,
NCAC suggests that, the protection of the rights of performers in
their performances fixed in audiovisual forms... should be taken into
consideration on the agenda of WIPO. If they could not be included in
the New Instrument at this stage, they should be studied and discussed
by a special committee of experts which will be organized by WIPO for
drafting a new international agreement.
6 The foregoing text is also reproduced in Subchapter C
(Distribution, including Importation), Subchapter D (Rental),
Subchapter E (Adaptation/Alteration), Subchapter F (Broadcasting),
Subchapter G (Communication to the Public) and Subchapter H (Digital
Transmission) of this Chapter.Importation) of this Chapter.
7 The foregoing paragraph is also reproduced in Subchapter C
(Distribution, including.
157
INR/CE/V/11
page 12
European Community and its Member States :
Performers shall enjoy the exclusive right to
authorise the direct or indirect reproduction of a
fixation of their performance.
It has to be underlined that, in line with the views put forward
by the European Community and its Member States on previous occasions,
the economic rights being proposed for performers cover all
performances and fixations (unless otherwise indicated), whether of an
audio, visual or audiovisual character.8
Japan :
With respect to performance fixed in a phonogram,
performers shall enjoy the exclusive right of authorizing the
direct or indirect reproduction of the fixation of their
performance.
Sudan :
Each contracting state undertakes to protect the following
rights of performers:
(c) the economic rights or the rights to authorize in
respect of fixed performances, in particular:
(i) the reproduction of their fixed performances,...
United States of America:
Article 3. Economic Rights of Performers in their Fixed
Musical Performances:
In respect of phonograms, musical performers and their
successors in interest shall have the exclusive right to
authorize:
(a) the direct or indirect reproduction of their fixed
performances;
This Article provides for the rights of musical performers solely
in respect of their performances fixed in phonograms. It does not
extend to musical performances in audiovisual works or to any
fixations of such audiovisual works.
8 The foregoing paragraph is also reproduced in Chapter V
(Economic Rights of Performers in Respect of Their Live Performances),
as well as in Subchapter C (Distribution, including Importation) and
in Subchapter D (Rental) of this Chapter.
158
INR/CE/V/11
page 13
The rights under this Article extend to both the performer and to
his successor in interest. Thus, rights are transferable by the
Performer, for example as part of a specific transfer or by virtue of
a contract of employment. 9
Under paragraph (a) the rights extend to both the direct and the
indirect reproduction of the fixed performance. Thus, copying the
fixation of the performance either from a phonogram or from a
broadcast including a phonogram in which the performance is fixed is
covered.
Uruguay:
Economic Rights of Performers in their Performances Recorded
on Phonograms
Performers shall enjoy the exclusive right to authorize
or prohibit the direct or indirect reproduction of fixations
of their performances.
_ The foregoing two paragraphs are also reproduced in Subchapter C
(Distribution, including Importation), Subchapter D (Rental),
Subchapter E (Adaptation/Alteration), Subchapter F (Broadcasting),
Subchapter G (Communication to the Public) and Subchapter H (Digital
Transmission) of this Chapter.
160
INR/CE/V/11
page 14
VI. B. ECONOMIC RIGHTS OF PERFORMERS IN RESPECT OF THEIR FIXED
PERFORMANCES: PRIVATE COPYING
Argentina:
Where the national legislation of countries party to
the Instrument recognizes a right to remuneration for Private
copying for personal use in favor of the authors of literary
and artistic works, the countries party to the Instrument
shall be under the obligation to specify a, similar right to
remuneration in favor of performers whose performances
incorporated in phonograms or in audiovisual works are
presumed to have been privately reproduced for personal use.
The remuneration shall be paid by those who manufacture
reproduction equipment or blank recording material (with the
exception of such equipment and material intended for export)
or by those who import such equipment or material (except
where the importation is effected by a person as part of his
luggage for his own, non-commercial use).
Collection shall be carried out by a collective
administration organization, irrespective of whether it is
private or public (governmental).
It shall be a matter for the national legislation of
the countries party to the Instrument to provide for
exceptions to the payment of remuneration in the case of
reproduction equipment or blank recording material regarding
which it may reasonably be supposed that it will be used for
purposes other than the private copying for personal use of
performances fixed on phonograms or in audiovisual works,
such as the equipment and material used by producers of
phonograms and audiovisual works.
Brazil:
With reference to the private reproduction of
phonograms, for personal purposes, Contracting Parties shall
ensure performers and producers of phonograms with a right to
remuneration, through a payment to be demanded over the
equipment of reproduction or the virgin supporters, or over
both, for their use in the said reproduction, whenever
domestic legislation confers rights o same kind to the
authors of literary and artistic works:
(a) this remuneration shall be demanded from
manufacturers or importers of the equipment and products used
in the reproduction of supports with commercial purposes,
(b) rights referred to in paragraph 1 above will be
exerted through collective management.
The proposal of a monetary burden per private copies was based on
Article 9, paragraph 2 of the Berne Convention, to the extent that
reproductions may be prejudicial to author's legitimate interests. It
is necessary to extend to the authors of works under the protection of
160
INR/CE/V/11
page 15
the Berne Convention the equivalent rights to be conceded by the
Possible Instrument to the performers and producers of phonograms. 10
European Community and its Member States:
As regards a right to remuneration for private copying for
performers and phonogram producers (paragraphs 65, 66, 69 and 70 of
the Memorandum of the International Bureau, document INR/CE/III/2),
the European Community and its Member States are not submitting any
proposal. Private copying has, so far, not been the object of
legislative harmonisation within the European Community and, at this
stage, it reserves its position with regard to the possibly, substance
of provisions in relation to this matter. In any event, if provisions
on private copying were considered to be appropriate, a parallel
treatment of the subject in the Berne Protocol and the New Instrument
would be required. Moreover, the draft contained in the WIPO
memorandum is considered unsatisfactory as it fails to guarantee equal
treatment to all countries which would become parties to the
Instrument.*10
United States of America:
The United States has not submitted any proposed treaty language
dealing with private copying for either the Berne Protocol or the New
Instrument. We believe that consideration of such a provision at this
point is premature. Because any private copying regime will implicate
the exercise of the author's exclusive rights by the use of digital
transmissions, the treatment of such transmissions in both the
Protocol and the New Instrument should be resolved first. Until the
scope and interaction of all of the exclusive rights in the digital
environment is clear, it is impossible to evaluate the impact or
appropriateness of a private copying regime. In particular, one of
the most important issues to resolve in correction with digital
transmissions is the distinction between public and private uses.
Depending on how the concept of "public" is defined in association
with a particular right or rights, a levy for private copying may
either be inappropriate or unnecessary, or may need to be
circumscribed in ways that are not apparent at this stage of
deliberation.
Uruguay:
Performers shall enjoy the right to remuneration for
the private reproduction of their performances, payable to
them from a charge on the reproduction equipment or blank
recording material, or both, normally used for such
reproduction.
10* The foregoing text is also reproduced in Chapter VII (Rights of
Producers of Phonograms),
INR/CE/V/11
page 16
VI.C. ECONOMIC RIGHTS OF PERFORMERS IN RESPECT OF
THEIR FIXED PERFORMANCES: DISTRIBUTION, INCLUDING
IMPORTATION
Argentina:
4. Economic Rights of Performers in their Fixed
Performances
Any Performer shall have the exclusive right, in
relation to his performance fixed on a phonogram or in
an audiovisual work, to authorize the following acts
:...
(b) distribution of originals or copies of the
fixation of the performance by sale or other transfer of
ownership or by rental, public lending or other transfer
of possession; the right of distribution shall not be
exhausted within the country or, where two or more
countries have formed a regional economic integration
organization, within that regional economic integration
organization, except where the first distribution of the
original or any copy of the fixation within the country
or within any of the countries of the regional
organization is effected with the authorization of the
performer; in that case the performer's authorization
shall not affect his rental and public lending rights,
(c) the right of distribution shall in particular
include the right to authorize the importation of copies
of fixations of performances...
6. Limitations on the Rights of Performers
(b) The, right recognized in Article 4(c) shall
not apply where the importation is effected by a person
as part of his luggage for his own, noncommercial use.
Brazil:
Patrimonial rights of performers for their fixed
interpretations or performances and of the producers
of phonograms:
1. The protection of performers conferred by the
present instrument includes the exclusive right to
authorize the following actions:
(b) distribution of the original and of copies of
the fixation of the interpretation or performance
through selling or by any other manner of property
transfer,...
11 The foregoing text is also reproduced in Chapter D (Rental) of
this Chapter.
162
INR/CE/V/11
page 17
Canada:
The following... should be included in the New Instrument:...
Economic rights for performers in their performances fixed in
phonograms... *12
China:
NCAC is in favor of granting the following rights to the
performers in their performances, fixed in phonograms and to the
producers of phonograms in their phonograms-
(b) right of distribution...
NCAC suggests that the protection of the rights of performers in
their performances fixed in audiovisual forms... should be taken into
consideration on the agenda of WIPO. If they could not be included in
the New Instrument at this stage, they should be studied and discussed
by a special committee of experts which will be organized by WIPO for
drafting a new international agreement. 13
NCAC could not agree to grant the following rights to the
performers in their fixed performances and to the producers of
phonograms in their phonograms:
(a) right of importation...
European Community:
(1) Performers shall enjoy the exclusive right to
authorise the making available to the public of the original
and copies of a fixation of their performance through sale or
other transfer of ownership.
(2) The right provided for in paragraph 1 shall not be
exhausted within a country or within a regional economic
integration area--except by the first sale or other transfer
of ownership of the original or copies of the fixation of the
performance in the country--or in any of the countries of the
regional economic integration area where the law of that
regional economic integration area so provides- by or
pursuant to an authorisation of the performer, and only in
respect of such original and copies of the fixation.
It has to be underlined that, in line with the views put forward
by the European Community and its Member States on previous occasions,
the economic rights being proposed
12. The foregoing text is also reproduced in Subchapter A
(Reproduction), Subchapter D (Rental), Subchapter E
(Adaptation/Alteration), Subchapter F (Broadcasting), Subchapter G
(Communication to the Public) and Subchapter H (Digital Transmission)
of this Chapter.
13. The foregoing paragraph is also reproduced in Subchapter A
(Reproduction) of this Chapter.
163
INR/CE/V/11
page 18
for performers cover all performances and fixations (unless otherwise
indicated), whether of an audio, visual or audiovisual character. 14
Japan:
(1) With respect to performance fixed in a
phonogram, performers shall enjoy the exclusive right
to, authorize making available to the public the
original or copies of the fixation of their performance
in a tangible form through sale or other transfer of
ownership.
(2) The right provided for in paragraph (1) shall
not extend to the distribution-after the first act of
transfer of ownership by or pursuant to an authorization
of the owner of the right concerned
(3) Notwithstanding paragraph (2), a Contracting
Party may by its legislation restrict circumstances
giving rise to exhaustion of the right provided for in
paragraph (a) for the Contracting Party concerned
Sudan:
Each contracting state undertakes to protect the
following rights of performers: ...
(c) the economic rights or the rights to
authorize in respect of fixed performances, in
particular: ...
(ii) the distribution of their fixed performances
through sale or other transfer of ownership, ...
United States of America:
Article 3. Economic Rights of Performers in their Fixed
Musical Performances
In respect of phonograms, musical performers and
their successors in interest shall have the exclusive
right to authorize:
(b) the making available of the original or
copies of their fixed performances through sale, rental,
or other transfer of ownership or possession including
by transmission,*15
14 The foregoing paragraph is also reproduced in Chapter V (Economic
Rights of Performers in Respect of Their Live Performances),
Subchapter A (Reproduction) and Subchapter D (Rental) of this Chapter.
15 The foregoing text is also reproduced in Subchapter D (Rental) and
Subchapter H (Digital Transmission) of this Chapter.
INR/CE/V/11
page 19
(c) the importation, including by transmission, of the
original or copies of their fixed performances, even
following any sale or other transfer of ownership of the
copies by or pursuant to authorization and irrespective of
whether the imported copies were made with or without
authorization,
This Article provides for the rights of musical performers solely
in respect of their performances fixed in phonograms. It does not
extend to musical performances in audiovisual works or to any
fixations of such audiovisual works.
The rights under this Article extend to both the performer and to
his successor in interest. Thus, rights are transferable toy the
performer, for example as part of a specific transfer or by virtue of
a contract of employment... 17
Paragraph (b) provides for the distribution right, including the
right to distribute the fixed performance by a transmission over a
computer network or by other means of transmission that results in the
reproduction of the fixation in a remote location. 18
Paragraph (c) provides for the recognition of the importation
right including the right of importation by transmission. It
specifies that this right extends to authorized as well as
unauthorized copies. 19
Article 6. Exceptions to Rights
(2) Except in the case of rental, national
legislation of a Contracting Party may provide that
the right specified in Articles 3(b) and 4(b) does
not apply in respect of any copy of any phonogram
which has been sold or the ownership of which has
been otherwise transferred in its territory by or
pursuant to authorization. *20
(3) Notwithstanding Articles 3 (b) and 4
(b), any Contracting Party that, on April 15, 1994,
had and continues to have in force a system for
equitable remuneration of right holders for the
rental of copies of
16 The foregoing paragraph is also reproduced in Subchapter H
(Digital Transmission) of this Chapter.
17 The foregoing two paragraphs are also reproduced in Subchapter A
(Reproduction), Subchapter D (Rental), Subchapter E
(Adaptation/Alteration), Subchapter F (Broadcasting),Subchapter G
(Communication to the Public) and Subchapter H (Digital Transmission)
of this Chapter.
18 The foregoing paragraph is also reproduced in Subchapter D (Rental)
and Subchapter H (Digital Transmission) of this Chapter.
19 The foregoing paragraph is also reproduced in Subchapter H (Digital
Transmission) of this Chapter.
20 The foregoing, paragraph is also reproduced in Subchapter D
(Rental) of this Chapter as well as in Chapter VII (Rights of
Producers of Phonograms), Subchapter C (Distribution, including
Importation) and Subchapter D (Rental).
165
INR/CE/V/11
page 20
phonograms, may maintain such a system for a period
of 3 years from the entry into force of this
Agreement.* 21
(4) The right of importation in Article
3(c) and 4(c) does not apply where the importation
is effected by a person solely for his personal and
non-commercial use as part of his personal luggage.
Paragraph (2) permits a Contracting Party to provide for national
or domestic exhaustion of the distribution right, except for the
rental right. It rules out the possibility of international
exhaustion of the distribution right. 22
Paragraph (3) includes a "grandfather" clause for those
Contracting Parties who, as of April 15 1994 (the date of signature of
the TRIPs Agreement in Marrakech), had in place a right of
remuneration to compensate right holders for the rental of their
phonograms. This provision is modeled on the TRIPs Agreement, but
provides for stronger protection by phasing out the, ability to
maintain such a provision after 3 years from entry into force of this
Instrument. 21
Paragraph (4) permits Contracting Parties to exempt the
importation of a small number of copies of phonograms from the
importation right so long as those copies are included by an
individual in his personal baggage for noncommercial use. This
exception would therefore, not extend to any acts of importation by
transmission.
Uruguay:
Economic Rights of Performers in Their
Performances Recorded on Phonograms
Performers shall enjoy the exclusive right to
authorize or prohibit the making available to the
public (distribution) of the originals and copies
of their performances by sale or other transfer of
ownership.
The right provided for in the foregoing
paragraph shall not be exhausted within a country
or within a regional economic integration area
except by first sale or other transfer of ownership
of the original or copies of the performance,
effected by the performer or with his authorization
aid only in respect of the said original and copies
of the performance, either within the country
concerned or within any of the countries of the
regional economic integration area, if the
legislation of the said regional economic
integration area so provides.
21 The foregoing paragraph is also reproduced in Subchapter D (Rental)
of this Chapter as well as in Chapter VII (Rights of Producers of
Phonograms), Subchapter C (Distribution, including Importation) and
Subchapter D (Rental).
22 The foregoing Paragraph is also reproduced in Subchapter D (Rental)
of this Chapter, as well as in Chapter VII (Rights of Producers of
Phonograms), Subchapter C (Distribution, including Importation) and
Subchapter D (Rental).
166
INR/CE/V/11
page 21
Performers shall enjoy the exclusive right to
authorize or prohibit the importation of the
originals or copies of fixations of their
performances, even after sale or other transfer of
ownership.
167
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page 22
VI. D. ECONOMIC RIGHTS OF PERFORMERS IN RESPECT OF
THEIR FIXED PERFORMANCES: RENTAL
Argentina:
4. Economic Rights of Performers in their Fixed
Performances
Any performer shall have the exclusive right, in
relation to his performance fixed on a phonogram or in an
audiovisual work to authorize the following acts: ...
(b) distribution of originals or copies of the
fixation of the performance by sale or other transfer of
ownership or by rental, public lending or other transfer of
possession; the right of distribution shall not be exhausted
within the country or, where two or more countries have
formed a regional economic integration organization, within
that regional economic integration organization, except where
the first distribution of the original or any copy of
the fixation within the country or within any of the
countries of the regional organization is effected with the
authorization of the performer; in that case the performer's
authorization shall not affect his rental and public lending
rights,... 23
6. Limitations on the Rights of Performers
(a) Without prejudice to the provisions of Article
4(b), any country that has a system in force for the
equitable remuneration of performers for the rental of copies
of fixations of performances may retain it, on condition that
the commercial rental of such copies does not place a
material limitation on the exercise of the performer's
exclusive right of reproduction.
Brazil:
Patrimonial rights of performers for their fixed
interpretations or performances and of the producers of
phonograms.
1. The protection of performers conferred by the
present instrument includes the exclusive right to
authorize the following actions:
(c) rental of the original and copies of the
interpretation or performance...
23 The foregoing text is also reproduced in Subchapter C
(Distribution, including Importation) of this Chapter.
168
INR/CE/V/11
page 23
Canada:
The following... should be included in the New Instrument:
Economic rights for performers in their performances fixed in
phonograms ... *24
European Community and its Member States:
Performers shall enjoy the exclusive right to authorise the
rental of fixations of their performances, even after their
distribution by or pursuant to an authorisation of the
performer,
It has to be underlined that, in line with the views put forward
by the European Community and its Member States on previous occasions,
the economic rights being proposed for performers cover all
performances and fixations (unless otherwise indicated), whether of an
audio, visual or audiovisual character. 25
Japan:
With respect to performance fixed in a
phonogram, performers shall enjoy the exclusive
right of authorizing the commercial rental of the
original or copies of the fixation of their
performances even after distribution of the
original or copies of such phonogram by them or
pursuant to their authorization, If on 15 April
1994 a Contracting Party has in force a system of
equitable remuneration of right holders in respect
of the commercial rental of the fixation of their
performances, it may maintain such system provided
that the commercial rental of the fixation of their
performances is not giving rise to the material
impairment of the exclusive rights of reproduction
of right holders.
Sudan:
Each contracting state undertakes to protect
the following rights of performers:
(c) the economic rights or the rights to
authorize in respect of fixed performances, in
particular: ...
(iii) the rental of fixed performances,
24 The foregoing text is also reproduced in Subchapter A
(Reproduction), Subchapter C (Distribution, including Importation),
Subchapter E (Adaptation/Alteration), Subchapter F (Broadcasting),
Subchapter G (Communication to the Public) and Subchapter H (Digital
Transmission) of this Chapter.
25 The foregoing paragraph is also reproduced in Chapter V (Economic
Rights of Performers in Respect of Their Live Performances) and in
Subchapter A (Reproduction) and Subchapter C (Distribution, including
Importation) of this Chapter.
169
INR/CE/V/11
page 24
United States of America:
Article 3. Economic Rights of Performers in their Fixed
Musical Performances
In respect of phonograms, musical performers and their
successors in interest shall have the exclusive right to
authorize: ...
(b) the making available of the original or copies of their
fixed performances through sale, rental, or other transfer of
ownership, or possession including by transmission, ... 26
This Article provides for the rights of musical performers solely
in respect of their performances fixed in phonograms. It does not
extend to musical performances in audiovisual works or to any
fixations of such audiovisual works.
The rights under this Article extend to both the performer and to
his successor in interest. Thus, rights are transferable by the
performer, for example as part of a specific transfer or by virtue of
a contract of employment... 27
Paragraph (b) provides for the distribution right, including the
right to. distribute the fixed performance by a transmission over a
computer network or by other means of transmission that results in the
reproduction of the fixation in a remote location. 26
Article 6. Exceptions to Rights
(2) Except in the case of rental, national
legislation of a Contracting Party may provide that
the right specified in Articles 3 (b) and 4(b) does not
apply in respect of any copy of any phonogram which
has been sold or the ownership of which has been
otherwise transferred in its territory by or pursuant to
authorization.* 28
(3) Notwithstanding Articles 3(b) and 4(b), any
Contracting Party that, on April 15, 1994, had and
continues to have in force a system for equitable
remuneration of right holders for the rental of copies
of
26 The foregoing text is also reproduced in Subchapter C
(Distribution, including Importation) and Subchapter H (Digital
Transmission) of this Chapter.
27 The foregoing two paragraphs are also reproduced in Subchapter A
(Reproduction), Subchapter C (Distribution, including Importation),
Subchapter E (Adaptation/Alteration), Subchapter F (Broadcasting),
Subchapter G (Communication to the Public) and Subchapter H (Digital
Transmission) of this Chapter.
28 The foregoing paragraph is also reproduced in, Subchapter C
(Distribution, including Importation) of this Chapter as well as in
Chapter VII (Rights of Producers of Phonograms), Subchapter C
(Distribution, including Importation) and Subchapter D (Rental).
170
INR/CE/V/11
page 25
phonograms, may maintain such a system for a period of 3
years from the entry into force of this Agreement. 29
Paragraph (2) permits a Contracting Party to provide for national
or domestic exhaustion of the distribution right, except for the
rental right. It rules out the possibility of international
exhaustion of the distribution right. 29
Paragraph (3) includes a "grandfather, clause for those
Contracting Parties who, as of April 15, 1994 (the date of signature
of the TRIPs Agreement in Marrakech), had in place a right of
remuneration to compensate right holders for the rental of their
phonograms. This provision is modeled on the TRIPs Agreement, but
provides for stronger protection by phasing out the ability to
maintain such a provision after 3 years from entry into force of this
Instrument. 29
Uruguay
Performers shall enjoy the exclusive right to authorize or
prohibit the rental of the originals and copies of fixations
of their performances.
29 The foregoing paragraph is also reproduced in Subchapter C
(Distribution, including Importation) of this Chapter as well as in
Chapter VII (Rights of Producers of Phonograms),
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VI.E.ECONOMIC RIGHTS OF PERFORMERS IN RESPECT OF THEIR
FIXED PERFORMANCES: ADAPTATION/ALTERATION
Argentina:
Any performer shall have the exclusive right,
in relation to his performance fixed on a phonogram or
in an audiovisual work, to authorize the following
acts: ...
(d) modification of the fixation of the
performance,...
Canada:
The following... should be included in the New Instrument: ...
Economic rights for performers in their performances fixed in
phonograms... 30
China:
NCAC could not agree to grant the following rights to the
performers in their fixed performances and to the producers of
phonograms in their phonograms: ...
(b) right of adaptation...
European Community and its Member States:
No proposal is submitted at this stage as regards the granting of
a right to performers to control the modification of their
performances (often referred to as a possible "adaptation right")..
The European Community and its Member States continue to examine the
possible scope of such a right. In light of further discussions on
the impact of new technologies, a proposal to grant performers a
"modification right" will be considered.
Japan:
The Government of Japan reserves its position on other items such
as..."Adaptation Rights"...
United States of America:
Economic Rights of Performers in their Fixed Musical
Performances
In respect of phonograms, musical performers and their
successors in interest shall have the exclusive right to
authorize:
(d) the adaptation of their fixed performances,
30 The foregoing text is also reproduced in Subchapter A
(Reproduction), Subchapter C (Distribution, including Importation),
Subchapter D (Rental), Subchapter F (Broadcasting), Subchapter G
(Communication to the Public) and Subchapter H (Digital Transmission)
of this Chapter.
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This Article provides for the. rights of musical performers
solely in respect of their performances fixed in phonograms. It does
not extend to musical performances in audiovisual, works or to any
fixations of such audiovisual works.
The rights under this Article extend to both the performer and to
his successor in interest. Thus, nights are transferable by the
performer, for example as part of a specific transfer or by virtue of
a contract of employment... 31
The adaptation right is becoming an increasingly important aspect
of the protection of phonograms. Digital technology and techniques
such as "sampling" have made it possible to excerpt and modify
portions of performances with ease. Recognition of an adaptation
right that extends to such uses is important in the digital age...
Uruguay:
Performers shall enjoy the exclusive right to
authorize or prohibit any substantive alteration to
their performances,
31 The foregoing two paragraphs are also reproduced in Subchapter A
(Reproduction), Subchapter C (Distribution, including Importation),
Subchapter D (Rental), Subchapter F (Broadcasting), Subchapter G
(Communication to the Public) and Subchapter H (Digital
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VI. F.ECONOMIC RIGHTS OF PERFORMERS IN RESPECT OF THEIR
FIXED PERFORMANCES: BROADCASTING
Argentina:
4. Economic Rights of Performers in, their Fixed
Performances
Any performer shall have the exclusive right, in
relation to his performance fixed on a phonogram or in
an audiovisual work, to authorize the following acts:,
(e) communication of the fixed performance to the
public by any means.
6. Limitations on the Rights of Performers
(c) It shall be a matter for the national
legislation of countries) party to the Instrument to
provide for the limitation of the rights specified in
Article 4(e) above to the right to equitable
remuneration.
(d) The right to be introduced by national
legislation under Article 4(e) above shall not apply in
the case of communication to the public of fixations of
performances by digital means in one form of
transmission on demand to a place and at a time
specified by the person or entity making the demand, or
where the scale or specific nature of the proposed
digital service jeopardizes the normal exploitation of
the performances and unjustifiably prejudices the
legitimate interests of the performers, as with multi-
channel subscription systems. Unless otherwise agreed,
reproduction. distribution and importation rights shall
be exercised by the producer of the phonogram or of the
audiovisual work
(e) It shall be a matter for the national
legislation of countries party. to the Instrument to
require that the rights provided for in Article 4(e) be
administered by collective administration organizations,
and that the royalties be distributed to the performers
concerned after deduction of administrative costs and
any other allocations for other purposes that have been
authorized by the performers concerned or the
organizations representing them... 32
32 The foregoing text is also reproduced Sub-chapter G
(Communication to the Public) and Subchapter H (Digital Transmission)
of this Chapter.
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Brazil:
Patrimonial rights of performers for their fixed
interpretations or performances and of the producers of
phonograms:
1. The protection of performers conferred by the
present instrument includes the exclusive right to
authorize the following actions: ...
(d) communication to the public of the fixation
of the interpretation or performance, including
broadcasting or public performance. 33
Canada:
The following... should be included in the New Instrument: ...
Economic rights for performers in their performances fixed in
phonograms... 34
China:
NCAC is in favor of granting the following rights to the
performers in their performances fixed in phonograms and to the
producers of phonograms in their phonograms:
(c) right of broadcasting.
European Community and its Member States:
Performers and producers of phonograms shall enjoy
the right to a single equitable remuneration in the cave
of the direct or indirect use of phonograms published
for commercial purposes, or reproductions of such
phonograms, for broadcasting or for any communication to
the public. Contracting Parties may establish in their
legislation that the single equitable remuneration shall
be claimed from the user by the performers or by the
producers of the phonograms or by both, and shall be
shared between the relevant performers and producers.
33 The foregoing text is also reproduced in Subchapter G
(Communication to the Public) of tills Chapter.
34 The foregoing text is also. reproduced in, Subchapter A
(Reproduction), Subchapter C (Distribution including Importation),
Subchapter D (Rental), Subchapter E (Adaptation/Alteration),
Subchapter G (Communication to the Public) and Subchapter H (Digital
Transmission) of this Chapter.
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Contracting Parties may, in the absence of
agreement between the performers and the producers of
the phonograms, lay down the conditions as to the
sharing of this remuneration between them. 35
JAPAN:
(1) With respect to performance fixed in a
phonogram performers shall enjoy the exclusive right of
authorizing the broadcasting and the communication to
the public of their fixed performance
(2) Each Contracting Party may limit the right
provided for in, paragraph (7) to a right to equitable
remuneration by its legislation. 36
Sudan:
Each contracting state undertakes to protect the
following rights of performers: ...
(c) the economic rights or the rights to
authorize in respect (?)fixed performances in
particular: ...
(iv) the broadcasting of their fixed performances...
United States of America:
Article 3. Economic Rights of Performers in their Fixed
Musical Performances
In respect of phonograms, musical performers and
their successors in interest shall have the exclusive
right to authorize: ...
(e) the communication to the public of their fixed
performances. 36
This Article provides : for the rights of musical performers
solely in respect of their performances fixed in phonograms. It does
not extend to musical performances in audiovisual works or to any
fixations of such audiovisual works,
35 The foregoing text is also reproduced in Subchapter G
(Communication to the Public) of this Chapter as well as in Chapter
VII (Rights of Producers of Phonograms) Subchapter F (Broadcasting)
and Subchapter G (Communication to the Public).
36 The foregoing text is Also reproduced in Subchapter G
(Communication to the Public) and Subchapter H (Digital Transmission)
of this Chapter.
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Brazil:
Patrimonial rights of performers for their fixed
interpretations or performances and of the producers of
phonograms:
1. The protection of performers conferred by the
present instrument includes the exclusive right to
authorize the following actions: ...
(d) communication to the public of the fixation
of the interpretation or performance including
broadcasting or public performance 33
Canada:
The following... should be included in the New Instrument: ...
Economic rights for performers in their performances fixed in
phonograms... 34 China:
China:
NCAC is in favor of granting the following rights to the
performers in their performances fixed in phonograms and to the
producers of phonograms in their phonograms:
(c) right of broadcasting.
European Community and its Member States:
Performers and producers of phonograms shall enjoy
the right to a single equitable remuneration in the case
of the direct or indirect use of phonograms published
for commercial purposes, or reproductions of such
phonograms, for broadcasting or for any communication to
the public. Contracting Parties may establish in their
legislation that the single equitable remuneration shall
be claimed from the user by the performers or by the
producers of the phonograms or by both, and shall be
shared between the relevant performers and producers.
33 The foregoing text is also reproduced in Subchapter G
(Communication to the Public) of tills Chapter.
34 The foregoing text is also reproduced in Subchapter A
(Reproduction), Subchapter (Distribution, including Importation),
Subchapter D (Rental), Subchapter E (Adaptation/Alteration),
Subchapter G (Communication to Public) and Subchapter H (Digital
Transmission) of this Chapter.
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Contracting Parties may, in the absence of
agreement between the performers and the producers of
the phonograms, lay down the conditions as to the
Sharing. Of this remuneration between them. 35
Japan:
With respect to performance fixed in a phonogram,
performers shall enjoy the exclusive right of
authorizing the broadcasting and the communication to
the public of their fixed performance.
2) Each Contracting Party may limit the right
provided for in paragraph (1) to a right to equitable
remuneration by its legislation. 36
Sudan:
Each contracting state undertakes to protect the
following rights of performers: ...
(c) the economic rights or the rights to
authorize in respect of fixed performances, in
particular: ...
(iv) the broadcasting of their fixed
performances...
United States of America:
Article 3. Economic Rights of Performers in their Fixed
Musical Performances
In respect of phonograms, musical performers and their
successors in interest shall have the exclusive right to
authorize: ...
(e) the communication to the public of their fixed
performances 36.
This Article provides for the rights of musical performers solely
in respect of their performances fixed in phonograms. It does not
extend to musical performances in audiovisual works or to any
fixations of such audiovisual works.
35 The foregoing "text is also reproduced in Subchapter G
(Communication to the Public) of this Chapter as well as in Chapter,
VII (Rights of Producers of Phonograms), Subchapter F (Broadcasting)
and Subchapter G (Communication to the Public).
36 The foregoing text is also reproduced in Subchapter G
(Communication to the Public) and Subchapter H (Digital Transmission)
of this Chapter.
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The rights under this Article extend to both the performer and to
his successor in interest. Thus, rights are transfer-able by the
performer, for example as part of a specific transfer or by virtue of
a contract of employment... 37
The communication to the public of a phonogram is an increasingly
important act, especially given the ability of digital technology to
ensure the creation of perfect copies of works. It must be noted,
however, that this right may be limited to only certain communications
to the public in digital form under Article 6(5). 38
Article 6. Exceptions to Rights
(5) With respect to the right of communication to
the public of phonograms in Articles 3(e) and 4(e),
Contracting Parties may:
(i) limit the right to communication by digital
means;
(ii) exclude from the scope of the right (a)
communication which are neither part of an
interactive service nor part of a subscription
service; (b) communications which are not part of
an interactive service and which are part of a
subscription service, provided such communications
are also simultaneously made available to the
public on a non-subscription basis; and (c)
communications to or within a business
establishment for use in the ordinary course of its
business; and
(iii) with respect to communications which are part
of a non-interactive non-exempt subscription
service, limit the right to a right equitable
remuneration where the structure of programming
ensures that such a limitation will not conflict
with a normal exploitation of the phonogram and
will not unreasonably prejudice the legitimate
interests of the right holder.
Paragraph (5) provides that a Contracting party may limit the
obligation to provide rights of audio communication to the public for
phonograms in Articles 3(e) and 4(e) to only communication by digital
means. It permits a Party to exclude from the right those
communication that do not form a part of an interactive or a
subscription service and those communications which are included as
part of subscription service but which are also made available
simultaneously to the public on a non-subscription basis. In effect,
this means that the right need not be applied to "broadcast"
transmissions for which no fee is charged and which are not
interactive in nature. It also permits Parties to exclude from the
right (1) subscription transmissions such as those provided by radio
networks to local stations that
37 The foregoing two paragraphs are also reproduced in Subchapter A
(Reproduction), Subchapter C (Distribution, including Importation)
Subchapter D (Rental), Subchapter E (Adaptation/Alteration),
Subchapter G (Communication to the Public) and Subchapter H (Digital
Transmission) of this Chapter.
38 The foregoing paragraph is also reproduced in Subchapter G
(Communication to the Public) and Subchapter H (Digital Transmission)
of this Chapter.
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transmit them simultaneously free to the public (2)cable
retransmissions of radio stations also available free over the air,and
(3) those communications made to a business or with in a business
establishment for use in the ordinary course of business. Thus, there
is no requirement for Contracting Parties to grant a right for
phonogram Performers or producers under this provision with respect to
a Communication by background music service to a private business
establishment.
It is equally clear that a Contracting Party may make A further
"minor" or "small" limitations on the rights of public communication
under this paragraph so long as the exceptions do not exceed those
permitted under paragraph (1).
In respect of non-interactive non-exempt subscriptions services,
Contracting Parties may limit the right of audio communication of
phonograms to the public by digital means to a right of equitable
remuneration where the structure of programming ensures that such a
limitation will not conflict with a normal exploitation of the
phonogram and, will not unreasonably prejudice the legitimate
interests of the right holder. When national treatment is dealt with
the Committee of Experts will need to examine how a Contracting Party
would extend its national treatment obligation in respect of another
Contracting Party that has chosen to limit rights in the manner
permitted in paragraph (5). 39
Uruguay:
Economic Rights of Performers in Their Performances
Recorded on Phonograms
....
Performers shall enjoy the right to equitable
remuneration for the broadcasting or communication to
the public of their performances.
Performers shall enjoy the exclusive right to
authorize or prohibit digital communication by cable,
optic fiber, airwaves, satellite or any other system
that has been or may be devised which enables persons
connected to electronic retrieval systems to select a
performance. 40
39 The foregoing paragraph (5) and the related comments above are
also reproduced in Subchapter G (Communication to the Public) and
Subchapter H (Digital Transmission) of this Chapter, as well as in
Chapter VII (Rights of Producers of Phonograms), Subchapter F
(Broadcasting), Subchapter G (Communication to the Public) and
subchapter H (Digital Transmission).
40 The foregoing text is also reproduced in Subchapter G
(Communication to the Public) and Subchapter H (Digital Transmission)
of this Chapter.
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VI. G. ECONOMIC RIGHTS OF PERFORMERS, IN RESPECT OF THEIR FIXED
PERFORMANCES: COMMUNICATION TO THE PUBLIC
Argentina:
4. Economic Rights of Performers in their Fixed
Performances
Any performer shall have the exclusive right, in
relation to his performance fixed on a phonogram or in
an audiovisual work, to authorize the following acts:...
(e) communication of the fixed performance to the
public by any means.
6. Limitations on the Rights of Performers
(c) It Shall be a matter for the national
legislation of countries party to the Instrument to
provide for the limitation of the rights specified in
Article 4(e) above to the right to equitable
remuneration.
(d) The right to be introduced by national
legislation under Article 4(e) above shall not apply in
the case of communication to the public of fixations
of performances by digital means in the form of
transmission on demand to a place and at a time
specified by the person or entity making the demand, or
where the scale or specific nature of the proposed
digital service jeopardizes the normal exploitation of
the performances and unjustifiably prejudices the
legitimate interests of the performers, as with multi-
channel subscription systems. Unless otherwise agreed,
reproduction, distribution and importation rights shall
be exercised by the producer of the phonogram or of the
audiovisual work.
(e) It shall be a matter for the national
legislation of countries party to the Instrument to
require that the rights provided for in Article 4(e) be
administered by collective administration organizations,
and that the royalties be distributed to the performers
concerned after deduction of administrative costs and
any other allocations for other purposes that have been
authorized by the performers concerned or the
organizations representing them... 41
Brazil:
Patrimonial rights of performers for their fixed
interpretations or performances and of the producers of
phonograms:
41 The foregoing text is also reproduced in Subchapter F
(Broadcasting) and Subchapter H (Digital Transmission) of this
Chapter.
179