WIPO

CRNR/DC/5 ORIGINAL: English DATE: August 30, 1996

1.01 Paragraph (1) of Article 1 contains a "Rome safeguard" clause modelled after Article 2.2 of 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"), which is the most recent of such provisions made in existing treaties. Nothing in the proposed Treaty shall derogate from existing obligations that Contracting Parties may have to each other under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (hereinafter referred to in these Notes as "the Rome Convention").

1.02 Paragraph (2) contains a corresponding clause which confirms that the proposed Treaty shall not interfere with the obligations that Contracting Parties may have to each other under treaties in the field of copyright in general, and in particular under the Berne Convention.

(1) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations done in Rome, October 26, 1961 (hereinafter the "Rome Convention").

(2) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties may have to each other under treaties for the protection of literary and artistic works, and in particular, nothing in this Treaty shall in any way prejudice the rights granted to authors under the Berne Convention for the Protection of Literary and Artistic Works.

2.01 When preparation of the proposed Treaty began in 1993, a set of definitions was drafted by the International Bureau and submitted to the Committee of Experts on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms (hereinafter referred to in these Notes as "the Committee of Experts" or "the Committee") in document INR/CE/I/2. In 1994, after the first two meetings of the Committee of Experts, the International Bureau, having taken into account suggestions made during discussions, resubmitted the draft definitions to the Committee (document INR/CE/III/2). At its third session, the Committee further discussed the proposed definitions. On the basis of these discussions a summary of all interventions on definitions was published as a supplement to the report of the meeting (INR/CE/III/3-Suppl.). In the proposals for the fifth session, in February 1996, Argentina submitted a comprehensive set of definitions and the United States of America took the view that the issue of definitions must be addressed. The European Community and its Member States indicated that discussions should proceed on the basis of agreements reached at previous meetings of the Committee of Experts and on the basis of the memoranda prepared by the International Bureau.

2.02 Article 2 contains definitions of the key terms used in the proposed Treaty. The definitions have been prepared on the basis of the proposals by the International Bureau and the February 1996 submission by Argentina taking into account comments and suggestions made in Committee sessions.

2.03 Item (a) defines the term "performers". A model for the definition of this term is found in Article 3(a) of the Rome Convention: " 'performers' means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works". The definition in the Rome Convention is thus entirely built on the performances of literary and artistic works. Article 9 of the Rome Convention contains a provision that permits Contracting States to extend the scope of protection: "Any Contracting State may, by its domestic laws and regulations, extend the protection provided for in this Convention to artists who do not perform literary and artistic works."

2.04 The proposed definition in item (a) follows the wording of the definition in the Rome Convention. It includes, however, two modifications. The first modification is the insertion, in accordance with the proposal made by Argentina, of the word "interpret" in the list of examples of the types of activities susceptible of performance. The second modification is an extension of the scope of artists covered by the definition. In accord with the suggestions made by Argentina and the International Bureau, the proposed definition of "performers" would include persons who perform expressions of folklore. In some cases, of course, the object of a performance may be a literary or artistic work, and performers of these works would enjoy protection even without the proposed extension. The effect of the proposed definition would be that this added group of performers would enjoy protection irrespective of the nature of the object of the performance.

2.05 As regards the need for protection of expressions of folklore, a reference should be made to discussions within the Committees of Experts. The proposed definition would extend international protection to a category of performance that is important to the cultural fabric of many nations.

2.06 Item (b) defines the term "phonogram". In Article 3(b) of the Rome Convention, the term was defined as follows: " 'phonograms' means any exclusively aural fixation of the sounds of a performance or of other sounds". This definition has been developed further in two respects in the proposed Treaty.

2.07 First, the definition of a phonogram is modernized by extending its coverage to phonograms that are not fixations of sounds. Phonograms may be produced for instance using digital technology that fixes data which can be used to generate sounds even though no "real" sounds have yet been produced. The data, of course, can be made audible by means of appropriate electronic equipment. Argentina, and earlier the International Bureau, suggested that the proposed definition include "digital representations of sounds". This approach would serve to modernize the Rome Convention definition, but the qualification "digital" may itself become obsolete as technology evolves. Accordingly, this qualification has been omitted.

2.08 Second, the expression "exclusively aural", as used in the Rome Convention, has been replaced for the reasons discussed above, namely that sounds may be fixed in the form of data before they have been even aurally perceptible. According to the second clause of the definition, audiovisual fixations, representations of sounds and images and the sound portion of either of these are not phonograms.

2.09 In item (c), two alternatives are presented for the definition of "fixation". Alternative A confines the definition solely to the fixations of sounds or representations thereof. This corresponds to the meaning of the word "fixation" as it has been used in the definition of "phonogram" in Article 3(b) of the Rome Convention. In Alternative B, the definition extends, in addition, to images and representations thereof. The definition uses the word "embodiment" for the material form of "fixation". The last part of the definition, "from which they can be perceived, reproduced or communicated", has been transferred from the first version of the definition presented by the International Bureau in 1993. It is apparent that the perceiving, reproducing or communicating may take place only with the aid of a machine or device. As this element was explicitly included in the proposal made by Argentina and in the 1994 proposals of the International Bureau, it has also been included. The definition does not qualify or quantify the duration of the life of the embodiment necessary to result in fixation. This is to say, the definition does not set any conditions regarding the requisite permanence or stability of the embodiment; there is no set requirement in the proposed Treaty.

2.10 It may be observed that no definition of "reproduction" has been proposed. This is because the meaning of the term is developed fully in Articles 7 and 14.

2.11 A substantial issue that must be considered by the Diplomatic Conference is whether to accord rights to performers in audiovisual fixations of their performances. In the provisions on rights of performers in the proposed Treaty, alternatives are presented in such a manner as to permit the Conference to visualize a Treaty with or without this new right. As noted above, item (c) contains the first instance of this presentation of alternatives. Corresponding alternatives are included in nine other provisions, namely paragraph (h) of Article 2, definition of "communication to the public"; Article 5, moral rights of performers; Article 6, economic rights of performers in their unfixed performances; Article 7, right of reproduction; Article 8, right of modification; Article 9, right of distribution and right of importation; Article 10, right of rental; Article 11, right of making available of fixed performances; and Article 21, term of protection.

2.12 It may be recalled that the issue of the scope of the rights of performers has come to the fore as a result of some five years of discussion in the area. The International Bureau of WIPO prepared a memorandum for the first session of the Committee of Experts on a Possible Protocol to the Berne Convention in November 1991 (document BCP/CE/I/2). The memorandum proposed (in paragraphs 56 to 70) that the Committee consider including the rights of producers of phonograms in the Protocol. While there was broad support for improving the level of protection accorded to these producers, most delegations and observers took the view that phonograms were not appropriate subject matter for a Protocol to the Berne Convention (see document BCP/CE/I/4, paragraph 110). It was also recognized that improvements in the rights of producers of phonograms could not be effectively discussed without also discussing the rights of the performers whose performances were included in the phonograms.

2.13 On September 29, 1992, the Assembly and the Conference of Representatives of the Berne Union established and set terms of reference for a Committee of Experts on a Possible Instrument on the Protection of the Rights of Performers and Producers of Phonograms. Subparagraph (viii) of the decision set the terms of reference for the Committee of Experts as covering "all questions concerning the effective protection of rights of performers and producers of phonograms". In the memorandum prepared by the International Bureau for the first session of the Committee, the International Bureau stated that there seemed to be two possible interpretations of the terms of reference (document INR/CE/I/2, paragraphs 8 and 9).

2.14 The first possible interpretation was that the protection of the rights of performers should only be discussed as far as the fixation of their performances in phonograms and the exploitation of such fixations were concerned. This would have excluded any consideration of a new right of performers in respect of audiovisual fixations of their performances. The second possible interpretation was that all issues concerning the rights of performers should be discussed, including the questions surrounding audiovisual fixations; in support of this interpretation, the observation was made that the terms of reference included no restriction or qualification as to what rights should be discussed.

2.15 The Committee held its first session in June-July 1993, and at the conclusion of the general debate in the first session, a consensus developed in favour of the second interpretation, following the observation that "nothing in the terms of reference determined by the Governing Bodies precluded a discussion of the question of possible provisions on the rights of performers in audiovisual productions...". The Director General of WIPO then stated that in due time the International Bureau would prepare a document on audiovisual fixations (see document INR/CE/I/3, paragraphs 63 and 64). 2.16 During the third session of the Committee of Experts, many delegations expressed support for the inclusion in the new instrument of a right of performers in audiovisual fixations (see document INR/CE/III/3, paragraph 31). A discussion paper on this subject was prepared by the International Bureau of WIPO for the fourth session of the Committee of Experts, held in September 1995 (document INR/CE/IV/3). Arguments were presented in favour of and in opposition to the inclusion of these new rights, and a review of the relevant provisions of the Rome Convention, the TRIPS Agreement and various national laws and regional instruments was undertaken.

2.17 For the fourth session in September 1995 and the fifth session in February 1996, Government members of the Committee and the European Community and its Member States were invited to deliver proposals for circulation as working documents in the Committee sessions. In the fourth session, two proposals were presented: the European Community and its Member States suggested that certain rights of performers should be extended to audiovisual fixations, and the United States of America presented a proposal confining the protection of performers to sound recordings only. In the fifth session of the Committee, Argentina, Brazil, the European Community and its Member States, the People's Republic of China, and the Sudan presented proposals that extended the protection of performers in audiovisual fixations of their performances to varying degrees. Canada, Japan, the United States of America, and Uruguay presented proposals that, with limited exceptions, were confined to sound recordings.

2.18 It became clear from these proposals and the deliberations of the Committee of Experts that it would not be possible to present a proposal that would reasonably satisfy the interests of the advocates on each side of this issue. Accordingly, the proposed Treaty presents each position as an alternative. This was discussed in some detail in Note 2.11 above. In each instance, Alternative A contains a proposal that is confined to sound, musical performances or musical performances fixed in phonograms only, and Alternative B contains a proposal extending protection to audiovisual fixations. This method of drafting acknowledges the disagreement and calls upon the participants in the Diplomatic Conference to negotiate toward a resolution. In order to further facilitate consideration of this matter and provide another model for the possible resolution of this issue a further alternative, Alternative C in Article 25(1), is presented. This alternative solution is based on the possibility of making a reservation concerning the scope of the rights of performers. This alternative could be used only if the Diplomatic Conference bases its decision on this matter on Alternatives B. The provisions concerning rights of performers would in that case extend the protection to audiovisual fixations of performances. By making the reservation provided for in Alternative C of Article 25(1), a party becoming a Contracting Party to the Treaty could limit the protection it grants according to the Treaty to sounds, musical performances and musical performances fixed in phonograms only.

2.19 "Producer of phonograms" was defined in Article 3(c) of the Rome Convention as "the person who, or the legal entity which, first fixes the sounds of a performance or other sounds". Item (d) adds only one element to this definition: for the reasons identified in Note 2.07, "representations of sounds" have been explicitly included. In all other respects, the definition follows the established provisions of the Rome Convention. The producer is the person who takes the initiative, coordinates and assumes economic and other responsibility for the first fixation of a phonogram, regardless of the technology used. It is worth pointing out that digitizing or "re-mastering" of existing fixations of performances is not a "first fixation", irrespective of the investment made in corrections, noise removal and other such alterations.

2.20 Item (e) defines the term "publication". In Article 3(d) of the Rome Convention, "publication" has been defined as follows: " 'publication' means the offering of copies of a phonogram to the public in reasonable quantity". The proposed definition includes two additional elements. First, it adds a consent requirement such that a performance or phonogram cannot be "published" under the proposed Treaty without the consent of the relevant rightholder; this makes the concept of publication in the proposed Treaty similar to that in the Berne Convention. Second, the proposed definition adds language to take into account the new technological environment in which publication now may take place. This addition reflects the proposals made by Argentina and the International Bureau of WIPO. The making available of copies to the public through the means referred to in Articles 11 and 18 of the proposed Treaty has been added as an act that constitutes publication. In these Articles, an exclusive right is proposed to cover the making available of phonograms by interactive on-demand transmissions. Making performances and phonograms available in the on-line context may be compared to the establishment of a global record shop, offering copies to everyone, everywhere, and still satisfying the condition of "reasonable quantity" because the availability of copies is virtually unlimited.

2.21 According to the proposed definition in item (f), "rental" of a phonogram means any transfer for consideration of the possession of a copy of a phonogram for a limited period of time. The definition corresponds the proposal made by Argentina. No definition of the "public lending" of a phonogram has been incorporated in the proposed Treaty. Normally, "public lending" means the transfer of the possession of an object for a limited period of time, free of charge, in a not-for-profit transaction.

2.22 The first part of the definition of "broadcasting" in item (g) follows the definition found in Article 3(f) of the Rome Convention, according to which " 'broadcasting' means the transmission by wireless means for public reception of sounds or of images and sounds". For the reason discussed in Note 2.07, transmissions of the representations of sounds or of images and sounds have been added to the proposed definition. The second part of the definition confirms in explicit terms that transmission for public reception by satellite is "broadcasting", if it fulfils the same requirements. The third part of the definition deals with encrypted satellite broadcasting. In situations where means for decrypting are made available to the public, the effect of the transmission corresponds to the effect of any traditional broadcasting from the point of view of both the public and the rightholders phonograms. Encrypted transmissions may be broadcasts just as transmissions of open signals are. A condition is that the means for decrypting are provided to the public by the broadcasting organization or with its consent.

2.23 The proposed definitions do not include a definition of "rebroadcasting"; this is a simplification as compared to the Rome Convention. According to Article 3(g) of the Rome Convention, "rebroadcasting" means the simultaneous broadcasting by one broadcasting organization of a broadcast by another broadcasting organization. Rebroadcasting is broadcasting. In rebroadcasting, the relevant sounds or sounds and images have already been broadcast. To import the definition from the Rome Convention does not seem necessary. It may be noted that the right of broadcasting in Article 7 does not cover rebroadcasting. This has been explicitly noted in the provision.

2.24 There is no definition of "communication to the public" in the Rome Convention. In item (h) a definition of "communication to the public" is offered. The definition has been tailored to the specific purposes of Articles 6, 12 and 19 of the proposed Treaty, which relate to rights in respect of communication. The definition has two parts. The first part defines "communication to the public" as transmission to the public by any medium other than broadcasting. The definition thus excludes wireless transmissions for public reception and covers any transmission by wire of an actual performance or a performance played from a phonogram to the public, when the public is not present in the place where the performance or the playing of the phonogram occurs. The definition also covers all retransmissions by wire of any other transmissions. Further examples are given in the Notes concerning each of the respective rights.

2.25 The distinction between broadcasting and communication is maintained simply by excluding broadcasting from the scope of communication to the public, as now defined. This is done purely for practical purposes and to avoid any confusion relating to the rights of performers in broadcasting and communication to the public of phonograms. These provisions lay the foundation for important economic rights accorded to the performers and producers of phonograms in the Rome Convention even if the level of protection they are accorded varies due to the reservations permitted under the Rome Convention.

2.26 Item (h) includes one of the presentations of the alternatives discussed in Note 2.11. Alternative A covers only the sounds of a performance, whereas Alternative B extends coverage to images in addition to sounds. It should be noted that this alternative is relevant only insofar as the rights of performers in their unfixed performances under Article 6 are concerned.

2.27 The second part of the definition in item (h) is included in the provision solely for the purposes of Articles 12 and 19. "Communication to the public" includes under these Articles making the sounds or the representations of sounds fixed in a phonogram audible to the public. Communication of this type may include the direct playing of phonograms to the public in a discotheque, by means of a jukebox, etc. This part of the definition is also meant to include making sounds fixed in phonograms audible to the public in an indirect way, such as through a radio or television set located in a cafe, restaurant, hotel lobby or other premises open to the public.

For the purposes of this Treaty:

(a) "performers" are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore; (b) "phonogram" means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds; an audiovisual fixation, the representation of sounds and images or the sound part of either is not a phonogram;

(c) "fixation" means the embodiment of

Alternative A: sounds,

Alternative B: sounds or images,

or of the representations thereof, from which they can be perceived, reproduced or communicated through an appropriate device;

(d) "producer of a phonogram" means the person, or the legal entity, who or which first fixes the sounds of a performance or other sounds, or the representations of sounds;

(e) "publication" of a fixed performance or a phonogram means

(i) the offering of copies of the fixed performance or the phonogram to the public, or

(ii) the making of the fixed performance or the phonogram available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them,

with the consent of the rightholder, and provided that copies are offered to the public in reasonable quantity;

(f) "rental" of a phonogram means any transfer of the possession of a copy of a phonogram for consideration for a limited period of time;

(g) "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals by satellite is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent;

(h) "communication to the public" of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of

Alternative A: sounds

Alternative B: the images or sounds

of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of Articles 12 and 19, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public.

3.01 The basic rules and principles of the Rome Convention are presently (as of August 1, 1996) applied by 51 Contracting States that have ratified or acceded to the Convention. The rules concerning the conditions for protection are in Articles 4 and 5. Article 4 establishes points of attachment for granting national treatment to performers, and Article 5 establishes points of attachment for granting national treatment to producers of phonograms.

3.02 These conditions for protection are quite well established. Moreover, a significant number of States have conformed their national legislation to them. It is therefore both feasible and sound to use these conditions when developing further the protection of performers and producers of phonograms.

3.03 In fact, this method was used when 117 states concluded the TRIPS Agreement. According to Article 1.3, Members of the Agreement shall accord the treatment provided for in the Agreement to the nationals of other Members, and "[i]n respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all members of the WTO members of those Conventions". In the same provision, the TRIPS Agreement even adopted the mechanism of notification provided for in Article 5.3 of the Rome Convention in respect of the choice of certain criteria for the protection of producers of phonograms.

3.04 It is proposed in Article 3 that a solution similar to that adopted in the TRIPS Agreement should be adopted in this proposed Treaty.

3.05 According to paragraph (1), the protection provided for in this Treaty would be accorded to the performers and producers of phonograms who are nationals of other Contracting Parties.

3.06 Paragraph (2) reproduces the language and method used in the TRIPS Agreement to incorporate the criteria for eligibility for protection contained in the Rome Convention. A clause is added to paragraph (2) obligating Contracting Parties to apply the relevant definitions in Article 2 of the proposed Treaty with respect to the criteria of eligibility in the Rome Convention. The relevant definitions are those of "publication", "fixation", "performers", "producer of a phonogram" and "phonogram".

3.07 Paragraph (3) permits Contracting Parties to make the choices permitted by Article 5.3 of the Rome Convention, but it obligates them to make a notification to the Director General of WIPO. For the sake of completeness, a similar obligation is set concerning Article 17.

3.08 The system created in Article 3 employs the established rules on points of attachment without reproducing or "re-inventing" them and, even more importantly, without deviating from them. This should streamline the negotiations on the proposed Treaty, the implementation of its obligations in national laws, and its legal interpretation, since it is based on well-known, established interpretations of an existing treaty.

3.09 Article 2 of the proposed New Copyright Treaty employs a similar device. However, it does not address the principle of national treatment laid down in the proposed Article 4 of the present document.

(1) Contracting Parties shall accord the protection provided under this Treaty to the performers and producers of phonograms who are nationals of other Contracting Parties.

(2) The nationals of other Contracting Parties shall be understood to be those performers or producers of phonograms that would meet the criteria for eligibility for protection provided under the Rome Convention, were all the Contracting Parties to this Treaty Contracting States of that Convention. In respect of these criteria of eligibility, Contracting Parties shall apply the relevant definitions in Article 2 of this Treaty.

(3) Any Contracting Party availing itself of the possibilities provided in Article 5(3) or, for the purposes of Article 5, Article 17 of the Rome Convention shall make a notification as foreseen in those provisions to the Director General of the World Intellectual Property Organization (WIPO).

4.01 Performers and producers of phonograms who fulfil the criteria of eligibility shall enjoy, in respect of performances and phonograms for which they are protected under the proposed Treaty, the rights granted by Contracting Parties to their own nationals. This basic clause on national treatment is laid down in Article 4.

4.02 The provisions of paragraph (1) have been formulated to put into use the framework proposed in Article 3. Each Contracting Party shall accord to the nationals of other Contracting Parties the treatment that it accords to its own nationals. Nationals of other Contracting Parties must be understood as defined in Article 3(2). National treatment is confined to the protection provided for in the proposed Treaty. These two points have been explicitly included in the provision. The provisions concerning eligibility for protection follow those in the TRIPS Agreement.

4.03 Paragraph (2) provides a clause formulated in accordance with Article 2.2 of the Rome Convention. According to these terms, national treatment for performers and producers of phonograms is subject to protection as set out in the relevant Articles of the proposed Treaty. It is also explicitly provided for in this provision that national treatment is subject to the limitations and exceptions specifically allowed in the proposed Treaty. The interpretation of this provision is intended to follow the interpretation of Article 2.2 of the Rome Convention.

(1) Each Contracting Party shall accord to nationals of other Contracting Parties, as defined in Article 3(2), the treatment it accords to its own nationals with regard to the protection provided for by this Treaty.

(2) The treatment provided for in paragraph (1) shall be subject to the protection specifically guaranteed, and the limitations and exceptions specifically provided for, in this Treaty.