WIPO

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      IAVP/DC/3
      ORIGINAL:       English
      DATE: August 1, 2000

WORLD INTELLECTUAL PROPERTY ORGANIZATION

GENEVA

DIPLOMATIC CONFERENCE ON THE PROTECTION OF AUDIOVISUAL PERFORMANCES

Geneva, December 7 to 20, 2000

BASIC PROPOSAL FOR THE SUBSTANTIVE PROVISIONS OF AN INSTRUMENT ON THE PROTECTION OF AUDIOVISUAL PERFORMANCES TO BE CONSIDERED BY THE DIPLOMATIC CONFERENCE

prepared by the Chairman of the Standing Committee on Copyright and Related Rights

Memorandum prepared by the Chairman of the Standing Committee

 

The Steps Towards the Diplomatic Conference

1. The international protection of audiovisual performances was among the subjects dealt with at the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, which took place in Geneva from December 2 to 20, 1996, and it had already been discussed during the preparatory steps towards the Diplomatic Conference in the Committee of Experts on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms. The Basic Proposal for the Substantive Provisions of the Treaty for the Protection of the Rights of Performers and Producers of Phonograms included an alternative solution extending the protection accorded to performers to audiovisual performances as well. However, the WIPO Performances and Phonograms Treaty (hereinafter referred to as "the WPPT") that was adopted by the Diplomatic Conference did not extend the protection of performers to their performances fixed in audiovisual fixations.

2. Instead, the Diplomatic Conference adopted the following Resolution concerning Audiovisual Performances:

3. The Assemblies of Member States of WIPO and the Unions administered by WIPO decided in their March 1997 sessions to establish a Committee of Experts on a Protocol concerning Audiovisual Performances (document AB/XXX/4 Rev.). The Director General of WIPO convened the Committee of Experts in two sessions, the first in September 1997 and the second in June 1998.

4. The committee structure of WIPO was revised after the March 1998 sessions of the Assemblies of Member States of WIPO as part of the reform of the governance structure of the Organization. The system of Committees of Experts was replaced by Standing Committees, and the Standing Committee on Copyright and Related Rights (hereinafter referred to as "the SCCR") was established (document A/32/INF/2). The SCCR was convened in four sessions, the first in November 1998, the second in May 1999, the third in November 1999, and the fourth in April 2000.

5. The International Bureau of WIPO (hereinafter referred to as "the International Bureau") convened regional consultation meetings, held in the regions or in Geneva, before several sessions of the aforementioned Committees.

6. The discussions in the Committee of Experts were first based on memoranda prepared by the International Bureau containing information about existing national and regional legislation concerning audiovisual performances and information on the de facto situation, particularly on contractual practices. Following the recommendations of the Committee of Experts, and then the SCCR, the Director General of WIPO invited the Governments of WIPO Member States and the European Community to submit proposals in treaty language for discussion at the sessions of the Committees.

7. As a result of these invitations from the Director General, the International Bureau received the written proposals and comments listed in paragraphs 21 to 26 below. The International Bureau prepared several compendia and comparative tables containing proposals and comments received by respective deadlines to facilitate the work of the Committees. These proposals and comments, as well as reports from the regional consultation meetings, formed the basis of the work of the Committees.

8. Following the recommendations of the third session of the SCCR, a series of regional consultations, a special (fourth) session of the SCCR, a meeting of a Preparatory Committee, and the General Assembly of WIPO were convened in Geneva from April 10 to 14, 2000.

9. At its session of April 11, 12 and 14, 2000, the SCCR adopted the following recommendations:

10. At its meeting on April 12 and 14, 2000, the Preparatory Committee requested the International Bureau to prepare a Basic Proposal for Administrative and Final Clauses of the International Instrument, containing alternative provisions for a Protocol to the WPPT and for a separate treaty that would build on the provisions of the WPPT. The Preparatory Committee considered and approved the draft Rules of Procedure of the Diplomatic Conference, considered other necessary preparatory aspects of the Conference, and recommended that the Diplomatic Conference be convened from December 7 to 20, 2000.

11. The WIPO General Assembly considered at its session on April 13 and 14, 2000, the recommendations of the SCCR and approved the convening of a Diplomatic Conference as recommended.

About the Basic Proposal

12. The present set of draft substantive provisions of the Basic Proposal for an Instrument on the Protection of Audiovisual Performances (set forth in this document) has been prepared by the Chairman of the session of the SCCR following the above mentioned decisions.

13. There are 20 Articles preceded by a Preamble in the Basic Proposal. Each provision is preceded by explanatory Notes.

14. The purpose of the explanatory Notes is:

(i) to explain briefly the contents and rationale of the proposals and to offer guidelines for understanding and interpreting specific provisions,

(ii) to indicate the reasoning behind proposals, and

(iii) to include references to proposals and comments made at sessions of the Standing Committee, as well as references to models and points of comparison found in existing treaties.

15. In the Notes concerning each Article that contains provisions dealing with substantive issues that are also dealt with in the WPPT, the corresponding Article of the WPPT is reproduced in the Notes in a box at the bottom of the page in order to facilitate the assessment and comparison of the proposed Article with the corresponding provisions of the WPPT.

16. The present Basic Proposal has been prepared on the basis of the proposals made during the work of the Committee of Experts on a Protocol concerning Audiovisual Performances and the SCCR and taking into account the discussions in these Committees. The submitted proposals have been carefully studied, and portions of them appear in several places in the proposed Instrument, sometimes in a reformulated or combined format. Additional elements have been introduced where necessary, but not all elements of all proposals are reflected in the proposed Instrument. Because of the large number of proposals there is no indication in the Notes which delegation submitted which proposal.

17. Alternative solutions are proposed in instances where different solutions have been proposed by delegations during the work of the aforementioned Committees and it has been considered appropriate to present some alternatives for the consideration of the Diplomatic Conference. The number of proposed alternatives has, however, been kept as limited as possible. Alternatives have been designated in the text using capital letters (A), (B), (C), etc., in accordance with Rule 29(1)(b) of the draft Rules of Procedure for the Diplomatic Conference.

18. In the proposed Instrument all provisions are spelled out. This includes those provisions that could be formulated as references to the WPPT making certain provisions of that Treaty applicable mutatis mutandis in respect of the protection provided for in the proposed Instrument. This method of presentation has been chosen for the reasons of legal precision, comprehensiveness and readability.

19. This solution does not, however, preclude that at the end of the deliberations certain parts of the proposed Instrument would be amended to become references to the WPPT. The most evident candidates of such provisions appear to be Article 5 (Moral Rights), Article 6 (Economic Rights of Performers in their Unfixed Performances), Article 7 (Right of

Reproduction), Article 8 (Right of Distribution), Article 9 (Right of Rental), Article 10 (Right of Making Available of Fixed Performances), Article 13 (Limitations and Exceptions), Article 14 (Term of Protection), Article 15 (Obligations concerning Technological Measures), Article 16 (Obligations concerning Rights Management Information), Article 17 (Formalities), and Article 20 (Provisions on Enforcement of Rights).

Proposals Presented During the Preparatory Stages

20. In the present Basic Proposal reference is often made to the working documents presented during the preparatory stages in the aforementioned Committees and to the positions and proposals presented by the Member States, regional groups of Member States, and the European Community and its Member States in the sessions of the Committees.

21. The International Bureau presented to the first session of the Committee of Experts on September 15, 16 and 19, 1997, the following working documents:

22. For the second session of the Committee of Experts from June 8 to 12, 1998, the following documents were submitted:

23. For the first session of the SCCR from November 2 to 10, 1998, the following documents were submitted:

24. For the second session of the SCCR from May 4 to 11, 1999, the following documents were submitted:

25. For the third session of the SCCR from November 16 to 20, 1999, the following documents were submitted:

26. For the fourth session of the SCCR on April 11, 12 and 14, 2000, the following documents were submitted:

The Agreed Statements Adopted Together with the WPPT

27. A number of agreed statements concerning different provisions of the WPPT were adopted by the Diplomatic Conference of 1996. The Diplomatic Conference of 2000 could consider the adoption of an agreed statement referring to those of the WPPT:

The specific agreed statements that might be relevant to the proposed Instrument are reproduced in the following manner: the text of the agreed statement is found in paragraphs 28 to 32 and a reference to these paragraphs is made in the Notes associated with each affected Article.

28. To be considered in the context of Article 1(3) of the proposed Instrument. The first part of the agreed statement concerning Article 1(2) of the WPPT reads as follows: "It is understood that Article 1(2) clarifies the relationship between rights in phonograms under this Treaty and copyright in works embodied in the phonograms. In cases where authorization is needed from both the author of a work embodied in the phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the author does not cease to exist because the authorization of the performer or producer is also required, and vice versa." The second part of the agreed statement reads as follows: "It is further understood that nothing in Article 1(2) precludes a Contracting Party from providing exclusive rights to a performer or producer of phonograms beyond those required to be provided under this Treaty."

29. To be considered in the context of Articles 7 and 13 of the proposed Instrument. The agreed statement concerning Articles 7, 11 and 16 of the WPPT reads as follows: "The reproduction right, as set out in Articles 7 and 11, and the exceptions permitted thereunder through Article 16, fully apply in the digital environment, in particular to the use of performances and phonograms in digital form. It is understood that the storage of a protected performance or phonogram in digital form in an electronic medium constitutes a reproduction within the meaning of these Articles."

30. To be considered in the context of Articles 8 and 9 of the proposed Instrument. The agreed statement concerning Articles 2(e), 8, 9, 12, and 13 of the WPPT reads as follows: "As used in these Articles, the expressions 'copies' and 'original and copies,' being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects."

31. To be considered in the context of Article 13 of the proposed Instrument. According to the agreed statement concerning Article 16 of the WPPT the agreed statement concerning Article 10 of the WIPO Copyright Treaty (hereinafter referred to as "the WCT") is applicable mutatis mutandis to Article 16 of the WPPT. The first part of the agreed statement concerning Article 10 of the WCT reads as follows: "It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital environment." The second part reads as follows: "It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention."

32. To be considered in the context of Article 16 of the proposed Instrument. According to the agreed statement concerning Article 19 of the WPPT, the agreed statement concerning Article 12 of the WCT is applicable mutatis mutandis to Article 19 of the WPPT. The first part of the agreed statement concerning Article 12 of the WCT reads as follows: "It is understood that the reference to 'infringement of any right covered by this Treaty or the Berne Convention' includes both exclusive rights and rights of remuneration." The second part reads as follows: "It is further understood that Contracting Parties will not rely on this Article to devise or implement rights management systems that would have the effect of imposing formalities which are not permitted under the Berne Convention or this Treaty, prohibiting the free movement of goods or impeding the enjoyment of rights under this Treaty."

Draft Protocol
to the WIPO Performances and Phonograms Treaty
concerning Audiovisual Performances

Draft
WIPO Audiovisual Performances Treaty

Contents

Preamble

Article 1: Relation to Other Conventions and Treaties

Article 2: Definitions

Article 3: Beneficiaries of Protection

Article 4: National Treatment

Article 5: Moral Rights

Article 6: Economic Rights of Performers in Their Unfixed Performances

Article 7: Right of Reproduction

Article 8: Right of Distribution

Article 9: Right of Rental

Article 10: Right of Making Available of Fixed Performances

Article 11: Right of Broadcasting and Communication to the Public

Article 12: Alternative E Transfer

Alternative F Entitlement to Exercise Rights

Alternative G Law Applicable to Transfers

Alternative H [No such provision]

Article 13: Limitations and Exceptions

Article 14: Term of Protection

Article 15: Obligations concerning Technological Measures

Article 16: Obligations concerning Rights Management Information

Article 17: Formalities

Article 18: Reservations

Article 19: Application in Time

Article 20: Provisions on Enforcement of Rights

Notes on the Title and the Preamble

0.01 During the preparatory stages no agreement was reached about the nature of the new instrument on the protection of audiovisual performances. During the preparations several delegations proposed that the new instrument should be subordinate to the WPPT and consequently entitled "Protocol." Some other delegations proposed that the new instrument should be free-standing and should be entitled "Treaty." In order to reflect both options, two alternatives have been presented in the beginning of the proposal for the title of this Instrument. On the cover page of this document the generic expression "Instrument" has been used.

0.02 In Alternative A the title "Protocol to the WIPO Performances and Phonograms Treaty concerning Audiovisual Performances" has been proposed. In Alternative B the title "WIPO Audiovisual Performances Treaty" has been proposed following the model adopted in the context of the WPPT and the WCT. The choice of these alternatives is also reflected in Article 1 where the relation of the proposed Instrument to other conventions and treaties is set forth.

0.03 The choice between these two alternatives is left to the Diplomatic Conference. Some considerations on the significance and the factors affecting this choice are presented in the Notes on Article 1.

0.04 To simplify the method of presentation, the expression "Treaty" has been used throughout the substantive provisions of this Basic Proposal. If Alternative A is chosen by the Diplomatic Conference the word "Treaty" shall be replaced by the word "Protocol" in all provisions except in Article 1(1).

0.05 The Preamble sets forth the objective of the proposed Instrument and the main arguments and considerations relating thereto. The first four paragraphs follow the model and the language of the Preamble of the WPPT.

0.06 The first paragraph of the Preamble expresses the most general objective of the proposed Instrument. It follows the first paragraph of the preamble of the WPPT which took its inspiration from the first paragraph of the preamble of the Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to in these Notes as "the Berne Convention").

0.07 The second paragraph pronounces the recognition that new international rules are needed to achieve the objective identified in the first paragraph.

Preamble

[Notes on the Title and the Preamble, continued]

0.08 The third paragraph acknowledges the connection of the proposed Instrument to the evolution of the overall environment of the intellectual property system: the development and convergence of information and communication technologies. The proposed Instrument contains certain provisions on "traditional issues" and it also includes solutions to questions raised by technological developments in the same way as the WPPT and the WCT, which often are called the "Internet Treaties" of WIPO. The proposed Instrument updates and is a complement to the system of conventions and treaties of WIPO in the field of copyright and related rights.

0.09 The fourth paragraph pronounces the need to maintain a balance between the rights of performers and the larger public interest in the same way as the corresponding paragraph in the WPPT and the WCT.

0.10 The fifth paragraph contains a reference to the scope of protection of the WPPT.

0.11 The sixth paragraph contains a reference to the Resolution adopted by the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions held in Geneva from December 2 to 20, 1996 (hereinafter referred to in these Notes as "the Diplomatic Conference of 1996").

Notes on Article 1

1.01 The provisions of Article 1 concern the nature of the proposed Instrument and define its relation to other conventions and treaties. In paragraph (1) and paragraph (4) two alternatives are presented. These alternatives are a continuation of the alternatives presented in the context of the title of the proposed Instrument. Because of the link between paragraph (1) and paragraph (4) and for ease of presentation these paragraphs are shown adjacent to each other under the alternatives in an order that does not follow their final intended order.

1.02 According to paragraph (1) in Alternative A, the proposed Instrument would constitute a Protocol to the WPPT. On the other hand, paragraph (1) in Alternative B, which contains no text, is presented for the Diplomatic Conference in order to make it possible to consider the proposed Instrument as a free-standing treaty. In this case there would be no need for a provision defining the nature of the Instrument.

1.03 According to paragraph (4) in Alternative A, the proposed Instrument would not have a connection with any treaty other than the WPPT. The draft clause under Alternative A would be suitable both for a Protocol to the WPPT and for a Treaty linked to the WPPT. Paragraph (4) in Alternative B is formulated in view of a possible free-standing Treaty.

1.04 There is some legal authority indicating that the choice of designation of the proposed Instrument does not carry any specific significance. Either a "Protocol" or a "Treaty" can be linked to another treaty. Either a "Protocol" or a "Treaty" may be built on the principles of another treaty, and even incorporate by reference parts of another treaty. A good example of this is the WCT and its references to the Berne Convention.

1.05 One of the main reasons to call the proposed Instrument a "Protocol" seems to be the fact that this designation was used in the Resolution concerning Audiovisual Performances adopted by the Diplomatic Conference of 1996, and most delegations have continued to use this designation during the preparatory stages. The use of the designation "Protocol" in 1996, and perhaps also today, may be based on the view that it would be politically and technically easy to add protection of audiovisual performances to the WPPT by a protocol. Several provisions of the WPPT would then be incorporated mutatis mutandis into the proposed Instrument.

Article 1
Relation to Other Conventions and Treaties

[Notes on Article 1, continued]

1.06 However, some reasons speak in favor of designating the proposed Instrument as a Treaty. First, the WPPT is mainly confined to aural performances or performances fixed in phonograms, whereas the scope of the proposed Instrument is in the audiovisual field and thus outside of the scope of the WPPT: the protected subject matter is different in the two Instruments. Second, the proposed Instrument does not supplement or amend the WPPT, nor does it extend or modify the protection under the WPPT, but adds a completely new area of protection.

1.07 It should also be noted that irrespective of whether the proposed Instrument will be called a Protocol or a Treaty, it is a treaty under international law. According to Article 2(1)(a) of the Vienna Convention on the Law of Treaties, "treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or two or more related instruments and whatever its particular designation." [emphasis added]

1.08 Paragraph (2) contains a "WPPT and Rome safeguard" clause modeled after Article 2.2 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to in these Notes as "the TRIPS Agreement"). The same formula was used in the "Rome safeguard" clause of Article 1(1) in the WPPT.

1.09 Paragraph (3) contains a "non-prejudice" clause concerning the protection of literary and artistic works following the model of Article 1 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (hereinafter referred to in these Notes as "the Rome Convention"). The Diplomatic Conference of 1996 formulated Article 1(2) of the WPPT according to the same pattern.

1.10 The Diplomatic Conference of 1996 adopted an agreed statement concerning Article 1(2) of the WPPT which is relevant for the consideration of Article 1(3) of the proposed Instrument (see paragraph 28 of the Memorandum).

Notes on Article 2

2.01 Article 2 contains definitions of the key terms used in the proposed Instrument. This follows the tradition of the treaties in the field of neighboring rights, or rights related to copyright.

2.02 Item (a) defines the term "performers." It reproduces the language of Article 2(a) of the WPPT. The definition used in the WPPT differs from that of the Rome Convention only in two respects: it adds the term "interpret" to the list of types of performances, and it adds "expressions of folklore" to the scope of performances.

2.03 During the work of the Committee of Experts and the SCCR proposals were made to exclude "extras" from the protection of the proposed Instrument. It was also proposed that the definition should expressly exclude "performers whose performances are casual or incidental in nature such as extras." In general, "extras," "ancillary performers" or "ancillary participants" do not qualify for protection because they do not, in the proper sense, perform literary or artistic work or expression of folklore. Thus, it appears that no explicit provision concerning extras is necessary in the proposed Instrument. Accordingly, when implementing the proposed Instrument, Contracting Parties may determine in their national legislation the threshold at which a person becomes a performer entitled to protection. When making this determination, Contracting Parties may take into consideration established industry practice and, inter alia, whether a person has a speaking role or forms a background to the acting.

2.04 The definition of "audiovisual performances" in item (b) is self-explanatory and is built on the definition of "audiovisual fixation" in the next item. The definition also makes clear that the term "performance" may be used alone in the proposed Instrument to mean audiovisual performance.

2.05 Item (c) defines the term "audiovisual fixation." Its structure follows the definition of "fixation" in the WPPT, and all the technical elements ("embodiment," "representations," "from which they can be perceived, reproduced or communicated" and "through a device") that are not dictated by the different subject matter addressed by the proposed Instrument are identical. What is embodied in an audiovisual fixation must be "moving images, whether or not accompanied by sound or by the representations thereof." The expression "moving images" should be understood in a broad sense covering any visual material capable of

Article 2
Definitions

[Notes on Article 2, continued]

incorporating or recording of visual material using whatever means and whatever medium. It should be clear that the perceiving, reproducing or communicating may take place only with the aid of a machine or device. Finally, it should be pointed out that, as in the corresponding definition in the WPPT, the definition of embodiment here does not qualify or quantify the duration of the life of the embodiment necessary to result in fixation. There are no conditions regarding the requisite permanence or stability of the embodiment. In the proposed Instrument the expression "audiovisual fixation" is used to refer to any first fixation and any fixation embodied in a subsequent copy. In addition to audiovisual performances, a given carrier may incorporate several other different types of protected subject matter, including but not limited to cinematographic or audiovisual works.

2.06 The definition of "broadcasting" in item (d) follows the definition found in Article 2 of the WPPT except that it replaces, for the purposes of the proposed Instrument, the expression "of sounds or of images and sounds" by "of sounds or images or images and sounds." The first sentence of the definition is built on the prototype definition of broadcasting found in Article 3(f) of the Rome Convention. Two other parts of the definition repeat the modernizing elements of the notion of broadcasting introduced in the WPPT. Their function is intended to remove uncertainties concerning the interpretation. For the same reason as in the WPPT, there is no definition of "rebroadcasting" in the proposed Instrument. According to Article 3(g) of the Rome Convention, "rebroadcasting" means the simultaneous broadcasting by one broadcasting organization of a broadcast of another broadcasting organization. Rebroadcasting is broadcasting.

2.07 The definition of "communication to the public" in item (e) is tailored for the specific purposes of Articles 6 and 11 of the proposed Instrument. Like the corresponding definition in the WPPT, the definition here has two parts. The first part defines the "communication to the public" as transmission to the public by any medium other than by broadcasting. This definition covers any transmission by wire of an actual performance or a performance fixed in an audiovisual fixation to the public, when the public is not present in the place where the performance occurs or where the audiovisual fixation is used for initiating the transmission. The definition also includes one-way transmissions to individuals using wireless connections but excludes wireless transmissions for public reception, i.e. broadcasting. "Communication" according to the first part of the definition always implies transmission to a public not present

[Notes on Article 2, continued]

in the place where the communication originates. The distance between the members of the public and the place of origination may be longer or shorter. The definition also covers all retransmissions by wire of any other transmissions.

2.08 The second part of the definition in item (e) is included in the provision solely for the purposes of Article 11. Here, "communication to the public" also includes making a performance that has been fixed in an audiovisual fixation audible and/or visible to the public. Communication of this type may include the projection of a performance on the screen of a cinema or the projection of a performance recorded on a video cassette or DVD to the public in a café, hotel lobby, the premises of a fair or other premises open to the public. This part of the definition is also meant to include making performances that have been fixed in audiovisual fixations audible and/or visible to the public through a radio or a television set located in the type of premises mentioned above.

2.09 The expression "(any) communication to the public" has a different meaning in the Rome Convention than in the Berne Convention. This difference has been respected in the WPPT and in the WCT. The definition of "communication to the public" in the proposed Instrument follows the tradition of the Rome Convention and the WPPT. The most important differences in this definition compared to the corresponding expression in the Berne Convention and the WCT are: 1) the notion of "communication" in Article 12 of the Rome Convention, in Article 15 of the WPPT and in Article 11 of the proposed Instrument extends to "direct performances," i.e. playing of phonograms or projection of a performance recorded in an audiovisual fixation to the public present where the playing or projection occurs, and 2) the notion of "communication" in the listed related rights treaties does not extend to the interactive on-demand making available to the public of performances. In the WPPT, the "right of making available" of fixed performances has been granted to the performers in a separate article (Article 10).

2.10 In the proposed Instrument the right of making available of fixed performances is also dealt with in a separate article (Article 10) and a description of this right is found in the Notes on that article. Accordingly, there is no need for a separate definition.

2.11 It may be observed that the definition of "audiovisual performances" is broad enough to include performances that are exclusively aural. While this may at first seem surprising, it is necessary because any type of performance may be embodied in an audiovisual production. This arrangement is not inconsistent with the WPPT or any other treaty; the key is what use is made of the performance. Thus, an exclusively aural performance may fall under the WPPT if it is embodied by a producer in a phonogram, but it will fall under the proposed Instrument if the same performance is embodied as the audio portion of a film or other audiovisual production. The definitions of "broadcasting" and "communication to the public" likewise cover transmission of sounds alone. This too follows because, for example, the sound of a film may be broadcast via sound radio.

2.12 By virtue of this construction of the definitions, the proposed Instrument would extend its protection to all performances not covered by the WPPT.

Notes on Article 3

3.01 Article (3) establishes the points of attachment for granting national treatment to performers under Article (4).

3.02 According to paragraph (1) the protection provided for in the proposed Instrument would be accorded to performers who are nationals of other Contracting Parties.

3.03 Paragraph (2) assimilates performers who are not nationals of a Contracting Party but who are nevertheless habitually resident in a Contracting Party to nationals of that country. Paragraph (2) reproduces the language of Article 3(2) of the Berne Convention.

3.04 The criterion of nationality, supplemented by the criterion of habitual residence, is simple and manageable and well-adapted for a new form of international protection. This single criterion should also function as a better incentive for joining the proposed Instrument than additional criteria based on territoriality. Countries will obtain protection for their nationals in other Contracting Parties by joining the proposed Instrument.

3.05 Different rules were adopted in the WPPT. In Article (3) of the WPPT, a solution similar to that adopted in the TRIPS Agreement was used. In the WPPT the criterion of nationality was extended to all points of attachment by reference to the criteria for eligibility for protection provided under the Rome Convention. This was a feasible and sound solution for the WPPT because it introduced its protection in an area where well-known and established criteria already were in place. These reasons for criteria in addition to nationality do not exist for the proposed Instrument.

Article 3
Beneficiaries of Protection

Notes on Article 4

4.01 Article 4 contains the provisions concerning national treatment. Two alternatives are included in the proposed Article.

4.02 During the preparatory stages no convergence of positions concerning national treatment was achieved. Various proposals on national treatment were made, ranging from a very broad obligation to a model limited to the granting of national treatment only as to the exclusive rights specifically granted in the proposed Instrument.

4.03 Article 5(1) of the Berne Convention provides global national treatment for the protection of literary and artistic works. This tradition was carried forward in the WCT. In the field of related rights however, there is a tradition of somewhat more limited national treatment, which takes its origin from Article 2.2 of the Rome Convention. Virtually the same solution was adopted in the WPPT.

4.04 According to paragraph (1) of Article 4 in Alternative C, the obligation of national treatment would extend to the rights specifically granted in the proposed Instrument as well as to any additional rights that a Contracting Party may accord its own nationals. The obligation would apply to both exclusive rights and rights of remuneration. As far as such additional rights are concerned, paragraph (2) would permit Contracting Parties to base the protection accorded to nationals of other Contracting Parties on the principle of reciprocity.

4.05 Alternative D reproduces the model already adopted in the WPPT.

4.06 A proposal was made during the preparatory stages to include a provision stating explicitly that no Contracting Party shall allow collection of remuneration in respect of nationals of another Contracting Party for rights that it does not accord to those nationals. An explicit provision to this effect is not necessary because in such a case there would be no legal basis to collect remuneration in the first instance. Collection in such circumstances would be inappropriate and without legal authority.

4.07 Under either alternative, the obligation of national treatment shall apply to moral rights. Moral rights are covered by the expressions "rights" and "exclusive rights." This is also the established interpretation of the expression "exclusive rights" in Article 4 of the WPPT.

Article 4
National Treatment

(ii) such additional rights as it accords to its own nationals.

Notes on Article 5

5.01 Moral rights were granted for the first time to performers at the level of an international instrument in the WPPT. These rights were limited to live aural performances or performances fixed in phonograms. In Article 5 of the proposed Instrument it is suggested that performers would be granted moral rights as regards their audiovisual performances. The structure of the proposed Article follows the structure of Article 6bis of the Berne Convention.

5.02 Paragraph (1) sets out the right of the performer to be identified as the performer of each of his performances and to object to any distortion, etc. of them that would be prejudicial to his reputation. The provisions cover all audiovisual performances whether live or fixed in audiovisual fixations. The two prerogatives of moral rights are presented in the Article in separate items for the purpose of clarity.

5.03 Item (i), concerning the right to claim to be identified as the performer, is identical with the corresponding part of Article 5 of the WPPT. However, the basic right differs somewhat from that of Article 6bis(1) of the Berne Convention. An exception has been added here, as in the WPPT, providing that the right may not be exercised "where omission is dictated by the manner of the use of the performance." This clause adds a degree of flexibility to the application of this right.

5.04 The first part of item (ii) also follows the corresponding part of Article 5 of the WPPT. In the WPPT the basic right to object to distortion, etc. differs from that of the Berne Convention in two respects. First, the element "or other derogatory action in relation to the said work" is not reproduced in the list of possibly prejudicial acts. Second, the word "honor" which appears in the Berne Convention in conjunction with "reputation," has been omitted.

5.05 At the end of item (ii) of Article 5(1) of the proposed Instrument a clarifying clause on normal exploitation of the performance has been added.

5.06 During the preparatory stages several proposals were made to qualify the clause concerning the right to object to any distortion, etc. of a performance. One proposal would have permitted a producer to "abridge, condense, edit or dub the work, but without thereby distorting the performance of the performer." Another proposal would have permitted modifications "considered necessary by the producer of the audiovisual fixation for the normal exploitation of such fixation." A third proposal was made to serve the same purpose: "Modifications consistent with the normal exploitation of an audiovisual work undertaken by

Article 5
Moral Rights

(ii) to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation. Modifications consistent with the normal exploitation of a performance in the course of a use authorized by the performer shall not be considered prejudicial to the performer's reputation.

[Notes on Article 5, continued]

the producer of the work or the producer's successors in interest, pursuant to the exercise of rights of authorization acquired by the producer in the performance, shall not be considered seriously prejudicial to the performer's reputation." This proposal had as the definition of "normal exploitation of an audiovisual work" that it "shall include the use of new or changed technology, media, formats and/or methods of distribution, dissemination, making available or communication to the public."

5.07 In the light of the aforementioned proposals it should be emphasized that alteration or modification, such as abridgement, condensing, editing or dubbing, per se, does not concern moral rights. The same goes for new or changed technology, media, formats and methods of distribution, etc. Technological platforms or carriers are content neutral. The crucial question for moral rights is whether an act of modification may be considered to be prejudicial to the performer's reputation. What may cause a change of the performance to be prejudicial is the way that the change is made. Thus, the determination as to whether an act constitutes a violation of this moral right turns on whether the modification is objectively prejudicial to the performer's reputation. This judgement should be made on objective criteria from the point of view of a reasonable viewer with experience in the pertinent category of audiovisual productions. Under standard interpretations of moral rights, a modification would not be considered a violation unless the prejudice were meaningful or substantial. For this reason it does not appear necessary to qualify the required prejudice in the Article by such terms as "serious" or "substantial."

5.08 "Normal exploitation" or standard industry practice, as such, therefore falls outside of the scope of moral rights. However, item (ii) also makes clear that Contracting Parties should take the above-mentioned aspects of moral rights into account when implementing the proposed Instrument.

5.09 During the preparatory stages a proposal was made to consider the interests of all performers and other rightholders in an audiovisual fixation when assessing the violation of the moral rights of one performer. Under the proposed Instrument a judge could appropriately undertake an equitable balancing of the rights of multiple rightholders in his judgement.

5.10 Paragraph (2) is identical to the corresponding provision of the WPPT and reproduces mutatis mutandis Article 6bis(2) of the Berne Convention, which concerns moral rights after the death of a performer.

[Notes on Article 5, continued]

5.11 Paragraph (3) is identical with the corresponding provision of the WPPT and reproduces the corresponding provision of Article 6bis(3) of the Berne Convention.

5.12 Moral rights exist "independently of the performer's economic rights, and even after the transfer of those rights." As in other treaties no language is included in the proposal regarding

inalienability or inter vivos transfer of these rights. The performer may exercise his moral rights, and he has the option not to exercise these rights; he may even waive them. To take an example, a performer may, by contract, agree to refrain indefinitely from identifying himself as the performer of a particular performance. The position of a performer as the performer of a given performance cannot, of course, be transferred; no one can step into his shoes in this sense.

5.13 The established interpretation of Article 6bis of the Berne Convention should be used directly in construing all those parts of the present Article that are formulated closely in line with it.

5.14 The moral rights provided for in the proposed Instrument, like all other specific rights set forth herein, are minimum rights. The Contracting Parties may in their national legislation provide for broader protection of moral rights.

Notes on Article 6

6.01 Article 6 of the proposed Instrument provides performers with an exclusive right to control broadcasting and communication to the public and to control the fixation of their live performances. The provision follows the corresponding provisions of Article 6 of the WPPT.

6.02 The right in item (i) covers broadcasting and communication to the public as defined in Article 2(d) and the first part of Article 2(e) of the proposed Instrument, except that the right does not include rebroadcasting or retransmission by wire which are expressly excluded from the scope of the right. The scope of the right corresponds to the right granted to performers in Article 7.1(a) of the Rome Convention and Article 6(i) of the WPPT. This right is also addressed by Article 14.1 of the TRIPS Agreement. All these provisions extend protection to both aural and audiovisual performances.

6.03 Item (ii) grants performers the right to control the audiovisual fixation of their unfixed performances. The scope of this right, combined with Article 6 of the WPPT, corresponds to the scope of the right under Article 7.1(b) of the Rome Convention which is not limited to aural performances.

6.04 The overlap above is not a redundancy: there is every reason to propose a complete series of rights in the proposed Instrument. Only if the proposed Instrument is adopted as a protocol strongly linked to the WPPT, and perhaps built on references to its provisions, should the omission of item (i) be considered.

Article 6
Economic Rights of Performers in their Unfixed Performances

Performers shall enjoy the exclusive right of authorizing, as regards their performances:

(i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and

(ii) the audiovisual fixation of their unfixed performances.

Notes on Article 7

7.01 In Article 7 it is proposed that performers shall enjoy the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in audiovisual fixations, in any manner or form. The operative elements of this provision are the same as those of the corresponding Article of the WPPT.

7.02 The origin of the "direct or indirect reproduction" language used in the proposed Article 7 is in Article 10 of the Rome Convention concerning the rights of producers of phonograms. The aspect "direct or indirect" was used in the clauses in the WPPT on the right of reproduction for both performers and producers of phonograms. The purpose of this provision is to make it clear that the distance between the place where an original fixed performance is situated and the place where a copy is made of it has no significance for the right of reproduction. Any form of remote copying is intended to be within the reach of this provision.

7.03 The element "in any manner or form" takes its origin from Article 9(1) of the Berne Convention. It manifests the broad scope of the right. The copying or storage of a fixed performance in any electronic or other medium, using whatever method or technique, constitutes reproduction. Inclusion of this element in the WPPT and the proposed Instrument makes it clear that there is no difference between the rights of performers in this respect.

7.04 In the Diplomatic Conference of 1996 no agreement was reached on whether to include the words "whether permanent or temporary" in the clauses on the right of reproduction. In other words, there is no explicit reference in the WPPT to the lifetime of a copy or the duration of the result of an act of reproduction; in the digital environment the lifetime of a copy may be very short. Instead, the Diplomatic Conference adopted an agreed statement according to which the reproduction right, as set forth in Articles 7 and 11 of the WPPT, fully applies in the digital environment, and in particular to the use of performances and phonograms in digital form.

7.05 The agreed statement referred above is relevant for the consideration of Articles 7 and 13 of the proposed Instrument (see paragraph 29 of the Memorandum).

Article 7
Right of Reproduction

Notes on Article 8

8.01 Article 8 provides an exclusive right of distribution to performers in their performances fixed in audiovisual fixations. The operative elements of this Article are identical with the corresponding provisions of the WPPT.

8.02 According to paragraph (1) the right of distribution extends to the sale or other transfer of ownership of the original and copies of fixed performances.

8.03 The provisions of paragraph (2) leave it up to the Contracting Parties to determine the conditions for exhaustion of the right of distribution after the first sale or other transfer of ownership of the original or a copy of the fixed performance with the authorization of the performer. Exhaustion concerns only physical copies that can be put into circulation as tangible objects, and the rule concerning exhaustion may be national, regional or international.

8.04 The Diplomatic Conference of 1996 adopted an agreed statement concerning Articles 2(e), 8, 9, 12 and 13 of the WPPT which is relevant for the consideration of Articles 8 and 9 of the proposed Instrument (see paragraph 30 of the Memorandum).

Article 8
Right of Distribution

Notes on Article 9

9.01 Article 9 provides performers with the exclusive right to authorize rental of the original and copies of their performances fixed in audiovisual fixations.

9.02 The operative elements of paragraph (1) of the proposed Article 9 are identical to the elements of the corresponding provision of the WPPT.

9.03 Paragraph (2) provides that Contracting Parties are exempt from the obligation to provide the right of rental to performers unless the commercial rental has led to widespread copying of fixed performances that materially impairs the right of reproduction. This "material impairment" test corresponds to the provisions concerning the author's right of rental in respect of cinematographic works in Article 11 of the TRIPS Agreement and in Article 7(2) of the WCT. The provision is sensible here for the same reasons that it was sensible in those treaties. Moreover, the inclusion of the provision here ensures the same treatment of different rightholders whose contributions are incorporated in the same subject matter.

9.04 The Diplomatic Conference of 1996 adopted an agreed statement concerning Articles 2(e), 8, 9, 12 and 13 of the WPPT which is relevant for the consideration of Articles 8 and 9 of the proposed Instrument (see paragraph 30 of the Memorandum).

Article 9
Right of Rental

Notes on Article 10

10.01 According to Article 10 performers would enjoy the exclusive right of making their fixed performances available to the public. The same exclusive right was granted in the WPPT to its two categories of rightholders. It corresponds to the "making available" part of the right of communication as formulated in the WCT regarding authors.

10.02 The proposed new right covers the making available of fixed performances by wire or wireless means. Making available always involves transmission, though it may occur over a short or long distance. A distinction is thus made between the distribution of copies of fixed performances in physical, tangible form, which is covered by the right of distribution in Article 8 of the proposed Instrument, and the making available of fixed performances by transmission. The technology used for transmission may be analog or digital, and it may be based on any vehicle, such as electromagnetic waves or guided optical beams, capable of carrying information.

10.03 The right of making available to the public is limited to situations where members of the public may access performances fixed in audiovisual fixations from a place and at a time individually chosen by them. Thus, availability is based on interactivity and on-demand access; in this way, the making available right differs from the right of communication.

10.04 In the same way as in the WPPT, the right is designed to operate as a basic rule of proper functioning of the electronic marketplace.

10.05 No rights are exhausted in connection with the making available to the public. The performance may not be made further available or distributed to the public by the recipient without authorization. Exhaustion of rights may only be associated with the distribution of tangible copies put on the market by the rightholder or with his consent.

10.06 Finally, while the designation "right of making available" may sound generic and broader than the subject matter of this Article, after the adoption of the WPPT this designation has come to be understood as an "on-demand right" of performers.

Article 10
Right of Making Available of Fixed Performances

Notes on Article 11

11.01 Article 11 provides for a regime of performers' rights in respect of broadcasting and communication to the public. It offers a wide range of choices for Contracting Parties ranging from an exclusive right of authorization to no right at all. The latter option would leave the position of performers dependent on national law and their contractual relations with producers.

11.02 In paragraph (1) it is proposed that performers would enjoy the exclusive right of authorizing broadcasting and communication to the public of their performances fixed in audiovisual fixations. The expressions "broadcasting" and "communication to the public" are defined in Article 2.

11.03 Paragraph (2) permits Contracting Parties to limit the right of performers to the level of a right to equitable remuneration for direct or indirect use of fixed performances for broadcasting or for communication to the public. This corresponds to the level of protection of performers in the WPPT. According to paragraph (2) Contracting Parties could set conditions for the exercise of the right to remuneration: Contracting Parties could, for instance, provide for collective management of the right and regulate some modalities of the rights administration. Contracting Parties could also set forth in their national legislation provisions on the question of who is responsible to pay the remuneration.

11.04 The provisions in paragraph (3) set forth a possibility for a reservation concerning the rights provided for in paragraphs (1) and (2). The reservations clause leaves open the degree of reservation concerning the right of remuneration. Contracting Parties may make small or more extensive reservations to the right of remuneration, leaving it up to them if they wish to provide the right of remuneration concerning only certain uses or to limit the right in some other way.

11.05 When considering the level of protection of performers in respect of broadcasting and communication to the public of their fixed performances, Contracting Parties should take into account the differences between the audiovisual industry and the phonogram industry, as well as the differences in the markets and structures of exploitation and use of the products of these industries.

Article 11
Right of Broadcasting and Communication to the Public

[Notes on Article 11, continued]

11.06 Article 11 does not include the language "published for commercial purposes" which is found in the corresponding provisions of the WPPT. As was pointed out during the preparatory stages by some delegations, broadcasters almost never obtain through retail trade channels the audiovisual fixations that they broadcast. The same goes for most cable transmissions and films shown in cinemas. The producers or agents representing them license broadcasting and communication to the public in direct contractual relations with broadcasters and other users. This is true also for the distribution of audiovisual productions on videograms: producers and distributors agree on licensing terms directly between themselves. Because performers are in direct contractual relations with the producers of audiovisual productions, they are, in principle, in a position to bargain with the producers about the conditions of later exploitation of their performances fixed in audiovisual fixations.

11.07 The market structure described above differs greatly from the structure of secondary mass uses of phonograms. However, given the developing technology in the field of digital high-quality recordings, it is quite possible that the market structure of audiovisual fixations will develop in a direction that is more similar to the present market structures for music. Contracting Parties should pay attention to these present and possible future market realities when considering the nature and scope of the rights of performers.

11.08 When according new rights to performers, Contracting Parties should also bear in mind that there should be an overall balance between the rights of different categories of rightholders. One decisive factor in this respect is what kind of solution Contracting Parties will adopt in relation to the contractual arrangements on which there are provisions in Article 12 of the proposed Instrument.

Notes on Article 12

12.01 In Article 12 the Diplomatic Conference is offered alternative solutions concerning contractual arrangements on the rights of performers. The question to be resolved is how to strike a proper balance between the need for producers to secure the necessary business certainty for the distribution and exploitation of audiovisual fixations and the objective to strengthen the international legal framework for protection of performers' rights, while preserving the potential for bargaining. During the preparatory stages, several proposals were made employing different legal methods to provide a solution for the same problem.

12.02 It has been suggested that an express provision concerning transfer of rights in respect of audiovisual performances is necessary because audiovisual productions frequently involve contributions of a multitude of performers who are often of different nationalities. The relative novelty of the proposed protection has also been noted as a factor: when new rights are introduced, the legal system should provide for all the necessary means and modalities to deal with them.

12.03 Perhaps the most important justification for clear rules on contractual arrangements is that very different systems have developed in different countries, some based on legal statutory rights provisions and some on contracts and collective bargaining. The goal of Article 12 is to make the systems interoperable or to build a bridge between them. Producers should be able to secure financing for their productions and a return for their investment in predictable business conditions. If there were no clear arrangement concerning the rights of all of the performers, a certain performer could, in principle, block the use of the production on the basis of his exclusive rights.

12.04 Clauses in the proposed Instrument concerning contractual arrangements may also be considered beneficial to performers. Legal certainty in the exploitation of an audiovisual production is not inconsistent with the interests of performers. Moreover, the vesting of rights in the producer facilitates individual and collective bargaining with a single rightholder.

12.05 It should be pointed out that, as far as authors' rights are concerned, there are provisions on different kinds of solutions to this same problem in the Berne Convention and in many countries' national legislation. Article 14bis(2)(b) of the Berne Convention contains provisions on the so-called presumption of legitimation. The most extreme solution is found in Article 19 of the Rome Convention according to which the provisions on performers' rights cease to be applicable "once a performer has consented to the incorporation of his performance in a visual or audio-visual fixation."

12.06 According to Article 14bis(2)(b) of the Berne Convention, in the absence of any contract to the contrary, authors who have undertaken to bring contributions to the making of a cinematographic work, may not object to reproduction, distribution and other uses of the work. The application of this rule may be limited according to the provisions of Article 14bis(3) as far as certain key authors of the work are concerned and may be further limited by national legislation. On the national level, legislative solutions with respect to authors' rights vary from the system of the so-called "film copyright" to rebuttable or irrebuttable presumptions of assignment of authors' right to the maker or producer of the film.

[Notes on Article 12, continued]

12.07 Alternative E provides for a rebuttable presumption of transfer of the performer's exclusive rights of authorization to the producer of the audiovisual fixation. The performer's consent to the incorporation of his performance triggers the transfer of rights. This rule covers all exclusive rights of authorization granted under the proposed Instrument. It does not apply to possible rights of remuneration on which there may be provisions in the national legislation of Contracting Parties. This becomes clear from the expression "exclusive rights of authorization" in the provision. For the same reason the presumption does not extend to performers' moral rights. Moral rights are certainly "rights" or "exclusive rights" but not "exclusive rights of authorization," which is the expression used in all articles concerning performers' economic rights. It should be emphasized that the proposed rule is applicable only to the particular audiovisual fixation for which the performer gave his consent. The inclusion of the same fixed performance in another audiovisual production is subject to the authorization of the performer.

12.08 The provisions of Alternative E would be mandatory for all Contracting Parties. It would, of course, be possible to consider a similar solution on an optional basis. Alternative H, where there is no provision at all, does just this; it would permit Contracting Parties to create a solution based on Alternative E or any other variant at the national level.

12.09 If optional, a model based on a rebuttable presumption of transfer of rights cannot place producers in a fully secure position internationally, i.e. they will not have predictability in the recognition of the transfer in other countries.

12.10 During the preparatory stages a model that took its inspiration from Article 14bis(2)(b) of the Berne Convention was considered by some delegations. Alternative F is based on this approach, and it provides for a presumed entitlement to exercise the rights; it would be applied in the absence of written contractual clauses to the contrary. It would be applicable only to performers' exclusive rights of authorization, and only to the particular audiovisual fixation, in the same way as Alternative E.

12.11 One aspect of obscurity has been removed from the provision in Alternative F compared to the corresponding provisions of the Berne Convention. The legal operation of the so-called clause on "presumption of legitimation" of Article 14bis(2)(b) of the Berne Convention is based on the expression "authors ... may not ... object." Authors continue to be owners of their respective rights, but the rights are not exercisable against the user. Alternative F is similar in its effect but is phrased as a presumption of entitlement. The producer would be expressly and properly "entitled to exercise the exclusive rights of authorization provided for in this Treaty." Performers would still own their rights and they could assert them against third parties to the extent of any unauthorized use or, subject to applicable contracts or national legislation, claim remuneration from the producer. Producers would have certainty in their ability to exploit the audiovisual production in the marketplace.

12.12 In the same way as Alternative E, Alternative F would be mandatory for the Contracting Parties. Note 12.09 is equally valid as to Alternative F.

Article 12

Alternative E

Transfer

Alternative F

Entitlement to Exercise Rights

In the absence of written contractual clauses to the contrary, once the performer has consented to the audiovisual fixation of his performance, the producer shall be deemed to be entitled to exercise the exclusive rights of authorization provided for in this Treaty with respect to that particular fixation.

[Notes on Article 12, continued]

12.13 The proposed Instrument is directed to addressing international situations. The purpose of Alternative G is to build a bridge between different legal systems, leaving each country to determine its own policy concerning transfer, while still providing business certainty. It is based on the principles of private international law.

12.14 The main function of Alternative G would be to guarantee the recognition of different arrangements for the transfer of rights that are in use in different Contracting Parties. It does so providing in paragraph (1) that a transfer of any of the exclusive rights of authorization to the producer shall be governed by the law of the country most closely connected with the audiovisual fixation, a principle well established in private international law. This rule would be applicable in all cases of transfer of rights, whether by agreement or by operation of law. The rule would be rebuttable: it would be applicable only in the absence of any contractual clauses to the contrary, and like the previous alternatives, it would apply only to the exclusive rights of authorization and only to the particular audiovisual fixation.

12.15 This alternative would not impose on the Contracting Parties any model of transfer of rights or contractual arrangements. Contracting Parties would be free to choose their models according to their legal traditions or refrain from legislating about the transfer of rights. All Contracting Parties joining the proposed Instrument could maintain their own solutions. The only strict obligation for Contracting Parties would be to provide for the application of the law of the "country most closely connected." The ownership of rights would thus be determined only once and each audiovisual production would have its own set of rules that would follow the production throughout its international distribution.

12.16 Paragraph (2) of Alternative G provides for a hierarchy of three points of attachment for the choice of applicable law. The first point of attachment, the place of headquarters or habitual residence of the producer, is similar to that of Article 5(4)(c)(i) of the Berne Convention. It guarantees the application of a single law to all participating performers. The second criterion, nationality of the majority of the performers, and the third point of attachment, the principal place of filming, would serve the same objective of uniformity. There might be situations in which there is no Contracting Party which meets the criteria laid down in paragraph (2). In such situations ordinary rules of private international law apply.

12.17 During the preparatory stages it was also suggested that the proposed Instrument should be silent on the question of transfer of rights. According to Alternative H, which contains no provisions on transfer of rights or contractual arrangements, it would be a matter for legislation in the Contracting Parties whether or not to provide for a transfer of rights and to determine its nature and scope. In this respect Alternative H is similar to Alternative G.

12.18 The solutions proposed in Alternatives G and H provide for less harmonization and less certainty with respect to the position of producers than Alternatives E and F. Alternative G gives some certainty as to what national law will apply but does not harmonize national laws. Alternative H would perpetuate the current situation: the new rights would be introduced but they would operate without harmonization in this respect.

Alternative G

Law Applicable to Transfers

(2) The country most closely connected with a particular audiovisual fixation shall be

Notes on Article 13

13.01 Article 13 sets forth limitations of and exceptions to the rights of performers provided for in the proposed Instrument. It follows, as exactly as possible, the corresponding provisions in the WPPT. The only changes are consequences of the different subject matter addressed by the proposed Instrument.

13.02 Paragraph (1) reproduces the main principle of Article 15.2 of the Rome Convention, and it corresponds to Article 16(1) of the WPPT.

13.03 Paragraph (2) contains the provisions of the three-step test originally established in Article 9(2) of the Berne Convention. Corresponding provisions were used in Article 13 of the TRIPS Agreement, Article 16(2) of the WPPT, and Article 10(2) of the WCT. Interpretation of the proposed Article, as well as of this whole family of provisions, follows the established interpretation of Article 9(2) of the Berne Convention.

13.04 The Diplomatic Conference of 1996 adopted an agreed statement concerning Article 16 of the WPPT which is relevant for the consideration of Article 13 of the proposed Instrument (see paragraph 31 of the Memorandum).

Article 13
Limitations and Exceptions

Notes on Article 14

14.01 The provision on the term of protection in Article 14 follows the corresponding provision in the WPPT as closely as possible. The only change is a consequence of the different subject matter addressed by the proposed Instrument.

14.02 Article 14 is based on the recognition that a term of 50 years counted from the year of fixation is the new worldwide standard for the term of protection for performers established by the TRIPS Agreement, the WPPT and the proposed Instrument.

Article 14
Term of Protection

Notes on Article 15

15.01 Article 15 contains provisions on obligations concerning technological measures. It follows the corresponding provisions of the WPPT.

15.02 The provisions would introduce the obligation to provide adequate legal protection and effective legal remedies against unauthorized circumvention of technological measures. Qualifications "adequate" and "effective" should be understood to require on a national level provisions that provide genuine support for the rights provided for in the proposed Instrument. The effective protection of technological measures is an essential precondition for the establishment of a well-functioning legal framework of electronic commerce.

15.03 The expression "technological measures used by performers" [emphasis added] should be construed broadly, referring also to those acting on behalf of performers, including their representatives, licensees or assignees, including producers, service providers, and persons engaged in communication or broadcasting using performances on the basis of due authorization.

15.04 It should be recalled, as in the context of the Basic Proposal of the WPPT, that Contracting Parties are free to choose appropriate remedies according to their own legal traditions. The main requirement is that the remedies provided are effective and thus constitute a deterrent and sufficient sanction against the prohibited acts.

15.05 The interpretation of the proposed Article 15 follows the interpretation of the corresponding provisions of the WPPT and Contracting Parties should implement it in a parallel manner. It is expected that the types of provisions in national legislation that are sufficient to comply with the anti-circumvention requirements of the WPPT will be similarly sufficient to comply with the same requirements of the proposed Instrument.

Article 15
Obligations concerning Technological Measures

Notes on Article 16

16.01 Article 16 contains provisions on obligations with regard to rights management information. It follows the corresponding provisions of the WPPT as closely as possible.

16.02 The operative parts of the provisions in paragraph (1) and paragraph (2) are intended to be identical with the corresponding provisions of the WPPT. As defined in paragraph (2), rights management information may be attached to or associated with a fixed performance that is distributed, imported for distribution, broadcast, communicated or made available to the public in any way.

16.03 As in the WPPT, the provisions of Article 16 are minimum obligations: nothing precludes the adoption of broader national legislation on rights management information.

16.04 Finally, it should be pointed out that the use of electronic rights management information is voluntary. The obligations of Contracting Parties concerning rights management information apply only in cases where such information has been attached.

16.05 The interpretation of the proposed Article 16 follows the interpretation of the corresponding provisions of the WPPT and Contracting Parties should implement it in a parallel manner. It is expected that the types of remedies in national legislation that are sufficient to comply with the requirements of Article 19 of the WPPT will be similarly sufficient to comply with the remedy requirements of the proposed Instrument.

16.06 The Diplomatic Conference of 1996 adopted an agreed statement concerning Article 19 of the WPPT which is relevant for the consideration of Article 16 of the proposed Instrument (see paragraph 32 of the Memorandum).

Article 16
Obligations concerning Rights Management Information

(ii) to distribute, import for distribution, broadcast, communicate or make available to the public, without authority, unfixed performances or performances fixed in audiovisual fixations knowing that electronic rights management information has been removed or altered without authority.

Notes on Article 17

17.01 Article 17 states the fundamental principle of formality-free protection. The provisions of this Article reproduce exactly the corresponding provisions of Article 20 of the WPPT.

17.02 The wording of this Article follows the wording of the first half of the first sentence of Article 5(2) of the Berne Convention.

Article 17
Formalities

Notes on Article 18

18.01 The driving principle behind this Article is that no reservations are permitted to the proposed Instrument. The provision follows the model of the corresponding Article of the WPPT.

18.02 It has, however, been necessary to propose in Article 18 that reservation would be permitted in respect of one issue, namely Article 11(3) of the proposed Instrument which contains a possibility for Contracting Parties to make a reservation concerning the exclusive right of authorization of, or the right of remuneration for, broadcasting and communication to the public.

Article 18
Reservations

Notes on Article 19

19.01 Article 19 contains the provisions that govern application of the proposed Instrument in respect of performances that occurred before or after the proposed Instrument comes into force.

19.02 Under paragraph (1) Contracting Parties would be obligated to accord protection to fixed performances that exist at the moment of the coming into force of the proposed Instrument and to all performances that occur after its entry into force. This principle, and the application of it by as many Contracting Parties as possible, would provide a foundation for uniform introduction of this new form of protection. The protection would extend to both "old" and "new" performances. "Old" performances can, of necessity, only exist if fixed.

19.03 It is recognized that some Contracting Parties might encounter difficulties in the retrospective application of the proposed economic rights. In some legal systems the introduction of new rights might be more disruptive to established agreements than in others. For this reason, paragraph (2) introduces an option not to apply the provisions of Articles 6 to 11 of the proposed Instrument to fixed performances that exist at the moment of its entry into force. This possibility would concern both the exclusive rights of authorization and the rights to equitable remuneration for broadcasting and communication to the public that might be introduced in Contracting Parties on the basis of Article 11(2) of the proposed Instrument. In such a case, the protection of economic rights would be prospective; only "new" performances would enjoy economic rights. In these cases, other Contracting Parties could limit protection of economic rights with respect to such Contracting Parties to "new" performances only. The provisions of paragraph (2) do not apply to performers' moral rights under Article 5 of the proposed Instrument.

19.04 Paragraph (3) uses the well-established principle of non-retroactivity. It makes clear that the protection accorded by the proposed Instrument is not retroactive in the proper sense of the word. First, it specifies that the protection accorded by the proposed Instrument is without prejudice to any acts performed before the entry into force of the proposed Instrument. In this provision the expression "acts committed" refers to acts of use or exploitation of a performance that took place during the time when it was not protected under the proposed Instrument. Second, it safeguards previously acquired rights and previously concluded agreements.

19.05 Paragraph (4) allows each Contracting Party to make transitional arrangements concerning fixations of performances lawfully made before the entry into force of the

Article 19
Application in Time

[Notes on Article 19, continued]

proposed Instrument. The purpose of this provision is to guarantee a smooth introduction of the protection without causing the need for new negotiations between the producers and performers concerning "old" productions. Contracting Parties would be free to choose the design of the transitional provisions: they may provide for a limited duration for such arrangements; the legal effect of some of them may be permanent; they may or may not concern all the economic rights of performers; and they may include an obligation to provide for an equitable remuneration for performers for some types of exploitation. Contracting Parties who introduce transitional arrangements should take into consideration their economic implications. The objective of paragraph (4) is to enable Contracting Parties to provide appropriate protection for those who may have invested in good faith in the production and exploitation of audiovisual fixations at a time when the performances were not protected.

19.06 It would be possible to consider as an alternative to employ the provisions of Article 18 of the Berne Convention mutatis mutandis as was done in the WPPT. In fact, the effect of the proposed Article 19(1) and (4) would largely correspond to the effect of Article 18 of the Berne Convention.

19.07 However, the approach of Article 18 of the Berne Convention is not adopted in the proposed Instrument. There are several reasons underlying this proposal. First, the proposed form of protection is relatively new compared to that of the WPPT. Second, Article 18 of the Berne Convention does not allow limiting the retrospective protection as allowed in Article 19(2) of the proposed Instrument. Furthermore, the provisions of Article 18(3) of the Berne Convention, concerning transitional provisions, have in certain cases caused doubts as to their proper interpretation. The need for legal certainty is the guiding principle of the proposed Article 19(4). Finally, the Berne Convention does not contain clear provisions on acts undertaken, rights acquired, and contracts concluded prior to the entry into force of that treaty. In fact, the inclusion of the proposed Article 19(3) should be considered irrespective of the model for the rest of Article 19 chosen by the Diplomatic Conference.

Notes on Article 20

20.01 Article 20 contains provisions on enforcement of rights. The provisions of this Article reproduce exactly the corresponding provisions in Article 23 of the WPPT.

20.02 Paragraph (1) corresponds to the provisions of Article 36(1) of the Berne Convention.

20.03 Paragraph (2) reproduces the first sentence of Article 41.1 of the TRIPS Agreement.

Article 20
Provisions on Enforcement of Rights