DATE: August 30, 1996
prepared by the Chairman of the Committees of Experts
on a Possible Protocol to the Berne Convention
and on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms
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.
10.02 The most comprehensive provision is found in Article 11(1)(ii) of the Berne Convention. This provision grants authors of dramatic, dramatico-musical and musical works the exclusive right of authorizing any communication to the public of the performance of their works, and paragraph (2) confirms that these authors enjoy the same rights in translations as they enjoy in their original works. Similar provisions concerning the communication to the public of recitations of literary works are set forth in Article 11ter. 10.03 According to Article 14(1)(ii) of the Berne Convention, authors of literary or artistic works have the exclusive right of authorizing the communication to the public by wire of their works adapted or reproduced by means of cinematography. Article 14bis(1) grants the same protection to the cinematographic works themselves.
10.04 The exclusive right in certain forms of communication to the public has been provided for in a special provision in Article 11bis(1) concerning all categories of literary and artistic works. These rights are (1) the right of broadcasting, (2) the right of communication to the public by wire and the right of rebroadcasting of a broadcast, and (3) the right of public communication of the broadcast by loudspeaker, etc. The provisions of paragraph (1)(i) of that Article cover, in addition to the right of broadcasting, the communication of works to the public "by any other means of wireless diffusion of signs, sounds or images".
10.05 Technological developments have made it possible to make protected works available in many ways that differ from traditional methods. This is a source of concern in connection with the categories of works that are not covered by the provisions on the right of communication in the Berne Convention. In addition, the interpretation of these provisions may differ. It has become evident that the relevant obligations need to be clarified and that the rights currently provided under the Berne Convention need to be supplemented by extending the field of application of the right of communication to the public to cover all categories of works.
10.06 The right of communication does not presently extend to literary works, except in the case of recitations thereof. Literary works, including computer programs, are presently one of the main objects communicated over networks. Other affected categories of works are also not covered by the right of communication, significant examples being photographic works, works of pictorial art and graphic works.
10.07 The European Community and its Member States made a proposal on the right of communication to the public for the May 1996 session of the Committees of Experts (document BCP/CE/VII/1-INR/CE/VI/1). The wording of the proposal was as follows: "Without prejudice to the rights provided for in Articles 11, 11bis, 11ter, 14 and 14bis of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorising 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".
10.08 The proposal made by the European Community and its Member States received a positive reaction from many Government members of the Committee. The proposal included in Article 10 reproduces the proposal of the European Community and its Member States.
10.09 The provisions of Article 10 consist of two parts. The first part extends the exclusive right of communication to the public to all categories of works, including any communication by wire or wireless means. It leaves the provisions of Articles 11(1)(ii), 11bis(1)(i), 11ter(1)(ii), 14(1)(i) and 14bis(1) applicable as they are in the Berne Convention.
10.10 The second part of Article 10 explicitly states that communication to the public includes the making available to the public of 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. The relevant act is the making available of the work by providing access to it. What counts is the initial act of making the work available, not the mere provision of server space, communication connections, or facilities for the carriage and routing of signals. It is irrelevant whether copies are available for the user or whether the work is simply made perceptible to, and thus usable by, the user.
10.11 One of the main objectives of the second part of Article 10 is to make it clear that interactive on-demand acts of communication are within the scope of the provision. This is done by confirming that the relevant acts of communication include cases where members of the public may have access to the works from different places and at different times. The element of individual choice implies the interactive nature of the access.
10.12 The features described in the preceding Note entail important delimitations of the relevant acts. The provision excludes mere private communication by using the term "public". Furthermore, the requirement of individual choice excludes broadcasting from the scope of the provision.
10.13 Article 10 leaves intact the rights provided for in the listed Berne Convention provisions. The proposal supplements existing Berne Convention protection by adding a right of communication to the public for all categories of works, including literary works, to which the existing right of communication does not apply. These elements in the proposal constitute new rights or an additional dimension to the right of communication. However, the features that have been confirmed in the second half, the "making available" part of the provision, could fall within a fair interpretation of the right of communication in the existing provisions of the Berne Convention. Nevertheless, other interpretations may also exist concerning obligations under the Convention. The objective of the proposal is to harmonize the obligations and to avoid any discrepancies that may be caused by different interpretations.
10.14 The expression "communication to the public" of a work means making a work available to the public by any means or process other than by distributing copies. This includes communication by wire or wireless means. The technology used may be analog or digital, and it may be based on electromagnetic waves or guided optical beams. The use of the non-restrictive term "any" in front of the word "communication" in Article 10, and in certain provisions of the Berne Convention, emphasizes the breadth of the act of communication. "Communication" implies transmission to a public not present in the place where the communication originates.
Communication of a work can involve a series of acts of transmission and temporary storage, such incidental storage being a necessary feature of the communication process. If, at any point, the stored work is made available to the public, such making available constitutes a further act of communication which requires authorization. It should be noted that storage falls within the scope of the right of reproduction (see Notes on Article 7).
10.15 As communication always involves transmission, the term "transmission" could have been chosen as the key term to describe the relevant act. The term "communication" has been maintained, however, because it is the term used in all relevant Articles of the Berne Convention in its English text. It deserves to be mentioned that in the French text the expression "la transmission publique" has been used in Articles 11 and 11ter, and the expression "la transmission par fil au public" has been used in Article 14 while "communication to the public" and "communication to the public by wire" are the English expressions. In Article 11bis of the French text of the Convention, the corresponding expression is "la communication publique".
10.16 It seems clear that, at the treaty level, the term "communication" can be used as a bridging term to ensure the international interoperability and mutual recognition of exclusive rights that have been or will be provided in national legislations using either the term "transmission" or the term "communication". The former refers to a technical transfer while the latter implies, in addition to the technical transfer, that something is communicated. For the purposes of the proposed Treaty, this slight difference between the terms is irrelevant. What is transferred or communicated is the work.
10.17 The term "public" has been used in Article 10 as it has been used in the present provisions of the Berne Convention. It is a matter for national legislation and case law to define what is "public". However, the aspects dealt with in Note 10.10 should be taken into account. The "public" consists of individual "members of the public" who may access the works from different places and at different times.
10.18 It is stated in Note 10.13 that one of the purposes of Article 10 is to "complete" the right of communication, extending it to all works. One may note that the proposed language of Article 10 does not explicitly include the limiting terms "performance" or "recitation" of a work as included in Article 11(1)(ii) and Article 11ter(1)(ii) of the Berne Convention. This is not an omission but a more modern formulation of the provision. The wording "communication ... of their works" also covers the communication of performances and recitations of works. It may be recalled, for example, that when Article 9 and Article 11bis were introduced into the Berne Convention, no corresponding clauses were considered to be necessary.
10.19 No specific reference is made to Article 11(2) or Article 11ter(2) of the Berne Convention, and no corresponding provisions have been proposed. It goes without saying that authors have the same rights with respect to translations, adaptations, arrangements and other alterations of their works. The work is the work even in translation, adaptation, etc. The example concerning Article 9 and Article 11bis may be reiterated here.
10.20 It should be pointed out that no rights are exhausted in connection with communication to the public. Should communication of a work result in the reproduction of a copy at the recipient end, the work may not be communicated further to the public or distributed to the public without authorization. Exhaustion of rights is only associated with the distribution of tangible copies.
10.21 It is strongly emphasized that Article 10 does not attempt to define the nature or extent of liability on a national level. This proposed international agreement determines only the scope of the exclusive rights that shall be granted to authors in respect of their works. Who is liable for the violation of these rights and what the extent of liability shall be for such violations is a matter for national legislation and case law according to the legal traditions of each Contracting Party.
10.22 In respect of rights provided for in Article 10, Contracting Parties may apply certain limitations and exceptions traditionally considered acceptable under the Berne Convention. The proposal is not intended to impair the ability of Contracting Parties to maintain in their national laws exceptions that have traditionally been viewed as "minor reservations".
10.23 Proposals on the rights of transmission, communication to the public, public performance and the right of digital transmission were presented for the February 1996 session of the Committee of Experts by Argentina, Australia, Canada, Japan, and the United States of America. The group of countries of Latin America and the Caribbean expressed a recognition of a general right of communication to the public by any means or process.
[End of Notes on Article 10]
Right of Communication
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.
[End of Article 10]