WIPO

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

21.01 The Rome Convention sets a minimum term of protection for performers and producers of phonograms of twenty years. According to Article 14, the term is calculated from the year in which the fixation was made, or in which the performance took place.

21.02 The TRIPS Agreement sets a term of protection for performers and producers of phonograms of fifty years. According to Article 14.5 of the Agreement, the term shall last at least until the end of a period of fifty years calculated from the end of the calendar year in which the fixation was made or in which the performance took place.

21.03 Article 21 proposes a general term of protection for performers and producers of phonograms of fifty years.

21.04 According to paragraph (1), the term of protection for performers would be calculated from the end of the year in which a fixed performance was published. In the case of unpublished fixed performances, the term would be calculated from the end of the year in which the performance took place. This paragraph contains another presentation of the "2.11 alternatives". Alternative A would be the proper selection if the Diplomatic Conference determined that the protection of performers ought to be confined to musical performances only. Alternative B would be the proper selection if the protection of the proposed Treaty were extended to performances fixed in any medium.

21.05 According to paragraph (2), the term of protection for producers of phonograms would be calculated from the end of the year in which the phonogram was published, and in case of unpublished phonograms, from the end of the year in which the fixation was made.

21.06 The reasons for setting the term of protection at this proposed level are obvious. There is a clear trend towards a fifty-year term of protection for performers and for producers of phonograms. The International Bureau of WIPO proposed this term in its memoranda to the first session of the Committee of Experts in 1993 (document INR/CE/I/2) and to the third session in 1994 (document INR/CE/III/2).

21.07 A fifty-year term of protection for performers and producers of phonograms was suggested by Argentina, Canada, the European Community and its Member States, Japan, the United States of America, and Uruguay. Argentina and Uruguay proposed a term of fifty years post mortem for performers. In other proposals, the method of calculation was attached in different ways to the years of publication, fixation and/or performance. The proposal in the proposed Treaty makes an attempt to combine these approaches.

(1) The term of protection to be granted to performers under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which the

Alternative A: musical performance fixed in a phonogram

Alternative B: performance fixed in any medium

was published, and in case of unpublished fixed performances, from the end of the year in which the performance took place.

(2) The term of protection to be granted to producers of phonograms under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which the phonogram was published, and in case of unpublished phonograms, from the end of the year in which the fixation was made.

22.01 Article 22 contains provisions on obligations concerning technological measures.

22.02 According to paragraph (1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices or the offer or performance or services having the same effect. A condition for proscription is that the person performing the act knows or has reasonable grounds to know that the device or service will be used for or in the course of the unauthorized exercise of any of the rights provided for under the proposed Treaty. This knowledge requirement therefore focuses on the purpose for which the device or service will be used. The expression "knowing or having reasonable grounds to know" has the same meaning as the expression "knowingly or with reasonable grounds to know" in the provisions on enforcement in the TRIPS Agreement.

22.03 Paragraph (2) includes a provision on remedies against the unlawful acts referred to in paragraph (1). The reason for a special provision on remedies is the fact that the provisions on enforcement in the TRIPS Agreement, which are applicable according to Article 27 of the proposed Treaty, only concern "any act of infringement of intellectual property rights covered by this Agreement". The obligations established in the proposed Article 22 are more akin to public law obligations directed at Contracting Parties than to provisions granting "intellectual property rights".

22.04 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 a sufficient sanction against the prohibited acts.

22.05 Contracting Parties may design the exact field of application of the provisions envisaged in this Article taking into consideration the need to avoid legislation that would impede lawful practices and the lawful use of subject matter that is in the public domain. Having regard to differences in legal traditions, Contracting Parties may, in their national legislation, also define the coverage and extent of the liability for violation of the prohibition enacted according to paragraph (1).

22.06 Paragraph (3) contains the definition of a "protection-defeating device". It describes the characteristics of devices falling within the scope of the obligations under paragraph (1). To achieve the necessary coverage, the phrase "primary purpose or primary effect of which is to circumvent..." has been used rather than "specifically designed or adapted to circumvent...".

22.07 Proposals concerning the obligations of Contracting Parties in connection with protection-defeating devices and other technological measures were presented for the February 1996 session of the Committees of Experts by Argentina, Brazil, and the United States of America. The European Community and its Member States, and the Republic of Korea made a proposal on this issue for the May 1996 session of the Committees of Experts.

(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer or performance of any service having the same effect, by any person knowing or having reasonable grounds to know that the device or service will be used for, or in the course of, the exercise of rights provided under this Treaty that is not authorized by the rightholder or the law.

(2) Contracting Parties shall provide for appropriate and effective remedies against the unlawful acts referred to in paragraph (1).

(3) As used in this Article, "protection-defeating device" means any device, product or component incorporated into a device or product, the primary purpose or primary effect of which is to circumvent any process, treatment, mechanism or system that prevents or inhibits any of the acts covered by the rights under this Treaty.

23.01 Article 23 contains provisions on obligations with regard to rights management information.

23.02 According to paragraph (1) Contracting Parties shall make it unlawful for any person to remove or alter any electronic rights management information without authority, or to distribute, import for distribution or communicate to the public, without authority, copies of fixed performances or phonograms from which such information has been removed or in which it has been altered. A requirement for proscription is that the person who performs these acts does so knowingly. The obligation of Contracting Parties covers rights management information in electronic form only.

23.03 Paragraph (2) identifies the information that is within the scope of this Article. The scope has been limited to information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, and the owner of any right in the performance or phonogram and any numbers or codes that represent such information. The obligations of this provision cover such information only when it is attached to a copy of a fixed performance or a phonogram, or appear in connection with the communication of a fixed performance or phonogram to the public. Nothing precludes a broader field of application for provisions on rights management information in national legislation.

23.04 Contracting Parties may design the exact field of application of the provisions envisaged in this Article taking into consideration the need to avoid legislation that would impede lawful practices. Having regard to differences in legal traditions, Contracting Parties may, in their national legislation, also define the coverage and extent of the liability for violation of the prohibition enacted according to paragraph (1).

23.05 Contracting Parties may, when implementing the obligations established by this Article, specifically limit the scope of the provisions in their national law in such a way that technically non-feasible requirements are not imposed on broadcasting organizations and other users engaged in the duly authorized communication of fixed performances or phonograms or retransmission of broadcasts.

23.06 It should be pointed out that the use of electronic rights management information is voluntary. The obligations of Contracting Parties concerning rights management information only apply in cases where such information has been given.

23.07 It should be observed that the wilful removal or alteration of rights management information in order to achieve financial gain is a matter which falls within the scope of the provisions of the penal codes in most countries. This may be taken into account when the obligations of the Contracting Parties are considered by the Diplomatic Conference.

23.08 Proposals on rights management information were presented for the February 1996 session of the Committees of Experts by Brazil, Canada, and the United States of America.

(1) Contracting Parties shall make it unlawful for any person knowingly to perform any of the following acts:

(i) to remove or alter any electronic rights management information without authority;

(ii) to distribute, import for distribution or communicate to the public, without authority, copies of fixed performances or phonograms from which electronic rights management information has been removed or altered without authority.

(2) As used in this Article, "rights management information" means information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, and the owner of any right in the performance or phonogram and any numbers or codes that represent such information, when any of these items of information are attached to a copy of a fixed performance or a phonogram, or appear in connection with the communication of a fixed performance or a phonogram to the public.

24.01 Article 24 states the fundamental principles of formality-free protection and independence of protection which follow the model of the Berne Convention. The provisions are to be interpreted in an equivalent manner to those of the Berne Convention.

24.02 Paragraph (1) sets forth the principle of automatic protection. No formalities may be set as a condition for the enjoyment and exercise of rights provided for in the proposed Treaty. The wording of the provision follows the wording of Article 5(2) of the Berne Convention.

24.03 Paragraph (2) includes a provision on the independence of protection which is in line with the second half of the first sentence of Article 5(2) of the Berne Convention.

(1) The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.

(2) Such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the performance or phonogram.

25.01 The driving principle behind this Article is that no reservations are permitted to the proposed Treaty.

25.02 It has, however, been necessary to propose that reservations would be permitted in respect of two issues. These provisions have been taken in Article 25.

25.03 As was discussed in Note 2.18 above, an alternative solution is offered based on the possibility of limiting the scope of the rights of performers. It is proposed that any party, upon becoming a Contracting Party, could make a reservation and confine the protection accorded by them to performers to musical performances or to musical performances fixed in phonograms only. This proposal is included in paragraph (1) of Article 25 as Alternative C. This Alternative may be selected only if the Diplomatic Conference should decide to adopt Alternatives B in all the Articles listed in Alternative C of Article 25(1). (See also Note 2.18.)

25.04 Alternative D is presented in Article 25(1) for the case where the Diplomatic Conference does not base its decision on the scope of performers' rights on Alternatives B in the Articles listed in Alternative C of Article 25(1), and decides not to use the technique of reservation in this issue. In such a case the proposed paragraph (2) of Article 25 would replace the proposed paragraph (1).

25.05 The right to remuneration for broadcasting and communication to the public may be subject to reservation according to Article 12(3) and Article 19(3), subject to the provisions of Article 12(4) and Article 19(4) concerning subscription-based services.

25.06 The possibility of making reservations referred to in the preceding Note has been taken into the proposed Treaty in order to achieve the widest possible acceptance of the Treaty as a whole. Different degrees of reservation are permitted. Over a period of years there has been a substantial opportunity to observe the operation of Article 12 of the Rome Convention. Most Contracting States of that Convention have chosen not to make a total reservation to the right of remuneration. By constructing the proposed Treaty in a manner likely to achieve the widest acceptance, it may be possible to establish not only an important general level of international protection but also bring together countries that, between themselves, wish to maintain a higher level of protection.

(1) Any party upon becoming a Contracting Party to this Treaty, may, in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of:

(i) Article 2(c) and Article 2(h) to sounds only;

(ii) Article 5(1) and Article 6 to musical performances only; and

(iii) Article 7, Article 8, Article 9(1), Article 10, Article 11, and Article 21(1) to musical performances fixed in phonograms only.

[No such provision]

(2) Subject to the provisions of Article 12(3), 19(3), and paragraph (1) of this Article, no reservations to this Treaty shall be permitted.

26.01 Article 26 contains the provisions that govern application of the proposed Treaty in respect of performances, phonograms, rights and obligations that came into being before the proposed Treaty would come into force. By including these provisions in the proposed Treaty, more uniform worldwide application will be achieved.

26.02 According to paragraph (1), the proposed Treaty would be applicable to performances that took place and phonograms that were fixed before the date on which the Treaty would enter into force for the respective Contracting Parties. This approach differs from that adopted in the Rome Convention, but it is similar to the approach taken in the TRIPS Agreement. The objective of the provision is a wide harmonization of protection at least insofar as the time aspect is concerned. The reproduction and distribution of protected subject matter does not follow national or regional boundaries and the market has become truly international. It is therefore critical to avoid the discrepancies that might result from a less comprehensive solution.

26.03 The provisions of paragraph (1) are intended to be as clear as possible in order to avoid any legal uncertainty. Even though it goes without saying, an explicit statement has been included at the end of paragraph (1) repeating the fact that the duration of the protection granted to existing subject matter follows the provisions of Article 21.

26.04 Paragraph (2) makes clear that the protection accorded by the proposed Treaty shall not be retroactive. It safeguards previously acquired rights in the same way as Article 20.1 of the Rome Convention. In addition, it specifies that the protection accorded by the proposed Treaty is without prejudice to any acts performed, agreements concluded or rights acquired before the entry into force of the proposed Treaty for each Contracting Party.

26.05 Paragraph (3) allows transitional arrangements concerning fixations of performances and copies of phonograms lawfully made before the entry into force of the Treaty for each Contracting Party. Contracting Parties may fix a term during which the sale and rental of previously made fixations of performances or copies of phonograms may continue. Contracting Parties that avail themselves of this option should nonetheless take into consideration the economic implications of the term they fix. Contracting Parties should take into account both the legitimate interests of users who have invested in good faith in the production of copies at a time when fixed performances and phonograms were not protected, and the purpose of the proposed Treaty, which is to provide rightholders with effective protection.

(1) Contracting Parties shall also apply provisions of this Treaty to performances that took place and phonograms that were fixed before the date of entry into force of this Treaty for each that Contracting Party. The duration of the protection shall be determined according to the provisions of Article 21.

(2) The protection provided for in paragraph (1) shall be without prejudice to any acts concluded or rights acquired before the entry into force of this Treaty for each Contracting Party.

(3) Contracting Parties may provide for conditions under which fixations of performances and copies of phonograms which were lawfully made before the entry into force of this Treaty for each Contracting Party may be distributed to the public or rented during a limited period of time.

27.01 Two alternatives on enforcement are presented in Article 27. The choice between them has been left to the Diplomatic Conference. This is because the issue of enforcement is a horizontal one that must be considered in connection with the two other proposed Treaties published simultaneously with the present proposed Treaty. Each of the two alternatives is based on the enforcement provisions of Part III, Articles 41 to 61, of the TRIPS Agreement on enforcement.

27.02 Alternative A consists of the text of Article 27 and an Annex. Paragraph (1) introduces the Annex which contains the substantive provisions on enforcement. Paragraph (2) states that the Annex forms an integral part of the proposed Treaty. The provisions of the Annex have the same status as the provisions of the proposed Treaty.

27.03 Alternative B incorporates the enforcement provisions in the TRIPS Agreement by reference. The provisions of Alternative B obligate Contracting Parties to ensure that proper enforcement procedures, as specified in Part III, are available. To this end, Contracting Parties shall apply the relevant provisions of the TRIPS Agreement mutatis mutandis.

(1) Special provisions regarding the enforcement of rights are included in the Annex to the Treaty.

(2) The Annex forms an integral part of this Treaty.

Contracting Parties shall ensure that the enforcement procedures specified in Part III, Articles 41 to 61, of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, Annex 1C, of the Marrakesh Agreement Establishing the World Trade Organization, concluded on April 15, 1994 (the "TRIPS Agreement"), are available under their national laws so as to permit effective action against any act of infringement of the rights provided under this Treaty, including expeditious remedies to prevent infringements, and remedies that constitute a deterrent to further infringements. To this end, Contracting Parties shall apply mutatis mutandis the provisions of Articles 41 to 61 of the TRIPS Agreement.