World Intellectual Property Organization

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

WORLD INTELLECTUAL PROPERTY ORGANIZATION

GENEVA

DIPLOMATIC CONFERENCE
ON
CERTAIN COPYRIGHT AND NEIGHBORING RIGHTS
QUESTIONS

Geneva, December 2 to 20, 1996


BASIC PROPOSAL
FOR THE SUBSTANTIVE PROVISIONS OF THE TREATY FOR THE PROTECTION OF THE RIGHTS OF PERFORMERS AND PRODUCERS OF PHONOGRAMS TO BE CONSIDERED BY THE DIPLOMATIC CONFERENCE

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


Draft Treaty
for the Protection of the Rights
of Performers and Producers of Phonograms

CHAPTER II

RIGHTS OF PERFORMERS

Notes on Article 5

5.01 Presently, performers do not enjoy moral rights under the Rome Convention or any other international agreement.

5.02 Article 5 lays down basic provisions on the moral rights of performers. They are modelled on Article 6bis of the Berne Convention, subject only to mutatis mutandis changes.

5.03 Paragraph (1) sets out the right of the performer to be identified as the performer of his

performances and to object to any distortion, etc. of them that would be prejudicial to his honour or reputation. As with authors' rights, alteration or modification per se does not concern moral rights: the question is whether the author's or performer's honour or reputation is damaged.

5.04 Paragraph (1) offers a choice of two alternatives concerning whether the rights of performers should extend to audiovisual fixations of their performances; this is one of the points discussed in Note 2.11 above that will require a decision by the Diplomatic Conference. Alternative A confines the protection of moral rights to musical performances only. Alternative B would extend the protection to all performances.

5.05 Paragraph (2) reproduces mutatis mutandis Article 6bis(2) of the Berne Convention, which concerns moral rights after the death of a performer.

5.06 Paragraph (3) reproduces the provisions of Article 6bis(3) of the Berne Convention.

5.07 Moral rights exist "independently of the performer's economic rights, and even after the transfer of those rights". No language regarding inalienability or inter vivos transfer of these rights is included in the proposal. The performer may exercise his moral rights, and he has the option not to exercise these rights; he may even waive them. To take an example, a performer may, in a contract, agree to refrain indefinitely from identifying himself as the performer of a particular performance. The position of a performer as the performer of a given performance cannot, of course, be transferred; no one can step into his shoes in this sense. The moral rights provisions in this Article have been formulated closely in line with Article 6bis of the Berne Convention, and the established interpretation of that Article should be used directly in construing the present Article.

5.08 Argentina, Brazil, Canada, the People's Republic of China, and the Sudan made proposals on moral rights for the February 1996 session of the Committees of Experts. The proposals made by Argentina and Brazil were the most detailed ones and were parallel in substance to Article 6bis of the Berne Convention.

[End of Notes on Article 5]

Article 5

Moral Rights of Performers

(1) Independently of a performer's economic rights, and even after the transfer of those rights, the performer shall

Alternative A: , as regards his musical performances, have the right

Alternative B: have the right

to be identified as the performer of his performances and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his performances that would be prejudicial to his honour or reputation.

(2) The rights granted to a performer in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the Contracting Party where protection is claimed. However, those Contracting Parties whose legislation, at the moment of their ratification of or accession to this Treaty, does not provide for protection after the death of the performer of all rights set out in the preceding paragraph may provide that some of these rights will, after his death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted under this Article shall be governed by the legislation of the Contracting Party where protection is claimed.

[End of Article 5]

Notes on Article 6

6.01 The Rome Convention and the TRIPS Agreement guarantee certain rights to performers in their unfixed performances. Article 7 of the Rome Convention provides performers with the right to prevent (1) the broadcasting and communication to the public of their unfixed performances without their consent except where the performance is already a broadcast performance, and (2) the fixation of their performance without their consent. Under the TRIPS Agreement, performers have the right to control the fixation of their unfixed performances in a phonogram.

6.02 Article 6 of the proposed Treaty provides performers with an exclusive right to control the fixation of their unfixed performances in any medium, and as is discussed below, the right may or may not be limited to musical performances.

6.03 The right under item (i) covers broadcasting and communication to the public as defined in Article 2, except that the right does not include rebroadcasting and retransmission by wire of a broadcast which are explicitly excluded from the scope of the right. The right of communication thus covers cable-originated transmissions and any other "original" wire or communication network transmissions of live performances, such as net radio, as well as communication by wire of a performance to another public not present in the hall where the performance takes place.

6.04 Item (ii) extends the right to the fixation of unfixed performances.

6.05 This Article contains, as do most of the other Articles pertaining to rights of performers, one of the presentations of the "2.11 alternatives". Alternative A confines the exclusive right to unfixed musical performances. It should be noted that Alternative A would cover broadcasting by radio and television, communication to the public and fixation of musical performances by audiovisual means. Alternative B would extend protection to cover all performances.

[End of Notes on Article 6]

Article 6

Economic Rights of Performers in their Unfixed Performances

Performers shall enjoy the exclusive right of

Alternative A: authorizing, as regards their musical performances:

Alternative B: authorizing:

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

(ii) the fixation of their unfixed performances.

[End of Article 6]

Notes on Article 7

7.01 Article 7 of the Rome Convention accords to performers the right of reproduction. The protection provided to performers by the Convention includes "the possibility of preventing" the reproduction of a fixation of their performances without their consent. This "possibility of preventing" is subject to certain specific conditions. The right applies (1) if the original fixation was made without the consent of the performer, (2) if the reproduction is made for purposes different from those for which the performer gave his consent, or (3) if the original fixation was permitted to be made on the basis of a limitation to the performer's rights and the reproduction of it is made for a different purpose.

7.02 Article 7 of the proposed Treaty contains provisions on performers' rights of reproduction.

7.03 In paragraph (1), it is proposed that performers shall enjoy the exclusive right of authorizing direct and indirect reproduction of their fixed performances, whether permanent or temporary, in any manner or form.

7.04 There are several elements in the proposal that differ from the provisions of the Rome Convention and that imply an improvement in the level of protection. Instead of providing "the possibility of preventing", it is proposed that an exclusive right would be granted to performers in clear terms and without any specific conditions.

7.05 One of these elements 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 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 fixed performance is situated and the place where a copy is made 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.

7.06 Another element in the provision is intended to clarify the widely held understanding that both permanent and temporary reproduction constitute reproduction. The result of reproduction may be a tangible, permanent copy like a phonogram, a recording or a CD-ROM. It may as well be a copy of the fixed performance on the hard disk of a PC, or in the working memory of a computer. A fixed performance that is stored for a very short time may be reproduced or communicated further, or it may be made perceptible by an appropriate device.

7.07 Under proposed Article 7, performers would enjoy the exclusive right of authorizing reproduction "in any manner or form". This element manifests the broad scope of the right. Thus, storage of a fixed performance in any electronic medium, for instance, constitutes reproduction. Reproduction includes such acts as uploading and downloading a fixed performance to or from the memory of a computer. Digitization, i.e. the transfer of a fixed performance embodied in an analog medium to a digital one constitutes always an act of reproduction. The expression "in any manner or form" is already found in Article 9(1) of the Berne Convention concerning the right of reproduction enjoyed by authors. It has been included in the present proposal to make it clear that there is no difference between the rights of performers and authors in this respect.

7.08 Paragraph (1) contains one of the presentations of the "2.11 alternatives". According to Alternative A the right of reproduction would apply only to musical performances fixed in phonograms, whereas Alternative B would extend the right to cover all performances fixed in any medium.

7.09 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 fixed performance, in whole or in part, in certain specific cases, namely where the purpose of the temporary reproduction is solely to make the fixed performance 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 fixed performance that is authorized by the performer 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 13(2), limitations are further confined to cases that pass the three-step test in that Article, which corresponds to the test in Article 9(2) of the Berne Convention.

7.10 For the May 1996 session of the Committees of Experts the European Community and its Member States proposed that the proposed Treaty include a clause on the right of reproduction of performers (document BCP/CE/VII/1-INR/CE/VI/1). 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 fixed performance in any electronic medium constitutes a reproduction. This includes acts such as uploading and downloading of a fixed performance to or from the memory of a computer."

7.11 The proposal by the European Community and its Member States received a positive reaction from many Government members of the Committee. 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.

7.12 The proposal included in paragraph (1) of this Article 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.

7.13 For the February 1996 session of the Committees of Experts Argentina made a proposal on the definition of "reproduction": " 'Reproduction' of a phonogram or of a performance fixed on a phonogram means the fact of making one or more originals or copies of all or a substantial part thereof, regardless of the method used to make the copy or the medium in which it is made, including storage of the phonogram or of the performance fixed on a phonogram in electronic form, regardless of the duration of the storage." The proposal corresponds in substance with the earlier proposal made by the International Bureau of WIPO. As was stated in Note 2.10, above no definition of "reproduction" is included in the proposed Treaty. It appears, however, that the operative clause on the right of reproduction includes all the essential aspects of the proposal made by Argentina.

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

7.15 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 fixed performance 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 fixed performance perceptible. In such cases, successive reproduction of portions of a fixed performance may, over a period of time, cover the whole fixed performance.

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

7.17 Today, different countries 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 a very short time, does not fall under the right of reproduction, whereas other countries may take a contrary position. The Rome Convention does not serve to harmonize the right of reproduction among the Contracting States of that Convention.

7.18 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 system of rights in a digital future.

7.19 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.

7.20 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 many countries, having freedom of interpretation with respect to these rights, 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.

7.21 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 fixed performance. The cases shall pass the three-step test of Article 13(2). 7.22 Note 11.07, concerning liability issues, applies with equal force to this Article.

7.23 Proposals concerning the performers' right of reproduction were presented for the February 1996 session of the Committees of Experts by Argentina, Brazil, the European Community and its Member States, Japan, the People's Republic of China, the Sudan, the United States of America, and Uruguay. Canada suggested that economic rights for performers in their performances fixed in phonograms would be included in the Treaty. The European Community and its Member States made a further proposal on this issue for the May 1996 session of the Committee of Experts.

7.24 Article 14 contains provisions concerning the right of reproduction of producers of phonograms; it corresponds closely to this Article. The Notes on Article 14 concerning comparable elements are parallel to those above.

[End of Notes on Article 7]

Article 7

Right of Reproduction

(1) Performers shall enjoy the exclusive right of authorizing the direct or indirect reproduction, whether permanent or temporary, of their

Alternative A: musical performances fixed in phonograms,

Alternative B: performances fixed in any medium,

in any manner or form.

(2) Subject to the provisions of Article 13(2), 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 fixed performance 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 fixed performance that is authorized by the performer or permitted by law.

[End of Article 7]

Notes on Article 8

8.01 Article 8 provides performers with the exclusive right to control modification of their performances.

8.02 The Article combines proposals made by Argentina, the United States of America, and Uruguay. Argentina used the term "modification" in its proposal, whereas the other proposals used the terms "adaptation" and "alteration". The term "modification" has been used in proposed Article 8 because it is sufficiently neutral and general and because it does not imply any interference with Article 2(3) of the Berne Convention, according to which certain adaptations and alterations of works may be protected.

8.03 The Article includes another instance of the "2.11 alternatives". Alternative A confines the right of modification to musical performances fixed in phonograms. Alternative B would extend the protection to any performances fixed in any medium.

8.04 It was suggested in sessions of the Committees of Experts that no separate right of alteration, adaptation or modification is necessary. It has been argued that any alteration or modification of a performance or a phonogram cannot occur without reproducing the fixation of the performance or the phonogram. This modification right is proposed, however, in order to cover any possible situation in which digital or other technological manipulation might be used to circumvent traditional notions of reproduction.

8.05 Article 15 contains provisions concerning the rights of producers of phonograms; it corresponds closely to this Article. The Notes on Article 15 concerning comparable elements are parallel to those above.

[End of Notes on Article 8]

Article 8

Right of Modification

Performers shall enjoy the exclusive right of authorizing the modification of their

Alternative A: musical performances fixed in phonograms.

Alternative B: performances fixed in any medium.

[End of Article 8]

Notes on Article 9

9.01 Performers do not have rights in respect of the distribution of their fixed performances or phonograms under any existing international agreement.

9.02 During the discussions that led to the proposed Treaty, it became clear that the principle of a general right of distribution for performers, accompanied by appropriate provisions on exhaustion has gained wide international acceptance. However, no convergence of views has developed in respect of the scope or extent of the right of distribution after the first sale or other transfer of ownership of a copy of a fixed performance. National legislation differs in this respect. In many jurisdictions, the principle is that in respect of a copy of a fixed performance the right of distribution ceases to exist, i.e. is exhausted, after the first sale of that copy. Views differ as to whether the exhaustion should be national, regional or global.

9.03 In many legal systems, the right of rental is considered to be a part of the general right of distribution, and it could even be dealt with in an international instrument in that context. For practical reasons, the right of rental is dealt with as a separate issue in Article 10 of the proposed Treaty. This structure follows the way in which these issues were approached during the preparatory stages.

9.04 Article 9 provides an exclusive right of distribution to performers in their fixed performances. Because of the differences described in Note 9.02, two alternatives are offered. Alternative E is based on the principle of national or regional exhaustion. Alternative F allows global or international exhaustion. The basic provision on the right of distribution is identical in both alternatives: performers shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their fixed performances through sale or other transfer of ownership. Public lending falls outside the scope of this provision since it does not involve a sale or other transfer of ownership.

9.05 Alternative E also provides a right of importation, in addition to the general right of distribution, to performers in respect of copies of their fixed performances.

9.06 Paragraph (1) of Alternative E provides for the exclusive right. Item (i), on the right of distribution, and item (ii), on the right of importation, in paragraph (1) of Alternative E both contain a set of "2.11 alternatives". According to both Alternatives A the right of distribution would apply only to musical performances fixed in phonograms, whereas in both Alternatives B any performances fixed in any medium would be covered.

9.07 Paragraph (2) allows Contracting Parties to provide in their national legislation that the right of distribution will not apply in respect of copies of fixed performances that have been distributed with the consent of the rightholder in the territory of a Contracting Party. The right of importation is not affected by the first sale or other transfer of ownership. Paragraph (3) excludes from the scope of the right of importation those situations where the importation is effected by a person solely for personal and non-commercial use.

9.08 Some proposals presented for the February 1996 session of the Committee of Experts suggested that regional economic integration areas with their own legislation in this field might be explicitly mentioned in the clause concerning national or regional exhaustion. The obligations of the Treaty apply only to regional economic integration areas or organizations that are Contracting Parties to the Treaty. The territories of these Contracting Parties consist of the territories of their member countries. Thus, there is no need to make separate mention of regional economic integration areas.

9.09 Alternative F 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 fixed performance by or pursuant to authorization. The first sale or transfer of ownership may have taken place in the Contracting Party or anywhere else.

9.10 No right of importation is provided for in Alternative F.

9.11 Paragraph (1) of Alternative F provides the exclusive right. It contains another presentation of the "2.11 alternatives". According to Alternative A the right of distribution would apply only to musical performances fixed in phonograms, whereas Alternative B would cover all performances fixed in any medium.

9.12 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 F 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.

9.13 The main contents of Alternative E follow the proposals made by Argentina, Brazil, the European Community and its Member States, the Sudan, the United States of America, and Uruguay for the February 1996 session of the Committees of Experts. Alternative F is based on the main approach taken in the proposal made by Japan.

9.14 Article 16 contains provisions concerning the right of distribution of producers of phonograms; it corresponds closely to this Article. The Notes on Article 16 concerning comparable elements are parallel to those above.

[End of Notes on Article 9]

Article 9

Alternative E

Right of Distribution and Right of Importation

(1) Performers shall enjoy the exclusive right of authorizing:

(i) the making available to the public of the original and copies of their

Alternative A: musical performances fixed in phonograms

Alternative B: performances fixed in any medium

through sale or other transfer of ownership;

(ii) the importation of the original and copies of their

Alternative A: musical performances fixed in phonograms,

Alternative B: performances fixed in any medium,

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 a fixed performance 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.

Article 9

Alternative F

Right of Distribution

(1) Performers shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their

Alternative A: musical performances fixed in phonograms

Alternative B: performances fixed in any medium

through sale or other transfer of ownership.

(2) A Contracting Party may provide that the right provided for in paragraph (1) does not apply to distribution after the first sale or other transfer of ownership of the original or copies of performances by or pursuant to an authorization.

[End of Article 9]

Notes on Article 10

10.01 The Rome Convention does not contain any provisions on the rental of copies of fixed performances or phonograms.

10.02 Article 10 provides performers with the exclusive right to authorize rental of the original and copies of their fixed performances. The rental of phonograms has been defined in Article 2.

10.03 Paragraph (1) contains another presentation of the "2.11 alternatives". According to Alternative A, the right of rental would apply only to musical performances fixed in phonograms, whereas Alternative B would cover all performances fixed in any medium.

10.04 Paragraph (2) contains a clause permitting Contracting Parties to maintain, for a limited period of time, any systems they may have for providing equitable remuneration to performers for the rental of copies. This clause has been modelled on Article 14.4 of the TRIPS Agreement. According to the TRIPS Agreement, Members "may maintain such systems provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders". Contracting Parties that, on April 15, 1994, had and continue to have such systems may maintain them; however, instead of leaving this possibility open for an indefinite period of time, a three-year time limit is proposed, beginning from the entry into force of the proposed Treaty.

10.05 The performers' right of rental in respect of their fixed performances was included in the proposals submitted for the February 1996 session of the Committees of Experts by Argentina, Brazil, the European Community and its Member States, Japan, the Sudan, the United States of America, and Uruguay. Japan confined its proposals to the rental of phonograms, and the United States of America confined its proposals to phonograms and musical performers only.

10.06 Article 17 contains provisions concerning the right of rental of producers of phonograms; it corresponds closely to this Article. The Notes on Article 17 concerning comparable elements are parallel to those above.

[End of Notes on Article 10]

Article 10

Right of Rental

(1) Performers shall enjoy the exclusive right of authorizing the rental of the original and copies of their

Alternative A: musical performances fixed in phonograms,

Alternative B: performances fixed in any medium,

even after distribution of them by or pursuant to authorization by the performer.

(2) Notwithstanding the provisions of paragraph (1), a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of performers for the rental of copies of their phonograms, may maintain that system for a period of 3 years from the entry into force of this Treaty.

[End of Article 10]

Notes on Article 11

11.01 Article 11 introduces a new right for performers: the exclusive right of making their fixed performances available to the public. Article 11 is based on the May 1996 proposal made by the European Community and its Member States.

11.02 The proposed new right covers the making available of fixed performances by wire or wireless means. A distinction is thus made between the distribution of copies of fixed performances in physical, tangible form, which is covered by the right of distribution under Article 9, and the making available of fixed performances by transmission.

11.03 The right of making available is limited to situations where members of public may access fixed performances from a place and at a time individually chosen by them. Thus, availability is based on interactivity and on on-demand access.

11.04 The proposed new right is designed to operate as a basic rule for the proper functioning of the electronic marketplace. The electronic or digital "record shop" can be compared to a record manufacturing plant or a CD factory. The functions of the manufacturing and distribution portions of the music industry and retail record shops may be replaced by a database open to the public for the direct delivery of music productions via communication networks to home computers.

11.05 The exclusive right laid down in Article 11 covers the making available of fixed performances through systems that permit direct access to a certain performance stored in a database. The expressions "may access" and "from a place and at a time individually chosen" cover directly all situations that are interactive.

11.06 There are, however, systems and services based on particular technical arrangements and programming structures which make it possible to access the fixed performances provided by the service without such access being fully interactive. Such services are offered on a subscription basis. From the point of view of the members of the public these services are "near to interactive". In many cases the only difference between interactive and "near to interactive" is in the time required for access. For both members of the public and rightholders, the shorter the delay, the closer the effect of such practices is to those of services that enable immediate access. The volume of protected subject matter that may be offered to the public in this way, combined with the fact that it may be made available through a number of parallel channels may add significantly to the ease of access. As the technical capacity of storage devices and communication networks grows these services are likely to develop further. They can be established by using cable or wire networks or by wireless means.

11.07 Practices described in the preceding Note could conflict with the normal exploitation of fixed performances and unreasonably prejudice the legitimate interests of rightholders. Single channels offered on a subscription basis without being part of such services do not have these effects.

11.08 The proposed right of making available of fixed performances in Article 11 is intended to cover both directly interactive ways of making available and services with similar effects, as described above. Both types of service fulfil the criteria laid down in Article 11 since members of the public may access fixed performances from a place and at a time individually chosen by theme.

11.09 The right proposed in Article 11 is an exclusive right. This is fundamental.

11.10 Article 11 contains another presentation of the "2.11 alternatives". According to Alternative A the right of making available would apply only to musical performances fixed in phonograms, whereas Alternative B would cover all performances fixed in any medium.

11.11 It is strongly emphasized that Article 11 does not attempt to define the nature or extent of liability on a national level. The proposed international agreement determines only the scope of the exclusive rights that shall be granted to performers in respect of their fixed performances. The question of who shall be 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.

11.12 Proposals concerning digital transmission were presented for the February 1996 session of the Committees of Experts by Argentina, the United States of America, and Uruguay. The group of countries of Latin America and the Caribbean considered that an exclusive right of digital transmission might be adopted by national legislation as a form of communication to the public or as a right of distribution by transmission. The European Community and its Member States made a proposal on this issue for the May 1996 session of the Committees of Experts.

11.13 Article 18 contains provisions concerning the right of making available of producers of phonograms; it corresponds closely to this Article. The Notes on Article 18 concerning comparable elements are parallel to those above.

[End of Notes on Article 11]

Article 11

Right of Making Available of Fixed Performances

Performers shall enjoy the exclusive right of authorizing the making available of their

Alternative A: musical performances fixed in phonograms,

Alternative B: performances fixed in any medium,

by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.

[End of Article 11]

Notes on Article 12

12.01 Article 12 of the Rome Convention grants to performers and to producers of phonograms the right to a single equitable remuneration if their phonogram is published for commercial purposes or if a reproduction of the phonogram is used for broadcasting or any communication to the public. The remuneration is paid by the user to the performer or to the producer of the phonogram or to both. In the absence of an agreement between these parties, national legislation may lay down the rules that govern the sharing of this remuneration.

12.02 The right to remuneration is subject to the reservations permitted in Article 16 of the Rome Convention. Under Article 16, any state may declare that it will not apply the provisions of that Article or that it will not apply them in respect of certain uses. Furthermore, a state may declare that it will not apply the right to remuneration in respect of phonograms the producer of which is not a national of another Contracting State. A Contracting State may also make the right to remuneration subject to reciprocity as regards the extent to which, and the term for which, another state grants protection to phonograms fixed by a national of the state making such a reservation.

12.03 Article 12 of the proposed Treaty accords to performers a right to equitable remuneration for the use of phonograms (in which their performances are fixed) published for commercial purposes or the use of a reproduction of such phonograms for broadcasting or any communication to the public. In general, this right corresponds to the right provided for in Article 12 of the Rome Convention.

12.04 Paragraph (1) does, however, propose additional elements that are not included in Article 12 of the Rome Convention. The right to remuneration would cover not only direct uses of phonograms but also indirect uses for broadcasting or for communication to the public. Remuneration should always be received both by performers and producers. In this way, the proposed Article 12 excludes the possibility that performers would not receive at least a single equitable remuneration.

12.05 "Broadcasting" and "communication" are defined in Article 2. The definition of broadcasting covers rebroadcasting as discussed in Note 2.23 above. Communication covers all cases of cable or wire transmission, such as cable-originated television transmissions and sound radio by cable or in communication networks. Because the right covers both direct and indirect uses of phonograms, all forms of retransmission by cable and wire also fall within the scope of the right. The definition of communication also covers situations where a phonogram is played directly to the public present at the same location. Indirect communication of a phonogram covers situations where a radio or television set or other apparatus is used to make a phonogram that is included in a broadcast or wire communication audible to the public in a cafe, restaurant, hotel lobby or other place that is open to the public.

12.06 Paragraph (2) permits Contracting Parties to establish rules governing the way in which remuneration is shared between performers and producers of phonograms and the way in which users pay the required remuneration. These are logistical concerns that are beyond the scope of international agreements.

12.07 As noted above, the right to remuneration under the Rome Convention is subject to reservations. This basic structure has been reproduced in the proposed Treaty. The reservations clause in paragraph (3) leaves the degree of reservation open, subject to the provisions of paragraph (4). Contracting Parties may make minute or more extensive reservations to the right of remuneration. Contracting Parties may even set reciprocity (as to particular terms, such as duration of protection, or complete reciprocity) as a condition for according the remuneration right to performers and producers of phonograms who fulfil the criteria of eligibility in relation to another Contracting Party. Paragraph (3) contains an explicit clause referring to reservations attached to reciprocity in Article 16.1(a)(iv) of the Rome Convention. However, Contracting Parties may not make any reservations to this Article, or the rights provided for therein, that would derogate from their obligations to each other under the Rome Convention; Article 1(1) of the proposed Treaty makes this clear.

12.08 In paragraph (4) it is proposed that the possibility of making a reservation to the right of remuneration laid down in this Article would not apply to broadcasting and communication to the public by wire or wireless means which is offered to the public in the form of subscription-based services. The reason for this proposal is that in the context of such services, fixed performances of performers are exploited directly for commercial gain.

12.09 The remuneration right proposed in this Article is an attempt to reconcile two extremes: on the one hand, there is the position that performers and producers of phonograms are not entitled to any right to remuneration in respect of the fruits of their labour; on the other hand, there is the position that the right to remuneration should be broad or even that the right should be exclusive. Written proposals concerning this matter were submitted for the February 1996 session of the Committees of Experts by Argentina, Brazil, the European Community and its Member States, Japan, the Sudan, the United States of America, and Uruguay.

12.10 Article 19 contains provisions concerning the right of remuneration of producers of phonograms; it corresponds closely to this Article. The Notes on Article 19 concerning comparable elements are parallel to those above.

[End of Notes on Article 12]

Article 12

Right to Remuneration for Broadcasting and Communication to the Public

(1) Performers shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes or reproductions of such phonograms for broadcasting or for any communication to the public.

(2) Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration. In the absence of either national legislation or an agreement between the performer and the producer of a phonogram, the performer and the producer of the phonogram shall equally share the single equitable remuneration between them.

(3) Any Contracting Party may, subject to the provisions of paragraph (4), in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all. In availing itself of this possibility, any Contracting Party may apply the provisions of Article 16.1(a)(iv) of the Rome Convention mutatis mutandis.

(4) The provisions of paragraph (3) do not apply to any broadcasting or any communication by wire or wireless means which can only be received on the basis of subscription and against payment of a fee.

[End of Article 12]

Notes on Article 13

 

13.01 Article 13 sets forth limitations of and exceptions to the rights of performers provided for in this Treaty.

13.02 Paragraph (1) reproduces the main principle of Article 15.2 of the Rome Convention. Contracting Parties may provide at the national level the same kinds of limitations or exceptions with regard to the protection of performers under the proposed Treaty as they provide with regard to the protection of copyright in literary and artistic works.

13.03 As drafted, the proposed Treaty incorporates (in this Article) the structure employed in Article 9(2) of the Berne Convention to limit the scope of permitted limitations of and exceptions to authors' reproduction rights. The proposed Treaty applies this structure to all limitations and exceptions permitted to be taken hereunder. The structure includes a three-step test. Any limitations or exceptions must be confined to certain special cases. No limitations or exceptions may ever conflict with the normal exploitation of the protected subject matter. Finally, any limitations or exceptions may never unreasonably prejudice the legitimate interests of the performer.

13.04 Paragraph (2) contains these provisions. Interpretation of them may follow the established interpretation of Article 9(2) of the Berne Convention.

13.05 Written proposals on limitations and exceptions were presented for the February 1996 session of the Committees of Experts by Argentina, Brazil, Canada, the European Community and its Member States, Japan, the Sudan, and the United States of America.

13.06 Article 20 contains provisions concerning limitations and exceptions to the rights of producers of phonograms; it corresponds closely to this Article. The Notes on Article 20 concerning comparable elements are parallel to those above.

[End of Notes on Article 13]

Article 13

Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works.

(2) Contracting Parties shall confine any limitations or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with the normal exploitation of the performance and do not unreasonably prejudice the legitimate interests of the performer.

[End of Article 13]