International Protection of Copyright

¨Background

¨The need for international protection of intellectual property became evident when foreign exhibitors refused to attend the International Exhibition of Inventions in Vienna in 1873 because they were afraid their ideas would be stolen and exploited commercially in other countries.

¨1883 marked the birth of the Paris Convention for the Protection of Industrial Property, the first major international treaty designed to help the people of one country obtain protection in other countries for their intellectual creations in the form of industrial property rights and  The Paris Convention entered into force in 1884 with 14 member States, which set up an International Bureau to carry out administrative tasks, such as organizing meetings of the member States.

¨In 1886, copyright entered the international arena with the Berne Convention for the Protection of Literary and Artistic Works. The aim of this Convention was to help nationals of its member States obtain international protection of their right to control, and receive payment for, the use of their creative works such as:

¨novels, short stories, poems, plays;

¨songs, operas, musicals, sonatas; and

¨drawings, paintings, sculptures, architectural works.

¨Like the Paris Convention, the Berne Convention set up an International Bureau to carry out administrative tasks. In 1893, these two small bureaux united to form an international organization called the United International Bureaux for the Protection of Intellectual Property (best known by its French acronym BIRPI).

¨Based in Berne, Switzerland, with a staff of seven, this small organization was the predecessor of the World Intellectual Property Organization of today - a dynamic entity with about hundred countries around the world, and with a mission and a mandate that are constantly growing.

¨As the importance of intellectual property grew, the structure and form of the Organization changed as well. In 1960, BIRPI moved from Berne to Geneva to be closer to the United Nations and other international organizations in that city.

¨A decade later, following the entry into force of the Convention Establishing the World Intellectual Property Organization, BIRPI became WIPO in 1967, undergoing structural and administrative reforms and acquiring a secretariat answerable to the member States.

¨In 1974, WIPO became a specialized agency of the United Nations system of organizations, with a mandate to administer intellectual property matters recognized by the member States of the UN.

¨In 1978, the WIPO Secretariat moved into the headquarters building that has now become a Geneva landmark, with spectacular views of the surrounding Swiss and French countryside.

¨WIPO expanded its role and further demonstrated the importance of intellectual property rights in the management of globalized trade in 1996 by entering into a cooperation agreement with the World Trade Organization (WTO).

¨The impetus that led to the Paris and Berne Conventions - the desire to promote creativity by protecting the works of the mind - has continued to power the work of the Organization, and its predecessor, for some 120 years. But the scope of the protection and the services provided have developed and expanded radically during that time.

¨In 1898, BIRPI administered only four international treaties. Today its successor, WIPO, administers 24 treaties (three of those jointly with other international organizations) and carries out a rich and varied program of work, through its member States and secretariat, that seeks to:

¡harmonize national intellectual property legislation and procedures,

¡provide services for international applications for industrial property rights,

¡exchange intellectual property information,

¡provide legal and technical assistance to developing and other countries,

¡facilitate the resolution of private intellectual property disputes, and

¡marshal information technology as a tool for storing, accessing, and using valuable intellectual property information.

¨1883:Paris Convention for the Protection of Industrial Property

¡Paris Union

¨1886Berne Convention for the Protection of Literary and Artistic Works

¡Berne Union

¨1893: BIRPI -The United International Bureau for the Protection of Intellectual Property

¨1967 July 14: The Convention Establishing the World Intellectual Property Organization was signed at Stockholm and…

¨26 April, the Convention Establishing WIPO originally entered into force in 1970.

¨WIPO’s Member States decided in 2000 to designate an annual World Intellectual Property Day. They chose April 26, the date on which the Convention establishing WIPO originally entered into force in 1970.

¨Began to Celebrate 1st World Intellectual Property Day in 2001 on 26 April

¨1974: UN’s specialized Agency

¨Copyright Protection Mechanism: An Introduction

¨Protection of Copyright

¡National Protection Mechanism

¡International Protection Mechanism

¨National Protection Mechanism

—Laws

—Regulations

—Police Authority

—Public Prosecutors

—Courts

—Custom Office

—NCRO

—CMOs/ MRCSN/SSN

—NGOs/CPSN

—Private Initiators

—The Owner

¨International Protection Mechanism

—International Mechanism

—International Treaties

—COPYRIGHT

—Copyright/ Author’s right

—Neighbouring Right

—International Institutions

—UN

—WTO/TRIPS

—WIPO

—Interpol

—ICJ

—ICMOs

—INGOs

—Regional Organizations

¨International Treaties

¨Copyright / Author’s right

¡Bilateral Treaties

úChace Act, 1891 US

úBAJuly 1 1891 Stat. 981 (Proclamation No. 3 UK/France) /

úBA April 15 1892 Stat. 1021 (Proclamation No. 24 Germany)

¡Multilateral Treaties

úBerne Convention

úWIPO Copyright Treaty

úUniversal Copyright Convention

¡Regional Treaties

úInter-American Copyright Agreement

úThe European Union

¡Universal Document

¨Universal Document

UNDHR Article 27

¨(1)  Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

¨(2)   Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

¨International Covenant on Economic, Social and Cultural Rights 1966/1976

International Covenant on Economic, Social and Cultural Rights 1966/1976  Article 15

­The state parties to the present convent recognize the right of everyone:

 To take part in cultural life;

 To enjoy the benefits of scientific progress and its applications;

 To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

­The Steps to be taken by the state parties to the present covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

­The states Parties to the present covenant undertake to respect the freedom indispensable for scientific research and creative activity.

­… … Recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

¨Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples 1993 , Geneva

¨Commission on Human Rights, Sub-commission on Prevention of Discrimination and Protection of Minorities. Working Group on Indigenous Population

¨Neighbouring Right

¨Berne Convention

For the Protection of Literary and Artistic Works, 1886

¨Introduction

¨Principal Provisions

¨The Latest (Paris) Act of the Convention

¨Administration

¨Introduction

¨September 9, 1886,

¨the oldest international treaty in the field of copyright.

¨It is open to all States.

¨Instruments of accession or ratification are deposited with the Director General of the World Intellectual Property Organization (WIPO).

¨Aim: “to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works.”

¨Article 1 lays down that the countries to which the Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.

¨Principal Provisions

¨Basic Principles

¨Works Protected

¨Owners of Rights

¨Persons Protected

¨Minimum Standards of Protection

¨Rights Protected

¨Limitations

¨Duration of Protection

¨Application in time

¨Basic Principles

¨The Convention rests on three basic principles.

¨Principle of “national treatment”

¨Principle of “automatic protection”

¨Principle of “independence of protection”

¨Works Protected

¨Non-limitative (illustrative and not exhaustive) list of such works, which include any original production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.

¨Derivative works:  translations, adaptations, arrangements of music and other alterations of a literary or artistic work,

¨Optional works: official texts of a legislative, administrative and legal nature

¨Works of applied art

¨Lectures, addresses and other oral works

¨Works of folklore

¨The possibility of making the protection of works or any specified categories thereof subject to their being fixed in some material form. For instance, protection of choreographic works may be dependent on their being fixed in some form.

¨May give protection to unpublished works where the identity of the author is unknown,

¨Cinematographic works: ownership of copyright is a matter for legislation

¨Persons Protected

¨Authors of works are protected, in respect of both their unpublished or published works if,

¨according to Article 3, they are nationals or residents of a member country;

¨alternatively, if, not being nationals or residents of a member country,

¡they first publish their works in a member country or simultaneously in a non-member and a member country.

¨Rights Protected

—Economic Rights

—Reproduction

—Translation

—Performance

—Making Publicly available

—Broadcast and communicate to the public, by wire, rebroadcasting or loudspeaker or any other analogous instrument, the broadcast of the work

—Public recitation

—Make adaptations, arrangements or other alterations of a work

—make cinematographic adaptations and reproductions of a work

—Moral Rights

—Optional and applicable only if legislation in the country to which the author belongs permits.

—Article 6bis provides for “moral rights”

—Claim authorship of his work

—Object to any distortion, mutilation or other modification

—Object to any  derogatory action in relation to, the work which would be prejudicial to his honor or reputation.

¨Limitations

—Articles 9(2) (reproduction in certain special cases),

—10 (quotations and use of works by way of illustration for teaching purposes),

—10bis (reproduction of newspaper or similar articles and use of works for the purpose of reporting current events) and

—11bis(3) (ephemeral recordings).

—Compulsory licenses — in Articles 11bis(2), for the right to broadcast and communicate to the public, by wire, rebroadcasting or loudspeaker or any other analogous instrument, the broadcast of the work, and

—13(1) for the right of recording musical works.

¨The Latest (Paris) Act of the Convention

—The question of incorporating into the Convention special provisions for the developing countries was initially mooted at an African Copyright Meeting in Brazzaville in 1963.

— This matter was pursued at the Conference called in Stockholm in 1967 for revision of the Berne Convention,  where a “protocol regarding developing countries” known as the Stockholm Protocol was added to the Convention.

—The Appendix to the Paris (1971) Act of the Berne Convention provides for special faculties open to developing countries concerning translation and reproduction of works of foreign origin.

—The Appendix augments the Convention’s existing exceptions to the author’s exclusive rights, including those of reproduction and translation (Articles 2bis, 9(2), 10(2), 10bis) and the ten-year rule (Article 30(2)(b)).

—According to this Appendix, countries which are regarded as developing countries in conformity with the established practice of the General Assembly of the United Nations may, under certain conditions, depart from the minimum standards of protection provided for in the convention.

¨The Appendix provides for the possibility of granting non-exclusive and non-transferable compulsory licenses in respect of

¡(i) translation for the purpose of teaching, scholarship or research, and

¡(ii) reproduction for use in connection with systematic instructional activities, of works protected under the Convention

¨This exceptional regime concerns two rights,

¡The right of translation and

¡The right of reproduction.

¨The right of translation

—Compulsory licenses for translations can be granted for languages generally spoken in the developing country concerned. There is a distinction between languages in general use also in one or more developed countries (English, French and Spanish, for example) and those not in general use there (largely local languages of developing countries).

—In the case of a language in general use in one or more developed countries, a period of three years, starting on the date of the first publication of the work has to elapse before a license can be applied for, whereas for other languages the period has been reduced to one year.

—In so far as compulsory licenses for translation are concerned, instead of availing itself of the facility offered by the system mentioned earlier, the Berne Convention offers a choice in that a developing country may, when ratifying or acceding to the Paris Act, make a reservation under the so-called “ten-year rule” (Article 30(ii) (b)), which provides for the possibility of reducing the term of protection as far as the exclusive right of translation is concerned;

—this right, according to the said rule, ceases to exist if the author has not availed himself of it within 10 years from the date of first publication of the original work, by publishing or causing to be published, in one of the countries of the Berne Union, a translation in the language for which protection is claimed.

—The Appendix to the Paris Act of the Berne Convention thus allows a choice between a compulsory license system and the possibility of limiting the right of translation to 10 years as provided for in this Convention.

—Any developing country may choose between those possibilities but cannot combine them.

—In other words, this “ten-year” system provides that for 10 years from the publication of the work the author’s consent has to be sought before the right to translate is obtained; after this period the right of translation is in the public domain

¨The right of reproduction

¨In respect of reproduction, the period after which licenses can be obtained varies according to the nature of the work to be reproduced. Generally it is five years from the first publication.

¨For works connected with the natural and physical sciences and with technology (and this includes mathematical works) the period is three years; while for works of fiction, poetry and drama, the period is seven years.

¨Administration

¨Administrative Provisions

¨Becoming Party to the Convention

¨WIPO Copyright Treaty

—The Treaty obliges the Contracting Parties to provide legal remedies against the circumvention of technological measures (e.g., encryption) used by authors in connection with the exercise of their rights and against the removal or altering of information, such as certain data that identify works or their authors, necessary for the management (e.g., licensing, collecting and distribution of royalties) of their rights (“rights management information”).

—The Treaty obliges each Contracting Party to adopt, in accordance with its legal system, the measures necessary to ensure the application of the Treaty. In particular, the Contracting Party must ensure that enforcement procedures are available under its law so as to permit effective action against any act of infringement of rights covered by the Treaty. Such action must include expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringements.

—The Treaty establishes an Assembly of the Contracting Parties whose main task is to deal with matters concerning the maintenance and development of the Treaty, and it entrusts to the Secretariat of WIPO the administrative tasks concerning the Treaty.

—The Treaty entered into force on March 6, 2002. The Director General of WIPO is the depositary of the Treaty.

—This Treaty is open to States members of WIPO and to the European Community. The Assembly constituted by the Treaty may decide to admit other intergovernmental organizations to become party to the Treaty.

—The WCT is a special agreement under the Berne Convention. Any Contracting Party (even if it is not bound by the Berne Convention) must comply with the substantive provisions of the 1971 (Paris) Act of the Berne Convention for the Protection of Literary and Artistic Works (1886) .

—Furthermore, the Treaty mentions two subject matters to be protected by copyright, 

—(i) computer programs, whatever may be the mode or form of their expression, and 

—(ii) compilations of data or other material (“databases”), in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations. (Where a database does not constitute such a creation, it is outside the scope of this Treaty.)

—As to the rights of authors, the Treaty deals with three: 

—(i) the right of distribution, 

—(ii) the right of rental, and 

—(iii) the right of communication to the public. 

—Each of them is an exclusive right, subject to certain limitations and exceptions. Not all of the limitations or exceptions are mentioned in the following:

—the right of distribution is the right to authorize the making available to the public of the original and copies of a work through sale or other transfer of ownership,

—the right of rental is the right to authorize commercial rental to the public of the original and copies of three kinds of works: 

—(i) computer programs (except where the computer program itself is not the essential object of the rental), 

—(ii) cinematographic works (but only in cases where commercial rental has led to widespread copying of such works materially impairing the exclusive right of reproduction), and 

—(iii) works embodied in phonograms as determined in the national law of the Contracting Parties (except for countries that since April 15, 1994, have in force a system of equitable remuneration for such rental),

—the right of communication to the public is the right to authorize any communication to the public, by wire or wireless means, including “the making available to the public of works in a way that the members of the public may access the work from a place and at a time individually chosen by them.” The quoted expression covers in particular on-demand, interactive communication through the Internet.

¨Universal Copyright Convention

¨UCC adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention. The UCC was developed by United Nations Educational, Scientific and Cultural Organization as an alternative to the Berne Convention for those states which disagreed with aspects of the Berne Convention, but still wished to participate in some form of multilateral copyright protection.

¨These states included developing countries and the Soviet Union, which thought that the strong copyright protections granted by the Berne Convention overly benefited Western developed copyright-exporting nations, and the United States and most of Latin America.

¨The United States and Latin America were already members of a Pan-American copyright convention, which was weaker than the Berne Convention. The Berne Convention states also became party to the UCC, so that their copyrights would exist in non-Berne convention states.

—The United States only provided copyright protection for a fixed, renewable term, and required that in order for a work to be copyrighted it must contain a copyright notice and be registered at the Copyright Office. The Berne Convention, on the other hand, provided for copyright protection for a single term based on the life of the author, and did not require registration or the inclusion of a copyright notice for copyright to exist.

—Thus the United States would have to make several major modifications to its copyright law in order to become a party to it. At the time the United States was unwilling to do so. The UCC thus permits those states which had a system of protection similar to the United States for fixed terms at the time of signature to retain them.

—Eventually the United States became willing to participate in the Berne convention, and change its national copyright law as required. In 1989 it became a party to the Berne Convention as a result of the Berne Convention Implementation Act of 1988.

¨

—Under the Second Protocol of the Universal Copyright Convention (Paris text), protection under U.S. Copyright Law is expressly required for works published by the United Nations, by U.N. specialized agencies and by the Organization of American States. The same requirement applies to other contracting states as well.

—Berne Convention states were concerned that the existence of the UCC would encourage parties to the Berne Convention to leave that convention and adopt the UCC instead. So the UCC included a clause stating that parties which were also Berne Convention parties need not apply the provisions of the Convention to any former Berne Convention state which renounced the Berne Convention after 1951.

— Thus any state which adopts the Berne Convention is penalised if it then decides to renounce it and use the UCC protections instead, since its copyrights might no longer exist in Berne Convention states.

—Since almost all countries are either members or aspiring members of the World Trade Organization, and are thus conforming to the Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement, the UCC has lost significance.

—

¨Neighbouring Right

¡Bilateral Treaties

¡Multilateral Treaties

úRome Convention

úGeneva Phonogram Convention

úBrussels Satellite Convention

úWIPO Performers and Phonograms Treaty

¡Regional Treaties

¨Besides the Rome Convention of 1961, a basic legal instrument discussed in the previous section,  two other international instruments have been drawn up with regard to certain related rights. These are

¡the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, concluded in Geneva in October 1971 and generally referred to as “the Phonograms Convention,” and

¡the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, concluded in Brussels in May 1974 and known briefly as “the Satellites Convention.”

¡These two Conventions are also within the area of related rights, and their purpose is to protect producers of phonograms and broadcasting organizations, respectively, against certain prejudicial acts that have been widely recognized as infringements or acts of piracy.

¨Rome Convention

The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations

¨Introduction

¨The first proposals aiming at the protection of producers of phonograms and performers at the international level were also based on copyright protection. The rights involved were discussed by the  Berne Union for the Protection of Literary and Artistic Works at its Diplomatic Conference in Rome in 1928, where it was proposed that “when a musical work has been adapted to a mechanical instrument by the contribution of performing artists these latter should also benefit from the protection granted to that adaptation.” Corresponding to this approach, a resolution was passed asking governments to consider the possibility of adopting measures to safeguard the interests of performers.

¨Later on, in 1934, CISAC, the International Confederation of Societies of Authors and Composers, signed an agreement in Stresa with the International Federation of the Gramophone Industry according to which during the forthcoming revision of the Berne Convention (i) the protection of phonograms against unauthorized duplication and (ii) the right of producers of phonograms to equitable remuneration for communication to the public of their phonograms by broadcasting or cinematography should be proposed by means of an annex to be added to the Berne Convention. On the other hand, the International Labour Organization (ILO) had maintained since 1926 a continuing interest in the protection of performers and the problem was considered at a meeting in Samaden, Switzerland, in 1939. Drafts were prepared in cooperation with the Bureau of the Berne Union but all progress was stopped for several years by the outbreak of World War II.

—After the war, different committees of experts prepared drafts of conventions which also included protection of the interests of broadcasting organizations — the so-called Rome Draft (1951), a draft produced under the sponsorship of the International Labour Organization (1957) and the Monaco Draft (1957) prepared by experts convened by the International Bureau of the Berne Union and by Unesco. Finally, in 1960, a committee of experts convened jointly by WIPO, Unesco and the International Labour Organization met at The Hague and drew up the draft convention.

—This served as a basis for the deliberations in Rome, where a Diplomatic Conference agreed on the final text of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, the Rome Convention of October 26, 1961.

¨Subject of Protection

—(1) Performers (actors, singers, musicians, dancers and other persons who perform literary or artistic works) are protected against certain acts they have not consented to. Such acts are: the broadcasting and the communication to the public of their live performance; the fixation of their live performance; the reproduction of such a fixation if the original fixation was made without their consent or if the reproduction is made for purposes different from those for which they gave their consent.

—(2) Producers of phonograms enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms. Phonograms are defined in the Rome Convention as meaning any exclusively aural fixation of sounds of a performance or of other sounds. When a phonogram published for commercial purposes gives rise to secondary uses (such as broadcasting or communication to the public in any form), a single equitable remuneration must be paid by the user to the performers, or to the producers of phonograms, or to both; contracting States are free, however, not to apply this rule or to limit its application.

—(3) Broadcasting organizations enjoy the right to authorize or prohibit certain acts, namely: the rebroadcasting of their broadcasts; the fixation of their broadcasts; the reproduction of such fixations; the communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.

—The Rome Convention allows exceptions in national laws to the above-mentioned rights as regards private use, use of short excerpts in connection with the reporting of current events, ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts, use solely for the purpose of teaching or scientific research and in any other cases—except for compulsory licenses that would be incompatible with the Berne Convention—where the national law provides exceptions to copyright in literary and artistic works.

—Furthermore, once a performer has consented to the incorporation of his performance in a visual or audiovisual fixation, the provisions on performers’ rights have no further application.

—Protection must last at least until the end of a period of 20 years computed from the end of the year in which:

—(a) the fixation was made, for phonograms and for performances incorporated therein;
(b) the performance took place, for performances not incorporated in phonograms;
(c) the broadcast took place, for broadcasts. (However, national laws ever more frequently provide for a 50-year term of protection, at least for phonograms and for performances.)

—WIPO is responsible, jointly with the ILO and UNESCO, for the administration of the Rome Convention. These three organizations constitute the Secretariat of the Intergovernmental Committee set up under the Convention and consisting of the representatives of 12 Contracting States.

—The Convention does not provide for the institution of a Union or a budget. It establishes an Intergovernmental Committee composed of Contracting States, that considers questions concerning the Convention

—This Convention is open to States party to the Berne Convention for the Protection of Literary and Artistic Works (1886) or to the Universal Copyright Convention. Instruments of ratification or accession must be deposited with the Secretary-General of the United Nations. States may make reservations with regard to the application of certain provisions.

—

¨Geneva Phonogram Convention

¨The Phonograms Convention does not speak of the system of “national treatment”, but defines expressly the unlawful acts against which Contracting States have to provide effective protection;

¨consequently, the States are not bound to grant foreigners protection against all acts prohibited by their national legislation for the protection of their own nationals.

¨For instance, countries whose national legislation provides protection against the public performance of phonograms are not obliged to make this form of protection available to the producers of phonograms of other Contracting States, because the Phonograms Convention does not itself guarantee any protection against the use in public of lawfully reproduced and distributed phonograms.

¨It should be mentioned, however, that even the Phonograms Convention is in no way to be interpreted as limiting the protection available to foreigners under any domestic law or international agreement (Article 7(1)).

—The means by which the Phonograms Convention is to be implemented are a matter for domestic legislation. They may include protection by granting copyright in the phonogram, by granting other specific (neighboring) rights, by the law relating to unfair competition, or by penal sanctions (Article 3).

—It should be noted that the Phonograms Convention also contains a provision concerning  performers. Under its Article 7, the national legislation of each Contracting State may lay down, where necessary, the scope of protection afforded to performers whose performance is fixed on a phonogram and the conditions of enjoying such protection.

—

¨Brussels Satellite Convention

—The Satellites Convention was adopted because the use of satellites in international  telecommunications has, since about 1965, been presenting a new problem for the protection of  broadcasting organizations. 

—Nowadays the transmission of programs by satellite still takes place mainly indirectly. Electronic signals carrying broadcast programs pass through a satellite to reach remote parts of the globe that cannot be reached by traditional broadcasting; but the programme-carrying signals passed on by the satellite cannot be picked up directly by conventional receivers generally used by the public at large. They first have to be picked up by ground stations, which distribute them to the public.

—In the case of satellite broadcasting, the signals sent to the satellite are demodulated by the satellite itself; as a result, the signals transmitted down to earth can be received directly from space by ordinary receivers, without the intervention of ground receiving stations.

—However, the signals transmitted upwards to the satellite remain inaccessible to the public even with this mode of transmission.

¨The legal problem stems from the wording of Article 3 of the Rome Convention, under which broadcasting means the transmission by wireless means for public reception of sounds or of images and sounds.

¨The difficulties with regard to satellite transmission are twofold:

¡on one hand, the signals emitted by the originating organization are not suitable for public reception;

¡on the other hand, the derived signals, generally obtained by means of ground stations, are frequently transmitted to the public by wire and not by wireless means.

¨The Satellites Convention provides a solution by requiring Contracting States to take adequate measures to prevent the distribution of any programme-carrying signals by any distributor for whom the signal emitted to or passing through the satellite is not intended.

¨“Distribution” is defined by the Convention as the operation by which a distributor transmits derived signals to the public, and therefore also encompasses cable distribution.

¨The question of national treatment does not arise, as a general rule, in the Satellites Convention. This Convention places Contracting States under the obligation to take the necessary steps to prevent just one type of activity, namely the distribution of program-carrying signals by any distributor for whom the signals emitted to or passing through the satellite are not intended.

¨Substantive Provisions

¨The Satellites Convention enlarges the scope of the protection of broadcasting organizations by preventing the unlawful distribution of programme-carrying signals transmitted by satellite irrespective of whether or not such signals are suited to reception by the public, and hence irrespective of the fact that their emission does not constitute broadcasting according to the definition of that notion under the Rome Convention.

¨Furthermore, the protection provided for by the Satellites Convention also applies when the derived signals are distributed by cable and not by wireless means, a kind of communication to the public of broadcasts not covered by the Rome Convention.

¨Formally, however, the Convention gives no new right to the broadcasting organizations. It obliges the Contracting States to prevent the distribution of program-carrying signals by any distributor for whom the signals passing through the satellite are not intended.

—It should be noted that the Satellites Convention does not protect the transmitted program, since the subject of the protection is the signals emitted by the originating organization. As regards the rights related to the programs, the Convention simply lays down that it may not be interpreted in any way as limiting or prejudicing the protection afforded to authors, to performers, to phonogram producers and to broadcasting organizations.

—The Satellites Convention permits the distribution of program-carrying signals by non-authorized persons, if those signals carry short excerpts containing reports of current events or, as quotations, short excerpts of the program carried by the emitted signals, or, in the case of developing countries, if the program carried by the emitted signals is distributed solely for the purposes of teaching, including adult teaching or scientific research.

—With regard to the duration of the protection, the Satellites Convention refers to national legislation in this special context. In any State in which the application of the above measures is limited in time, the duration is to be fixed by its domestic law.

—The Satellites Convention is not to be applied when the signals emitted by the originating organization are intended for direct reception from a satellite by the public (Article 3). In such cases the signals emitted are not intended for any intervening distributor of derived signals; they are directly accessible to the public at large.

¨WIPO Performers and Phonograms Treaty

—Introduction

—The WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, held in Geneva in December 1996, adopted two treaties: the WIPO Copyright Treaty (the third section dealt with in this chapter) and the WIPO Performances and Phonograms Treaty (WPPT).

—In view of the technological developments of the 1980s, as also in the field of copyright, it was recognized that guidance in the form of recommendations, guiding principles and model provisions would no longer suffice, and that binding new norms were indispensable. The WCT and the WPPT were prepared in parallel at the same Diplomatic Conference.

¨Legal Nature of the WPPT and its Relationship with Other International Treaties

—The WPPT has a certain relationship with the Rome Convention which has been regulated in a way similar to the relationship between the TRIPS Agreement and the Rome Convention.

—This means that

—(i) in general, application of the substantive provisions of the Rome Convention is not an obligation of the Contracting Parties,

—(ii) only a few provisions of the Rome Convention are included by reference (those relating to the criteria of eligibility for protection), and

—(iii) Article 1(2) of the Treaty contains, mutatis mutandis, practically the same provision as Article 2.2 of the TRIPS Agreement, stating that nothing in the Treaty derogates from obligations that Contracting Parties have to each other under the Rome Convention.

—Article 1(3) of the Treaty, in respect of the relation to the other treaties, includes a provision  similar to Article 1(2) of the WCT: “The Treaty shall not have any  connection with, nor shall it prejudice any rights and obligations under, any other treaties.”

¨Substantive Provisions of the WPPT

¨Provisions Relating to the So-called “Digital Agenda”

¨The provisions of the WPPT relating to the “digital agenda” cover the following issues:

¨certain definitions, rights applicable to storage and transmission of performances and phonograms in digital systems, limitations on and exceptions to rights in a digital environment, technological Measures of protection and rights management information.

¨Storage of Works in Digital Form in an Electronic Medium

¨Transmission in Digital Networks

¨Limitations and Exceptions in the Digital Environment

¡Technological Measures of Protection and Rights Management Information Other Substantive Provisions

—Criteria for Eligibility

—Article 3 provides for the application of the criteria under the Rome Convention (Articles 4, 5, 17 and 18).

—National Treatment

—Article 4 provides for the same kind of national treatment as that prescribed by Article 3.1 of the TRIPS Agreement in respect of related rights, that is, national treatment only extends to the rights granted under the Treaty.

—Coverage of the Rights of Performers

—The coverage of the rights of performers is similar to that under the TRIPS Agreement;

—it only extends to live aural performances and performances fixed in phonograms, except for the right of broadcasting and communication to the public of live performances, which under Article 6(i) extends to all kinds of live performances, not only to aural ones (as under the second sentence of Article 14.1 of the TRIPS Agreement).

—Moral Rights of Performers

—Article 5(1) provides as follows: “Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.” This provision, in its main lines, follows Article 6bis of the Berne Convention (on the moral rights of authors) but it requires a somewhat lower level of protection: in respect of the right to be identified as the performer, the element of practicability is built in, and the scope of “the right to respect” is also narrower. Article 5(2) and (3), on the duration of protection of, and the means of redress for safeguarding, the rights, are mutatis mutandis versions of Article 6bis(2) and (3) of the Berne Convention.

¨Economic Rights of Performers

¨In addition to the “right of making available,” discussed above under the “digital agenda,” and a right of distribution, discussed below, the WPPT provides for practically the same economic rights for performers — right of broadcasting and communication to the public of unfixed performances (but in Article 6(ii) it is added: “except where the performance is already a broadcast performance”), right of reproduction and right of rental (Articles 6, 7 and 9) — as the rights granted in the TRIPS Agreement (Articles 14.1 and 14.4).

¨As far as the distribution right is concerned, Article 8(1) provides that performers have an exclusive right of authorizing the making available to the public of the original and copies of their performances fixed in phonograms, through sale or other transfer of ownership. Article 8(2) deals with the issue of the exhaustion of this right. It does not oblige Contracting States to choose national/regional exhaustion or international exhaustion, or to regulate at all the issue of exhaustion.

¨Rights of Producers of Phonograms

¨Remuneration for Broadcasting and Communication to the Public

¨Transferability of Rights

¨Duration of Protection

     International Institutions

úUN

úWTO/TRIPS

úWIPO

úILO

úInterpol

úICJ

úICMOs

¨INGOs

¨Regional Organizations