WIPO

CRNR/DC/4 ORIGINAL: English DATE: August 30, 1996

1. In 1989, the Assembly and the Conference of Representatives of the Berne Union adopted the program of WIPO making a provision for convening a Committee of Experts to examine questions concerning a possible protocol to the Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as "the Berne Convention"). The objective of convening the Committee of Experts was to examine whether the preparation of a protocol to the Berne Convention should commence. According to the WIPO program for the 1990-91 biennium "[t]he 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)).

2. The Committee of Experts was convened in two sessions, the first in November 1991 and the second in February 1992. The sessions were started on the basis of working documents covering a broad range of topic areas including the subject matter of copyright, certain particular rights, the applicability of minima, and the obligation of granting national treatment. Among the qouestions concerning subject matter was the desirability of covering the rights of producers of sound recordings in the protocol.

3. The Assembly and the Conference of Representatives of the Berne Union determined in 1992 that the work of the Committee of Experts would be most effectively advanced by the formation of two Committees of Experts, one for the preparation of a possible protocol to the Berne Convention and the other for the preparation of a possible new instrument on the protection of the rights of performers and producers of phonograms (document B/A/XIII/2).

4. The Committee of Experts on a Possible Protocol to the Berne Convention was charged with the responsibility of considering ten specific items: (1) computer programs, (2) databases, (3) rental rights, (4) non-voluntary licences for sound recordings of musical works, (5) non-voluntary licences for primary broadcasting and satellite communication, (6) distribution rights, including an importation right, (7) duration of the protection of photographic works, (8) communication to the public by satellite broadcasting, (9) enforcement of rights, and (10) national treatment.

5. The Committee of Experts on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms was charged with the responsibility of discussing all questions concerning the effective international protection of the rights of performers and producers of phonograms. This broad charge left unresolved whether the Committee should consider the rights of performers to extend exclusively to the fixation of their performances in phonograms or also to audiovisual fixations.

6. The Committee of Experts on a Possible Protocol to the Berne Convention then held five further sessions, the third in June 1993, the fourth in December 1994, the fifth in September 1995, the sixth in February 1996 and the seventh in May 1996.

7. The Committee of Experts on a Possible Instrument for the Protection of the Rights of the Performers and Producers of Phonograms held six sessions, the first in June-July 1993, the second in November 1993, the third in December 1994, the fourth in September 1995, the fifth in February 1996 and the sixth in May 1996.

8. The last three sessions of the two Committees (referred to subsequently as the Committees of Experts) were convened on the same dates, and parts of the sessions were held jointly.

9. The work of the Committees of Experts was based on memoranda prepared by the International Bureau of WIPO until December 1994. Following the recommendation of the Committees of Experts, the Director General of WIPO invited Government members of the Committees and the European Commission to submit proposals for discussion at the September 1995 and February 1996 sessions.

10. As a result of this invitation from the Director General, the International Bureau received written proposals and comments from Argentina, Australia, Brazil, Canada, the European Community and its Member States, Japan, the People's Republic of China, the Republic of Korea, South Africa, the Sudan, the United States of America, and Uruguay.

11. The Committees of Experts recommended at the February 1996 sessions that a Diplomatic Conference for the conclusion of appropriate treaties be held in December 1996. From May 20 to 24, 1996, meetings were held in Geneva by the Preparatory Committee of the Proposed Diplomatic Conference, the General Assembly of WIPO and the Assembly of the Berne Union. The Preparatory Committee and the Assemblies decided that a WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions would be convened from December 2 to 20, 1996.

12. The Chairman of the Committees of Experts was entrusted at the February 1996 sessions with the task of preparing the draft texts ("the basic proposals") for the Diplomatic Conference; the WIPO International Bureau was to publish and circulate these draft texts by September 1, 1996, to the States, intergovernmental and non-governmental organizations to be invited to the Diplomatic Conference. The Director General of WIPO proposed that the International Bureau would prepare the draft of the final clauses of the treaty or treaties. The draft Final Clauses prepared by the Director General (document CRNR/PM/2) were examined by the Preparatory Committee of the Proposed Diplomatic Conference in May 1996.

13. In the introduction to the draft Final Clauses, the Director General of WIPO stated: "On the basis of the deliberations of the Committees of Experts, it is assumed that the aim of the Diplomatic Conference will be to adopt one or more multilateral treaty or treaties on questions of copyright, on questions of two branches (one concerning performing artists, the other concerning producers of phonograms) of neighboring rights and, perhaps, also on questions concerning a sui generis protection of data bases."

14. There is no decision on the number of treaties to be proposed for adoption by the Diplomatic Conference in December 1996. The Committees of Experts have made no recommendation on this issue, and after extensive discussion, the question was left open in the May 1996 meetings of the Preparatory Committee, the General Assembly of WIPO and the Assembly of the Berne Union. In this respect, the mandate given to the Chairman of the Committees of Experts was therefore open and included the possibility of establishing draft texts for one, two or three treaties.15. Basic Proposals for the substantive provisions of three treaties are proposed by the Chairman of the Committees of Experts:

1. "Treaty on Certain Questions Concerning the Protection of Literary and Artistic Works",

2. "Treaty for the Protection of the Rights of Performers and Producers of Phonograms",

3. "Treaty on Intellectual Property in Respect of Databases".

16. It is the assessment of the Chairman of the Committees of Experts that the expectations of the majority of Delegations participating in the meetings referred to in paragraphs 6, 7 and 11 are most closely met by proposing three draft texts. The Diplomatic Conference has the power to combine separate draft treaties into one single treaty should it find this course of action appropriate. A combined text would have several advantages, and such an option may be viewed as one of legal technique; on the other hand, a single text approach would entail certain political and doctrinal considerations. For example, Governments contemplating ratification of or accession to such a single text would have to analyze and consider implementation of the whole contents of the combined instrument.

17. The present set of draft substantive provisions of the Basic Proposals referred to in paragraph 15, of which the present document is one, have been prepared by the Chairman of the Committees of Experts according to decisions made by the Committees at their February 1996 sessions. The Basic Proposal for the Administrative and Final Clauses of all these proposed Treaties have been submitted by the Director General of WIPO in a separate document.

18. The present document sets forth the substantive provisions of the Basic Proposal of the Treaty on Certain Questions Concerning the Protection of Literary and Artistic Works. There are 16 Articles preceded by a Preamble. Each provision is accompanied by explanatory Notes.

19. 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 the proposals, and

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

20. The present Basic Proposal has been prepared on the basis of the proposals made during the work of the Committees of Experts and taking into account discussions in the Committees of Experts. These proposals have been carefully studied, and portions of them appear in several places in the proposed Treaty, sometimes in a reformulated or combined format. Additional elements have been introduced where necessary, and not all elements of all proposals are reflected in the proposed Treaty. In some instances, alternative solutions are proposed, but the number of proposed alternatives is limited. Alternatives have been designated in the text using capital letters in accordance with Rule 29(b) of the draft Rules of Procedure for the Diplomatic Conference. One of the proposed alternative solutions includes an Annex with special provisions on enforcement.

21. In the present Basic Proposal reference is often made without the document number to the proposals presented by the Government members and the European Community and its Member States for the sessions of the Committees of Experts. The proposals presented for the session of February 1 to 9, 1996 of the Committee of Experts on a Possible Protocol to the Berne Convention were the following:

The European Community and its Member States (BCP/CE/VI/2)

Argentina (BCP/CE/VI/3)

China (BCP/CE/VI/4)

Uruguay (BCP/CE/VI/5)

Australia (BCP/CE/VI/6)

Brazil (BCP/CE/VI/7)

The United States of America (BCP/CE/VI/8)

Japan (BCP/CE/VI/9)

Canada (BCP/CE/VI/10)

The Republic of Korea (BCP/CE/VI/11)

The Republic of Korea (BCP/CE/VI/11 Corr.)

22. Further contribution to the work of the Committees of Experts was brought about in the proposals presented by the participants in the African consultation meeting and the consultation meeting of the countries of Latin America and the Caribbean before the February 1996 sessions of the Committees of Experts. The documents are the following:

Burkina Faso, Cameroon, Côte d'Ivoire, Egypt, Ghana, Kenya, Malawi, Namibia, Nigeria, Rwanda, Senegal, Sudan, Togo, Tunisia and Zambia (BCP/CE/VI/14)

Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Ecuador, El Salvador, Honduras, Jamaica, Mexico, Panama, Paraguay, Peru, Trinidad and Tobago, Uruguay and Venezuela (BCP/CE/VI/15)

23. For the session of May 22 to 24, 1996 of the Committees of Experts the following proposals were presented:

The European Community and its Member States (BCP/CE/VII/1-INR/CE/VI/1)

The Republic of Korea (BCP/CE/VII/3-INR/CE/VI/3)

CONTENTS

Preamble

[Substantive Provisions]

Article 1: Relation to the Berne Convention

Article 2: Application of Articles 3 to 6 of the Berne Convention

Article 3: Notion and Place of Publication

Article 4: Computer Programs

Article 5: Collections of Data (Databases)

Article 6: Abolition of Certain Non-Voluntary Licenses

Article 7: Scope of the Right of Reproduction

Article 8:

Alternative A Right of Distribution and Right of Importation

Alternative B Right of Distribution

Article 9: Right of Rental

Article 10: Right of Communication

Article 11: Duration of the Protection of Photographic Works

Article 12: Limitations and Exceptions

Article 13: Obligations concerning Technological Measures

Article 14: Obligations concerning Rights Management Information

Article 15: Application in Time

Article 16: Special Provisions on Enforcement of Rights

[Administrative and Final Clauses]

0.01 During the preparatory stages that led to the production of this proposed Treaty, the expression "protocol" to the Berne Convention had been used tentatively to identify the new instrument under consideration. The proposed Treaty is, however, not an accessory to the Berne Convention. Its objective is rather to supplement and update the international regime of protection for literary and artistic works based fundamentally on the Berne Convention and recently also on the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (hereinafter referred to in these Notes as "the TRIPS Agreement"). In addition, membership of the Berne Union is not a requirement for becoming a party to the proposed Treaty. Consequently, no reference to the Berne Convention has been included in the title.

0.02 The Preamble sets forth the objective of the Treaty and the main arguments and considerations relating thereto.

0.03 The first paragraph of the Preamble expresses the most general objective of the proposed Treaty. It reflects the language of the Preamble of the Paris Act of the Berne Convention for the Protection of Literary and Artistic Works.

0.04 The second paragraph pronounces the recognition that new international rules and clarification of the interpretation of certain existing rules are needed to achieve the objective identified in the first paragraph, having regard to the manifold developments that call for improved protection in the field covered by the proposed Treaty.

0.05 The third paragraph acknowledges the connection of the proposed Treaty to the evolution of the overall environment of the intellectual property system: the accelerating development and convergence of information and communication technologies. This evolution extends its effects even to the convergence of the structures of industries and the content they produce, i.e. protected works and performances, and it has a profound impact on the production and distribution of the results of creative work by authors. While introducing certain provisions on "traditional issues", the proposed Treaty also includes solutions to urgent questions raised by the technological developments referred to above. The proposed Treaty is therefore part of a series of simultaneously published draft Treaties which could be characterized as "Global Information Infrastructure Treaties" in the field of copyright and rights related to copyright.

0.06 The Preamble of this proposed Treaty has been drafted in parallel with the Preamble of the simultaneously published proposed Treaty for the Protection of the Rights of Performers and Producers of Phonograms (hereinafter referred to in these Notes as "the New Instrument").

[End of Notes on the Title and the Preamble]

The Contracting Parties,

Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,

Recognizing the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments,

Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works,

Have agreed as follows:

(1) This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention.

(2) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention for the Protection of Literary and Artistic Works.

(3) Hereinafter, "Berne Convention" shall refer to the Paris Act of July 24, 1971 of the Berne Convention for the Protection of Literary and Artistic Works.

(4) Contracting Parties that are not countries of the Union established by the Berne Convention shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.

[End of Article 1]

2.01 The basic rules and principles of the Berne Convention are presently (August 1, 1996) applied by the 119 countries of the Berne Union. These rules and principles include conditions for protection, the basic principle of national treatment, principles of automatic protection and independence of protection and a mechanism for identification of the country of origin of a work. Since these principles are definitely established and such a great number of States have adapted their laws and legislative practices to them, it seems feasible and well-founded to build new protection for literary and artistic works upon these same principles.

2.02 It is therefore proposed in Article 2 that the provisions of Articles 3 to 6 of the Berne Convention, containing these central principles, should be applied in respect of the protection provided for in the present draft Treaty. Thus, these provisions would be applied to all new rights and aspects of protection introduced in the present draft without reproducing or "re-inventing" them. This is an economical solution as regards the negotiations on the proposed Treaty, the implementation of its obligations in national laws and in terms of the legal certainty that flows from the availability of established and well-known interpretations.

2.03 According to the proposed Treaty, the provisions of Article 3 of the Berne Convention would be applied in respect of the protection afforded by this Treaty. Paragraph (1) of Article 3 of the Berne Convention includes provisions on the main points of attachment: the nationality of the author and the place of publication of the work. Paragraph (2) assimilates habitual residence of an author to nationality. Paragraph (3) defines the expression "published works". Paragraph (4) defines simultaneous publication. Article 4 of the Berne Convention extends the protection of the Convention to authors of cinematographic works, works of architecture and certain other artistic works, even where the conditions of Article 3 are not met. Article 5 of the Berne Convention confirms in its paragraph (1) the principle of national treatment and the obligation to grant the rights specially granted in the Convention and in paragraph (2) the principles of formality-free or automatic protection and independence of protection. Paragraph (3) specifies that national law governs protection in the country of origin. Paragraph (4) lays down the rules that determine the country of origin of a work. In addition, a reference to Article 6 of the Berne Convention has been made in order to provide for the possibility of restricting in certain cases the protection given to works of non-nationals of other Contracting Parties.

2.04 All the rules listed in the preceding paragraph would be applicable to the protection provided for in the proposed Treaty.

2.05 Some of these rules might be considered to be superfluous or unnecessary in the context of the proposed Treaty. In spite of this, it is submitted that the incorporation of the four provisions by reference helps to place the rights contemplated by the proposed Treaty in the proper context of a comprehensive system.

2.06 Perhaps the greatest significance of this provision is that Contracting Parties restate on a high international level the cornerstone principle for the protection of literary and artistic works: the principle of national treatment.

2.07 The provisions of this Article are similar to the provisions proposed in Article 3 of the draft New Instrument as far as the criteria for eligibility for protection are concerned; provisions of an existing Treaty are applied by reference.

[End of Notes on Article 2]

Contracting Parties shall apply the provisions of Articles 3 to 6 of the Berne Convention in respect of the protection provided for in this Treaty.

3.01 Article 3(3) of the Berne Convention contains a definition of "published works". The first half of this provision offers the definition in positive terms: "The expression 'published works' means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work". The second half offers certain exclusions from the coverage of the definition: "The performance of a dramatic, dramatico-musical, cinematographmc or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication".

3.02 The definition of "published works" and the determination of "the country of origin" of a work according to Article 5(4) of the Berne Convention have an impact on the application of certain important operative clauses of the Convention. These include: application of the protection of the Convention to authors who are not nationals of one of the countries of the Union but whose works have been first published in one of those countries (Article 3(1)(b)); the comparison of terms of protection (Article 7(8)); and application of the Convention to works already in existence when their country of origin first joins the Convention (Article 18(1)).

3.03 One of the objectives of the proposed Treaty is to offer solutions to certain questions concerning the impact of new technologies on authors' rights. Numerous questions are posed, for example, by the interactive, on-demand transmission of works to the public directly into their homes or offices. New forms of electronic publishing have already replaced some forms of traditional dissemination of works. As far as the public is concerned, these new forms of publishing are functionally no different than the traditional forms: the works are available.

3.04 Inevitably, the question has arisen as to whether these new forms of publication should be subject and entitled to the same legal treatment as the traditional forms. Are works that have been disseminated by means of databases and communication networks "published works" in the sense of the Berne Convention? Is a new extended definition of "published works" needed?

3.05 In fact, the provisions of Article 3(3) of the Berne Convention may be applied quite satisfactorily to new forms of electronic publication. The key requirement of Article 3(3) is the availability of copies sufficient to satisfy the reasonable requirements of the public. Electronic publishing over a computer network may easily satisfy this requirement. In an open network environment, any member of the public may have access to copies that can be downloaded into the memory of his computer. Different technical and commercial conditions may, of course, apply in respect of access.

3.06 The conclusion above is further supported by another clause in the same provision of the Berne Convention according to which " 'published works' means works ... , whatever may be the means of manufacture of the copies". In traditional publishing, copies are first manufactured and then distributed. In electronic publication through networks, copies are produced at the recipient end after the act of dissemination. "The means of manufacture" in the former case is local production and in the latter case is "tele-reproduction". Nothing precludes the interpretation of Article 3 of the Berne Convention to include decentralized production of copies by means of communication networks.

3.07 The meaning of these provisions has become central to the question of whether and how the Berne Convention can continue to protect works in the new digital environment. To the extent that any nations may now have different opinions on the meaning of these provisions there are certainly well-founded reasons to require that all Contracting Parties interpret and apply these provisions in a uniform manner. This is why, in order to exclude any uncertainty, it is proposed that the interpretation presented in Notes 3.05 and 3.06 above should be confirmed by an explicit clause in the proposed Treaty.

3.08 After this interpretation of published works has been adopted, one further essential question arises: What is the place of publication? There are two possible answers. The place of publication could be any place where copies are available; this might include all countries of the world simultaneously. On the other hand, the place of publication could be considered to be the location of the "source" of the work. There is good reason to adopt the latter interpretation. The identification of a place of publication in the traditional framework is an acknowledgement that certain practical and economic activities have occurred in that location, and the same is true in the electronic publishing framework: the product of the author's efforts, although available anywhere, is located in only one place.

3.09 If, however, a work were considered to be published in all countries where copies of it are available, many unintended consequences would result. All works published electronically through networks in countries outside the Berne Union would be considered to have been published in every country of the Union. Members of the Union would thus be obligated to protect these works even in the absence of protection for their own works. When applying the Berne Convention rule on comparison of terms of protection, simultaneous publication in all countries of the Union would lead to problematic results. In the case of simultaneous publication in several countries of the Union, the country of origin is considered to be the country whose legislation grants the shortest term of protection. This would reduce the term of protection for works electronically published to the shortest term available anywhere in the Union.

3.10 The consequences discussed in the previous Note are unsatisfactory and lead to legal uncertainty. To leave this interpretation open would not encourage joining the Convention.

3.11 In paragraph (1) of Article 3, it is proposed that Contracting Parties should consider as "published works" such literary or artistic works which have been made available to the public by wire or wireless means so that it may fairly be said that copies are available. In particular, it is required that the works have been made available in such a way that members of the public may access these works from a place and at a time individually chosen by them. The wording of paragraph (1) follows closely the clause in Article 10 of the proposed Treaty concerning the making available aspect of the right of communication. A natural requirement is that the conditions specified in Article 3(3) of the Berne Convention must be fulfilled. Publication shall take place with the consent of the author, and the nature of the work must be taken into account when considering whether the availability of copies satisfies the reasonable requirements of the public.

3.12 In paragraph (2), it is proposed that Contracting Parties shall consider works identified in paragraph (1) to have been published in the Contracting Party where the necessary arrangements were made for availability of the works to the public. The place of publication is the country where the source data file is established and where access to the work has been provided for. The expression "necessary arrangements" is intended to mean such steps as are an absolute conditio sine qua non for the availability of the work. Mere linking or routing arrangements are not sufficient.

(1) When literary or artistic works are made available to the public by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them, so that copies of these works are available, Contracting Parties shall, under the conditions specified in Article 3(3) of the Berne Convention, consider such works to be published works.

(2) When applying Article 5(4) of the Berne Convention, Contracting Parties shall consider works referred to in paragraph (1) of the present Article to be published in the Contracting Party where the necessary arrangements have been made for availability of these works to members of the public.

4.01 Article 4 confirms that computer programs are protected as literary works, as that term is used in Article 2 of the Berne Convention. The provision is of a declaratory nature, and it explicitly codifies the established interpretation. The protection applies to the expression of a computer program in any form, including source code and object code.

4.02 This provision combines the proposals of Canada, the European Community and its Member States, the People's Republic of China, the United States of America, and Uruguay. The proposed Article does not include a second paragraph concerning exceptions as had been proposed by the European Community and its Member States, the United States of America, and Uruguay, because provisions to the same effect are proposed in Article 1(2) and in Article 12 as general rules.

4.03 Article 4 embodies the essential contents of the provisions of Article 10.1 of the TRIPS Agreement.

Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to the expression of a computer program in any form.

Collections of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any rights subsisting in the data or material contained in the collection.

(1) Within three years of ratifying or acceding to this Treaty, Contracting Parties shall no longer provide for non-voluntary licenses under Article 11bis(2) of the Berne Convention in respect of the broadcasting of a work.

(2) Within three years of ratifying or acceding to this Treaty, Contracting Parties shall no longer apply the provisions of Article 13 of the Berne Convention.

7.01 The author's right of reproduction in literary and artistic works has been laid down in Article 9 of the Berne Convention. According to paragraph (1) of that Article, "authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form". The scope of the right of reproduction is already broad. The expression "in any manner or form" could not be more expansive in scope. It clearly includes the storage of a work in any electronic medium; it likewise includes such acts as uploading and downloading a work to or from the memory of a computer. Digitization, i.e. the transfer of a work embodied in an analog medium to a digital one constitutes always an act of reproduction.

7.02 Article 7 of the proposed Treaty contains a proposal on the scope of the right of reproduction laid down in Article 9 of the Berne Convention. It is proposed that Contracting Parties would agree on their understanding of the provisions in the Convention.

7.03 In paragraph (1) of the present draft, it is proposed that Contracting Parties would articulate their agreement that the right of reproduction in the Berne Convention includes direct and indirect reproduction, whether permanent or temporary, in any manner or form.

7.04 The first element in this provision is the explicit inclusion of direct and indirect reproduction. This language may already be found in Article 10 of the Rome Convention concerning the rights of producers of phonograms. The purpose of this provision in the proposed Article 7 is to make it clear that the exclusive right may not be diminished simply because of the distance between the place where an original work is situated and the place where a copy is mede of it. Recording from a broadcast or wire transmission is as relevant as copying locally from one cassette to another. Any form of remote copying that is made possible by a communication network between the original and the copy is intended to come within the reach of this provision.

7.05 The second element in the proposal is intended to clarify the widely held understanding that both permanent and temporary reproduction constitute reproduction within the meaning of Article 9(1) of the Berne Convention. The result of reproduction may be a tangible, permanent copy like a book, a recording or a CD-ROM. It may as well be a copy of the work on the hard disk of a PC, or in the working memory of a computer. A work that is stored for a very short time may be reproduced or communicated further, or it may be made perceptible by an appropriate device.

7.06 It is emphasized that both of these elements described in the preceding Notes are well within any fair interpretation of Article 9(1) of the Berne Convention.

7.07 According to paragraph (2) of the present proposal, it would be a matter for the legislation of Contracting Parties to limit the right of reproduction in the case of temporary reproduction of a work, in whole or in part, in certain specific cases, namely where the purpose of the temporary reproduction is solely to make the work perceptible or where the reproduction is of a transient or incidental nature. Moreover, the temporary reproduction must always take place in the course of use of the work that is authorized by the author or permitted by law. The purpose of this provision is to make it possible to exclude from the scope of the right of reproduction acts of reproduction that are not relevant in economic terms. By reference to Article 9(2) of the Berne Convention, the limitations are further confined to cases that pass the three-step test of that provision. 7.08 The European Community and its Member States proposed for the May 1996 session of the Committees of Experts (document BCP/CE/VII/1-INR/CE/VI/1) that the existing treaty language in the Berne Convention should not be modified. The European Community and its Member States also proposed that the following points should be included in the "Records of the Conference"/"General Report": "Contracting Parties confirm that the permanent or temporary storage of a protected work in any electronic medium constitutes a reproduction within the meaning of Article 9(1) of the Berne Convention. This includes acts such as uploading and downloading of a work to or from the memory of a computer."

7.09 The proposal by the European Community and its Member States received a positive reaction from many Government members of the Committees. In the discussions at the May 1996 session, several Delegations proposed that a provision with the same contents should be included in the proposed Treaty.

7.10 The proposal included in paragraph (1) of this Article 7 is in substantial conformity with the proposal of the European Community and its Member States. At the same time, it meets the proposals referred to above in the discussions of the Committees of Experts.

7.11 As further support for the proposal in Article 7 the following points may be made.

7.12 Technological developments have had a great impact on the means that may be used for reproduction. Complete and accurate reproductions may be made quickly and in such a way that the material reproduced resides only a short while in the memory of a computer. In some cases, a certain work or piece of data may never be reproduced as a whole in the memory of a computer; only those parts of the material that are necessary to achieve a certain result may be reproduced, for instance in order to make a work perceptible. In such cases, successive reproduction of portions of a work may, over a period of time, cover the whole work.

7.13 Some relevant uses may, now or in the future, become totally based on a temporary reproduction.

7.14 Today, the countries of the Berne Union may interpret the right of reproduction in different ways. Some countries may consider that temporary reproduction, at least some acts of reproduction the results of which live only a very short time, does not fall under the right of reproduction, whereas other countries may take a contrary interpretation.

7.15 The interpretation of a right of such importance as the right of reproduction should be in fair and reasonable harmony all over the world. A uniform interpretation is necessary. Already, the need for legal certainty and predictability has been felt and found lacking in concrete cases. The need for a uniform interpretation is dictated by the need to secure the functioning of the copyright system in a digital future.

7.16 The only way to harmonize effectively the interpretation of the scope of the right of reproduction is to confirm that temporary reproduction falls within the scope of the right.

7.17 It has been asserted in the discussions in the Committees of Experts that a reproduction right of wide scope might have some unintended and problematic effects. In principle, there are two ways to avoid such effects. The first is to narrow the definition of reproduction. The second is by way of limitations of the right. It seems that the countries of the Berne Union, having freedom of interpretation with respect to Article 9(1), have already excluded the first possibility. This leaves only the second option: designing a limitations clause that makes it possible to avoid any problematic and unintended effects.

7.18 The provisions proposed in paragraph (2) are intended to focus on incidental, technical, and in some cases technically indispensable instances of reproduction which form part of another authorized or otherwise lawful use of a protected work. The cases shall pass the three-step test of Article 9(2) of the Berne Convention.

(1) The exclusive right accorded to authors of literary and artistic works in Article 9(1) of the Berne Convention of authorizing the reproduction of their works shall include direct and indirect reproduction of their works, whether permanent or temporary, in any manner or form.

(2) Subject to the provisions of Article 9(2) of the Berne Convention, it shall be a matter for legislation in Contracting Parties to limit the right of reproduction in cases where a temporary reproduction has the sole purpose of making the work perceptible or where the reproduction is of a transient or incidental nature, provided that such reproduction takes place in the course of use of the work that is authorized by the author or permitted by law.

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:

(i) the making available to the public of the original and copies of their works through sale or other transfer of ownership;

(ii) the importation of the original and copies of their works, even following any sale or other transfer of ownership of the original or copies by or pursuant to authorization.

(2) National legislation of a Contracting Party may provide that the right provided for in paragraph (1)(i) does not apply to distribution of the original or any copy of any work that has been sold or the ownership of which has been otherwise transferred in that Contracting Party's territory by or pursuant to authorization.

(3) The right of importation in paragraph (1)(ii) 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.

8.08 Alternative B allows for international exhaustion. Contracting Parties may, in their national legislation, provide that the right of distribution will not extend to distribution after the first sale or other transfer of ownership of the original or copies of a work by or pursuant to authorization. The first sale or transfer of ownership may have taken place in the Contracting Party or anywhere else.

8.09 No right of importation is provided for in Alternative B.

8.10 The two Alternatives presented in Article 8 reflect the genuine diverging views of many nations in this matter. On the level of an international agreement the Alternatives seem to exclude each other, are apparently contradictory and impossible to reconcile. As an intermediate solution the introduction of agreed conditional limitations of the right of distribution and right of importation, based on Alternative A in Article 8(1), could be explored. National legislation of a Contracting Party could for example provide that these rights do not apply to the distribution or importation of copies of works that have been sold with the consent of the author anywhere in the world, if copies of that work have not been made available in a Contracting Party in a quantity sufficient to satisfy the reasonable needs of the public, within an agreed period of time, e.g. one year, calculated from the publication of that work outside that Contracting Party. An alternative along these lines has not, however, been presented. Any third alternative would have required extensive international consultations which it would not have been possible to organize during the preparation of the proposed Treaty.

8.11 The rights provided for in the proposed Treaty, including the right of distribution, are minimum rights. Contracting Parties may provide a higher level of protection. A more restricted concept of exhaustion than international exhaustion represents a higher level of protection. Thus, the solution in Alternative B would not preclude any Contracting Party from applying any conditions or restrictions to the circumstances giving rise to exhaustion. National or regional exhaustion is in full conformity with this provision for those Contracting Parties that take this approach to the distribution right. Introduction of a right of importation is not excluded either.

8.12 The main contents of Alternative A follow the proposal made by the United States of America for the February 1996 session of the Committees of Experts. As far as the basic right is concerned, Argentina and Uruguay presented proposals with the same effect but without offering a proposal concerning exhaustion. Alternative B is based on the main approach taken in the proposals made by Australia, Brazil, Canada, Japan, and the Republic of Korea. The group of African countries favoured the international exhaustion of the right of distribution and supported the proposal made by Australia.

9.01 The Berne Convention does not contain any provisions on the rental of copies of literary and artistic works.

9.02 Rental rights concerning computer programs and cinematographic works were included in the TRIPS Agreement. Members of the TRIPS Agreement shall provide authors (and their successors in title) the right to authorize or prohibit the commercial rental to the public of originals or copies of their copyrighted works. As far as cinematographic works are concerned, the TRIPS Agreement provides for an impairment test: a Member shall be excepted from according the right in respect of cinematographic works unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors. Computer programs are excluded, under the TRIPS Agreement, from the scope of the right of rental in a single case: if the program is not the essential object of the rental, the obligation to grant a rental right does not apply.

9.03 The right of rental has been discussed in the Committees of Experts on several occasions. The trend has been towards a broad rental right covering all, or almost all, categories of works as an exclusive right.

9.04 Paragraph (1) of Article 9 provides authors of literary and artistic works with the exclusive right of authorizing the rental of the original and copies of their works. The right of rental differs from the right of distribution as laid down in Article 8. Paragraph (1) explicitly provides that the right of rental survives distribution, i.e. the first sale or other transfer of ownership. In principle, this right could cover all categories of works. However, in order to design a proposal that would be acceptable to as many Contracting Parties as possible, such a far reaching solution has not been proposed.

9.05 Paragraph (2) would maintain the exclusive right of rental for three specific types of works: computer programs, collections of data or other material, within the meaning of Article 5, in machine-readable form, and musical works embodied in phonograms. Contracting Parties could exempt other categories of works from this right, but they would not have this option if such rental led to widespread copying that materially impaired the exclusive right of reproduction. Thus, these categories of works would be accorded the same level of rental right as is accorded to cinematographic works in the TRIPS Agreement. The right of rental would be subject to the impairment test.

9.06 Paragraph (3) would allow Contracting Parties to exclude architectural works and works of applied art from the scope of this right.

9.07 The proposal is formulated in such a way that it would, compared to the TRIPS Agreement, raise the level of the right of rental for databases in machine-readable form and musical works embodied in phonograms by providing an unconditional exclusive right. Computer programs and these types of works would enjoy the same treatment. As regards databases in machine-readable form, this proposal would bring the protection of authors to the same level provided for the makers of databases according to the proposed new Treaty on the Intellectual Property in respect of Databases. The makers of databases would enjoy the exclusive right of rental as a part of the right of utilization. On the other hand, authors would enjoy the right of rental in respect of the musical works embodied in phonograms while, according to the New Instrument, the producers of phonograms would enjoy the right of rental in respect of phonograms.

9.08 Proposals in favour of the right of rental were presented for the February 1996 session of the Committees of Experts by Argentina, Australia, Brazil, Canada, the European Community and its Member States, Japan, the People's Republic of China, the Republic of Korea, the United States of America, and Uruguay. The proposal made by Australia was supported by the group of African countries. A broad right of rental was favoured by Argentina, Brazil, the European Community and its Member States, Uruguay, and the group of countries of Latin America and the Caribbean. The minimum level of protection in other proposals was based on the TRIPS Agreement, in some cases with additional elements, including an exclusive rental right of musical works embodied in phonograms and the extension of the impairment test to all categories of works.

9.09 In the TRIPS Agreement, computer programs have been excluded from the scope of the right of rental where the program is not the essential object of the rental. This aspect was included in some of the proposals made. However, this detail has not been included in the present proposal. The question of the essentiality of the object of rental may also concern other categories of works, such as databases. The proposed Treaty takes the position that this matter may most feasibly be settled at the national level.

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the rental of the original and copies of their works even after distribution of them by or pursuant to authorization by the author.

(2) Except in the case of computer programs, collections of data or other material in machine-readable form, and musical works embodied in phonograms, specific types of works may be excepted from the provisions of paragraph (1) unless the rental of such works has led to widespread copying that materially impairs the exclusive right of reproduction.

(3) Contracting Parties may provide in their national legislation that the provisions of paragraph (1) and paragraph (2) do not apply in respect of architectural works or in respect of works of applied art.

Notes on Article 10

10.01 In the Berne Convention the exclusive right of communication to the public of works has been regulated in a fragmented manner.

Without prejudice to the rights provided for in Articles 11(1)(ii), 11bis(1)(i), 11ter(1)(ii), 14(1)(i) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, including the making available to the public of their works, by wire or wireless means, in such a way that members of the public may access these works from a place and at a time individually chosen by them.