GUIDE TO THE COPYRIGHT AND RELATED RIGHTS TREATIES ADMINISTERED BY WIPO AND GLOSSARY OF COPYRIGHT AND RELATED RIGHTS TERMS

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1 GUIDE TO THE COPYRIGHT AND RELATED RIGHTS TREATIES ADMINISTERED BY WIPO AND GLOSSARY OF COPYRIGHT AND RELATED RIGHTS TERMS

2 GUIDE TO THE COPYRIGHT AND RELATED RIGHTS TREATIES ADMINISTERED BY WIPO AND GLOSSARY OF COPYRIGHT AND RELATED RIGHTS TERMS

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4 GUIDE TO THE COPYRIGHT AND RELATED RIGHTS TREATIES ADMINISTERED BY WIPO TABLE OF CONTENTS PREFACE 3 ACKNOWLEDGEMENT INTRODUCTION CHAPTER 1 GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (PARIS ACT, 1971) CHAPTER 2 GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE INTERNATIONAL CONVENTION FOR THE PROTECTION OF PERFORMERS, PRODUCERS OF PHONOGRAMS AND BROADCASTING ORGANISATIONS (ROME CONVENTION, 1961) CHAPTER 3 GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE CONVENTION FOR THE PROTECTION OF PRODUCERS OF PHONOGRAMS AGAINST UNAUTHORIZED DUPLICATION OF THEIR PHONOGRAMS (PHONOGRAMS CONVENTION, 1971) CHAPTER 4 GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE CONVENTION RELATING TO THE DISTRIBUTION OF PROGRAMME-CARRYING SIGNALS TRANSMITTED BY SATELLITE (SATELLITES CONVENTION, 1974) CHAPTER 5 GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE WIPO COPYRIGHT TREATY (WCT, 1996) CHAPTER 6 GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE WIPO PERFORMANCES AND PHONOGRAMS TREATY (WPPT, 1996) CHAPTER 7 GLOSSARY OF COPYRIGHT AND RELATED RIGHTS TERMS

5 PREFACE 4 The oldest and most important international treaty on copyright, the Berne Convention for the Protection of Literary and Artistic Works, has been administered by the World Intellectual Property Organization (WIPO) and its predecessor organizations, since it was adopted in In the field of related rights, WIPO administers the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (together with the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Labour Organization (ILO)), the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, and the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms. The Organization also administers the latest international instruments in the field of copyright and related rights, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), the so-called WIPO Internet treaties. Those treaties on copyright and related rights and the international protection system which they created have developed over the years in dynamic response to economic, social, cultural, technological and political developments. As the organization responsible for the administration of those treaties, one of WIPO s principal tasks is to provide advice and assistance to its Member States regarding the preparation and implementation of national legislation giving effect to them. In this context, this new Guide seeks to clarify and explain the legal principles enshrined in the treaties, and their relationship with policy, economic, cultural and technological considerations. We hope that it will be helpful to all stakeholders and interested parties, notably governments, creators, businesses, the legal profession, academics, consumers and students, in all our Member States, and that it will contribute to ensuring a secure, prosperous and conducive environment in which more and better products and services, dependent on the respect and protection of copyright, will be made available to more people in all parts of the world. This Guide was commissioned by WIPO and written by Dr. Mihály Ficsor, an internationally renowned expert in the subject matter. The views expressed in the Guide are those of Dr. Ficsor and do not necessarily reflect those of the Organization. I would like to express our deep appreciation for the important contribution made by Dr. Ficsor, in writing this Guide, to a better understanding of the role of copyright and related rights for economic, cultural and social development. Geneva, November Kamil Idris Director General World Intellectual Property Organization

6 ACKNOWLEDGEMENT I would like to thank WIPO and its Director General, Dr. Kamil Idris, for the opportunity of writing this book for the Organization. It is an honor that this Guide will join those written by the late Mr. Claude Masouyé the then-director of the Copyright and Public Information Department of WIPO to the Berne Convention 1 and to the Rome and Phonograms Conventions. 2 However, this new Guide and its Glossary constitute a completely new publication and is not an update or adaptation of those previous publications or of the WIPO Glossary of Terms of the Law of Copyright and Neighboring Rights. 3 5 My special thanks are also due to those members of the WIPO Secretariat who have contributed to the realization of this book. It should be noted that, although I have tried to base the analysis in this publication as much as possible on official sources (records of diplomatic conferences, WIPO documents, etc.), I have also added my own views on many aspects these views do not necessarily reflect the position of WIPO. Mihály Ficsor 1. WIPO publication No. 615(E), WIPO publication, No. 617(E), WIPO publication, No 816 (EFS), 1980; according to the Introduction, it was essentially the work of Dr. György Boytha.

7 INTRODUCTION 6 OBJECTIVE, STRUCTURE AND STYLE OF THE BOOK 1. This book is composed of eight parts: this Introduction, six guides (to four conventions and two treaties administered by WIPO) and a Glossary. 2. The objective of the guides is to offer an analysis of the substantive provisions of the copyright and related rights treaties administered by WIPO: namely, the Berne Convention, the Rome Convention, the Phonograms Convention, the Satellites Convention, the WCT and the WPPT. The analysis does not extend to the administrative and final provisions of these instruments. Nevertheless, for the sake of completeness and ready availability, the latter provisions are also reproduced in the guides. 3. This Introduction contains a brief review of the historical development of international norms on copyright and related rights and a description of the relationship between the various instruments. The book does not contain lists of the countries and other possible entities party to these instruments, since such lists are available in an up-to-date form on WIPO s website (www.wipo.int). 4. In order to offer a description of the historical development of international copyright and related rights norms as well as the relationship between them, this Introduction also deals briefly with two international instruments that are not administered by WIPO; namely, the Universal Copyright Convention (UCC) administered by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) which is one of the agreements to which every country or other entity becomes party upon accession to the World Trade Organization (WTO). Although these latter instruments are not analyzed in the form of guides, at various points in the analysis of the WIPO-administered treaties, reference is made to certain provisions of the TRIPS Agreement (not to the UCC, however, whose importance is diminishing for the reasons given below). The text of the relevant norms is not reproduced (the TRIPS Agreement is available on the website of the WTO (www.wto.org)). HISTORICAL BACKGROUND 5. What exists now as the international system of copyright and related rights protection has grown from bilateral agreements concluded mainly although not exclusively between European countries in the 19 th century (at that time, only in respect of copyright, since related rights only came into being in the 20 th century). The bilateral agreements were, in general, based on the principle of national treatment combined with some minimum obligations. This kind of structure for international agreements in the field of copyright and related rights that is, the obligation of granting national treatment to the nationals of the other contracting party, or contracting parties, combined with the minimum level of protection that each contracting party must grant to such nationals irrespective of the protection granted to its own nationals has remained typical since then. 6. Such a structure became necessary due to the differences between the various national systems, not only as to the level of protection granted but also from the viewpoint of the legal philosophy on which they had been based. From the very beginning of the existence of national legislation on copyright, there were two fundamentally differing systems; namely, what are now referred to as the common law and the civil law systems. 7. The common law system relative to copyright grew out of printing privileges granted by English monarchs. It was Queen Anne who brought about the Copernican turn in this area in 1709/ when she gave the right to authorize the printing (copying) of their works to the authors themselves. Under this system, it is not the relationship between the author and his

8 work, but the work itself, as a product, that is the central element of protection. The objective of the protection granted is to offer appropriate incentives for further creative activity. It is conceptualized as a kind of agreement between society and the authors: if you create, you may make available your works to the public since you will enjoy protection for a limited time The civil law system has more than one root, but the most decisive one goes down as deep as the time of the French revolution, when authors rights in their literary and artistic works were recognized, at least partly, on the basis of a natural right approach. The rights in such works were regarded as the most saint property (la propriété la plus sacrée) of their authors, since such works were considered as the products of the human mind and, therefore, as expressions of the personality of their authors. Many differences have followed from these two philosophies which are still present in the copyright systems based on them. These differences concern such fundamental issues of copyright as authorship, the concept of work, the originality test, the borderline between copyright per se and related rights, original ownership, and the transferability of economic rights. In addition to the differences related to the underlining philosophies, there are others, since countries developed their emerging copyright legislation independently. 9. These differences were manifested in various and increasingly numerous bilateral agreements. In the second part of the 19 th century, their number and complexity reached such a level that it inevitably led to the idea that it would be better to replace them with one single convention to which all the previous bilateral partners might become party. The bilateral agreements offered certain legal techniques and models, but, of course, the task of working out a multilateral instrument was more complex, and the preparation of norms intended for worldwide application also made it desirable to try to establish as solid a legal-philosophical foundation as possible. The preparatory work necessary for the establishment of a convention to satisfy these requirements was started and brought very close to conclusion by the International Literary and Artistic Association (ALAI) during several of its congresses. 10. It was at the request of the ALAI that the Swiss Confederation convened three subsequent Diplomatic Conferences in Berne in 1884, 1885 and 1886, at the third of which the Berne Convention for the Protection of Literary and Artistic Works was adopted. The Convention was based on the principle of national treatment, but also fixed a minimum level of protection which all the member countries of the Union (established by it from the contracting parties) had to grant to the nationals of other member countries. 11. The substantive provisions of the Berne Convention were revised several times between 1896 and The Diplomatic Conferences that took place in Paris in 1896, in Berlin in 1908, in Rome in 1928 and in Brussels in 1948 dealt, to a great extent, with technological advancements such as the advent of phonography, that is, the making of phonograms or sound recordings, photography, radio and cinematography but also to the internal development of the law of copyright (which had led, for example, to the recognition of moral rights, to the abolishment of formalities as conditions of protection and to the establishment of a minimum term of protection). As a result of this, the 1948 Brussels Act of the Convention already contained quite detailed regulation on all the important aspects of copyright protection. 12. In the 1950s and 1960s, the Berne Convention received partners in the protection of cultural achievements at the international level. First, a new international copyright convention was adopted and then also a convention for the protection of related rights (or, as they were still called at that time, neighbouring rights ). 13. The Universal Copyright Convention (UCC) was worked out and adopted under the aegis of UNESCO in This took place mainly on the initiative of the United States of America, which, due to certain specific features of its legislation (such as the existence of formalities as conditions of protection and a complex regulation concerning the term of protection of copyright not fulfilling the requirements of the Berne Convention) was not able to accede to the Berne Convention. Several

9 8 Latin American countries shared this initiative since they were not members of the Berne Convention, but rather had established conventions between themselves and with the United States of America. When the level of protection required by the UCC was fixed, account was taken of the fact that the process of decolonization had already started and it seemed evident that the emerging newly independent countries later called developing countries would hesitate to accede to an international treaty that would require immediately a system with a high level of protection. The various criteria that had to be taken into account led to the adoption of a convention that differed in many important aspects from the Berne Convention. The UCC only contained some quite general obligations concerning the rights to be granted, and it allowed the application of formalities (but simplified their fulfillment for other countries party to the UCC by providing that the indication of a simple standardized copyright notice was sufficient). 14. The other new partner for the Berne Convention and the UCC was the International Convention on the Protection of the Rights of Performers, Producers of Phonograms and Broadcasting Organizations, adopted in Rome in 1961 under the joint aegis of BIRPI (the predecessor organization of WIPO), UNESCO and the International Labour Organization (ILO). The need for protection for these new categories of beneficiaries had emerged as a result of technological developments. Already, phonography had raised problems for performers, which were then further aggravated by ever-more numerous radio programs and the advent of television. The phonograms embodying performances and the radio and television transmissions of both such phonograms and live performances appeared as dangerous competitors which undermined the employment opportunities for many performers. Thus, it was legitimate from their viewpoint to demand that they be granted adequate rights right of authorization or at least a right to remuneration in respect of such competitor activities. It was also understandable that phonogram producers required protection against the unauthorized copying of their phonograms. Finally, broadcasting organizations also joined the first two groups of interested parties in demanding protection for their broadcast programs against unauthorized rebroadcasting, protection which seemed to be necessary for them in particular with respect to those elements of their programs (such as transmissions of certain events on an exclusive basis) the protection of which was not guaranteed by copyright. 15. The first idea was to try to grant protection for these objects and new beneficiaries under the copyright system, and this issue was also discussed at some of the revision conferences of the Berne Union. In fact, several countries mainly those that followed the common law tradition applied, and some of them still apply, this solution. However, this was not found to be acceptable in general, and this recognition then led, after a long period of preparatory work, to the working out and the adoption of the Rome Convention. 16. The Rome Convention has been characterized as a pioneer convention, since at the time of its adoption, the legislation of only very few countries provided for specific rights for the three categories of beneficiaries it covered. This was also the reason for which, in addition to the obligation to grant national treatment as under the Berne Convention, the minimum obligations under the Rome Convention were fixed at a relatively low level (in general, much lower than that prescribed in the Berne Convention). 17. The number of countries party to the Rome Convention has grown slowly. One of the main reasons for the limited adherence was the fact that countries following the common law tradition were not interested in acceding to the Convention since they were of the view that phonograms and broadcasts were already eligible for copyright protection. In respect of related rights, for some time there was no movement towards working out a bridging convention similar to the UCC in the field of copyright (this only took place with the drafting and entry into force of the TRIPS Agreement and the WPPT). However, technological developments constrained countries following differing legal traditions to unite their efforts and jointly solve at least certain urgent questions. This led to the adoption of two new conventions, namely the Phonograms Convention and the Satellites Convention.

10 18. The Phonograms Convention became necessary because new, more easily applicable reproduction techniques were leading to increasingly widespread piracy of phonograms. The objective of the Convention, which was adopted after very quick preparatory work in Geneva in 1971, was to offer protection exclusively against this menacing phenomenon. It does not provide for any specific rights; it only identifies the most dangerous acts related to phonogram piracy and obligates contracting parties to grant appropriate protection against them, at the same time, it allows great freedom in respect of the legal techniques through which this obligation is fulfilled The Satellites Convention, adopted in Brussels in 1974, may also be regarded as an anti-piracy treaty. Its purpose was to provide protection against piracy of programme-carrying signals transmitted by telecommunication satellites. Like the Phonograms Convention, it is very flexible; it leaves contracting parties the freedom to choose the legal means through which protection is granted. However, only relatively few countries have acceded to the Satellites Convention, because of its narrow coverage. Its application has not been extended to direct broadcasting satellites, and, in the meantime with the increase in the capacity and power of telecommunication satellites and the growing possibility for consumers to pick up signals directly increasing numbers of satellites are falling outside the protection of the Convention. 20. In the meantime, the last two revisions of the Berne Convention also had taken place, in Stockholm in 1967 and in Paris in They are frequently referred to as "twin revisions" for the following reasons. By 1971, only the administrative provisions and final clauses of the Stockholm Act (which related to the administrative reform of the Convention in connection with the transformation of BIRPI into WIPO) had entered into force, and it had become clear that its substantive provisions (Article 1 to 21 and the Protocol) would not be ratified by a sufficient number of countries. Those substantive provisions, with the exception of the Protocol, were then included, without any substantive changes, into the Paris Act. The latter brought about real changes in only one respect, namely replacing the Protocol with a renegotiated Appendix (serving the same purpose to offer preferential norms in favor of developing countries but at a different level). 21. At the 1967 Stockholm revision conference, in addition to certain other modifications of the text (which may be characterized as legal-technical improvements), the more important amendments took place in respect of two groups of issues: first, those concerning the rights in audiovisual works, and the original ownership, exercise and transfer of those rights, with certain related presumptions; second, those that developing countries had raised (which, as a result of the acceleration of the decolonization process around the beginning of the 1960s, were represented in a much greater number than in any previous diplomatic conference). Two particular issues of major concern had been raised by these countries. The first was the protection of folklore creations, while the second concerned the specific needs of those countries for easier access to works needed for education, scientific activities and research. The Diplomatic Conference ended with the understanding that both these issues had been settled. This was not, however, the case. As discussed in the commentary to Article 15(4) of the Berne Convention, below, the provision which, it was alleged, offered protection for artistic folklore was not suitable to solve this issue. The Protocol to the Stockholm Act which was an integral part of the substantive provisions of that Act was much more promising from the viewpoint of developing countries, since it provided for the possibility of compulsory licensing under fairly favorable terms. Indeed, in the opinion of the publishers of certain industrialized countries the accession of which to the Stockholm Act had been fixed as a specific condition in the text adopted these terms were too favourable. Their opinion had prevailed, the necessary accessions had not taken place and, for this reason, the substantive provisions of the Stockholm Act had not entered into force. 22. The 1971 Paris revision conference of the Berne Union had been convened due to the above-mentioned failure, and as mentioned before the only substantive change it brought about in the text of the Berne Convention was the replacement of the Protocol with an Appendix, acceptable to all interested parties. Otherwise, the substantive provisions of the Stockholm Act (Articles 1 to 20) were simply reproduced in the new act without any change (that is the reason for which as mentioned

11 10 above the Stockholm and Paris revisions of the Convention are sometimes referred to as the twin revisions ). The revision conference of the Berne Union was organized jointly with a revision conference of the UCC. In the latter, in substance, the same provisions (as in the Appendix to the Berne Convention) were included concerning the newly adopted compulsory licensing system in favor of developing countries. In addition, some other amendments were made which resulted in a slight increase in the minimum level of protection prescribed by the UCC. 23. As mentioned above, the Berne Convention, after its adoption in 1886, was revised quite regularly, more or less every 20 years, until the twin revisions in Stockholm in 1967 and in Paris in The revision conferences, as also mentioned above, were convened, in general, in order to find responses to new technological developments (such as phonography, photography, radio, cinematography, television). In the 1970s and 1980s, a great number of very important new technological developments took place (reprography, video-technology, compact cassette systems facilitating home taping, satellite broadcasting, cable television, the increasing importance of computer programs, computer-generated works and electronic databases, etc.). For a while, the international copyright community followed the strategy of guided development, 5 rather than trying to establish new international norms. The same strategy was followed in respect of the related rights covered by the Rome Convention, which has never been revised. The recommendations, guiding principles and model provisions worked out by the various WIPO bodies (at the beginning, frequently in cooperation with UNESCO) offered guidance to governments on how to respond to the challenges of new technologies. They were based, in general, on the interpretation of existing international norms (for example, concerning computer programs, databases, home taping, satellite broadcasting, cable television); but they also included some new standards (for example, concerning distribution and rental of copies). 24. The guidance thus offered in the said guided development period had quite an important impact on national legislation, and contributed to the development of copyright all over the world. 6 At the end of the 1980s, however, it was recognized that mere guidance would not be sufficient any more; new binding international norms became indispensable. One of the most important reasons for which this took place was that, as a result of insufficiently harmonized responses to the challenges of new technologies, national laws began including differing elements not only in respect of such details which traditionally had been left for national legislation, but also in respect of some fundamental elements of international copyright norms (categories of works, rights and exceptions), and this created growing conflict about the application of national treatment. The countries that granted more generous, higher-level protection in the new fields tried to find and adopt some legal theories and techniques to avoid what they perceived as an unjustified unilateral burden vis-à-vis the less generous member countries of the Berne Union. 25. In addition to the need to revise the substantive copyright and related rights norms, two other requirements also emerged. First, as a result of the spectacular development of reproduction technologies (with the possibility of making a great number of perfect copies at extremely low cost) piracy had become a phenomenon that was undermining the whole system of the protection of copyright and related rights; much more efficient enforcement procedures and sanctions were needed. Second, it was felt that the only possibility for dispute settlement offered in the existing intellectual property conventions in the case of purported violations of obligations under those conventions bringing the dispute to the International Court of Justice was not sufficient to achieve compliance with international norms. 26. The preparation of new norms began in two forums in the framework of the Uruguay Round negotiations of the General Agreement on Tariffs and Trade (GATT), and at WIPO, first, in one committee of experts and, later, in two parallel committees of experts (one was to work out a protocol to the Berne Convention, while the other was working on a new instrument to update the international norms on the rights of performers and producers of phonograms). For a while, the preparatory work in the WIPO committees was slowed down, since the governments concerned wanted to avoid any undesirable interference with the much more complex negotiations on the trade-related aspects of intellectual property rights (TRIPS) taking place within the Uruguay Round.

12 27. The TRIPS Agreement, along with the other agreements linked to the Marrakesh Agreement Establishing the World Trade Organization (WTO), was adopted in April It has not brought about many changes in the substantive norms on copyright and related rights. The level of protection it requires corresponds to the Berne/Rome level (in fact, the substantive provisions of the Berne Convention except those on moral rights have been simply included by reference into the Agreement). Certain clarifications have been added on how the existing norms should be applied (such as in respect of computer programs and databases), and there are only two aspects in connection with which truly substantial improvements have been made: first, the recognition of rental rights, with certain conditions and exceptions, for certain categories of works namely for computer programs and audiovisual works and for phonograms; and, second, the extension of the minimum term of protection for the rights of performers and producers of phonograms, from 20 years (as provided in the Rome Convention) to 50 years What is important, however, is that the TRIPS Agreement includes two new elements of historical importance, which had been missing from the international system of intellectual property protection; namely, first, its Part III (Articles 41 to 61) contains detailed norms on enforcement of intellectual property rights, and, second, it extends the efficient WTO dispute settlement system to intellectual property rights (which also includes the possibility of trade sanctions if a Member of the WTO does not follow the findings of the Dispute Settlement Body). 29. After the adoption of the TRIPS Agreement, a new situation emerged. The TRIPS negotiations were, in fact, concluded in December 1992, and it was after that that the Internet, due to improved compression and error-correction systems and other technological developments, started its truly spectacular expansion, and began to emerge as a real market for cultural and information products as well as a distribution channel for pirates. There was no chance to reopen the trade negotiations that had just finished. Therefore, the WIPO forum was used for the further updating of the international norms on copyright and related rights which had suddenly again become necessary. 30. WIPO started dealing with the impact of digital technology on copyright and related rights quite intensively as early as March 1993, when it organized the WIPO Worldwide Symposium on this subject-matter at Harvard University. This topic was also the focus of attention at the WIPO Worldwide Symposium on the Future of Copyright and Neighboring Rights organized in Paris in June Discussions continued at the WIPO Worldwide Symposium on Copyright in the Global Information Infrastructure took place in Mexico City, in May Finally, the WIPO World Forum on the Protection of Intellectual Creations in the Information Society, held in Naples in October 1995, served as an opportunity to sum up the ideas on what kinds of responses should be given to the challenges posed by digital technology and the Internet. 31. The concrete preparatory work was, however, carried out in the two WIPO committees of experts (the Berne Protocol Committee and the New Instrument Committee ) mentioned in paragraph 26, above. Considering the complexity of the issues involved, this work which accelerated after the adoption of the TRIPS Agreement led within a relatively short time to the convocation of a WIPO Diplomatic Conference in Geneva in December The Diplomatic Conference adopted the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), which, when 30 instruments of ratification or accession had been deposited with the Director General of WIPO for each of them, entered into force on March 6, 2002, and May 20, 2002, respectively. 32. The international press referred to the WCT and the WPPT as the Internet treaties, and this expression has become so commonly used that the treaties are frequently referred to in this way even in official WIPO documents. It is true that the raison d être of the WCT and the WPPT is that they offer responses to the most urgent challenges posed by digital technology, and in particular by the Internet; but they do not consist only of this. The same technique was used for their negotiation and adoption as was used in the case of the TRIPS Agreement, in the sense that they include all the substantive norms already

13 12 existing, and they complete them with new ones. Thus, the level of protection required by the treaties may be characterized as Berne/Rome plus and TRIPS plus. The substantive norms of the Berne Convention are included by reference, while complete provisions are incorporated reproducing Rome and TRIPS norms (sometimes with some minor wording and legal-technical changes). It should be noted that the TRIPS norms thus reproduced only concern the few new substantive copyright and related rights provisions in that Agreement, and not the detailed enforcement provisions; and also that, of course, the WTO dispute settlement mechanism is not applicable to the treaties. It is for the elements additional to those incorporated from the Berne and Rome Conventions and exceeding the TRIPS Agreement that the two treaties deserve the name Internet treaties. These elements mean more or less those provisions (and the related agreed statements) that were worked out and adopted under the so-called digital agenda of the 1996 Diplomatic Conference The digital agenda covered basically four issues: (i) the concept of reproduction and the application of the right of reproduction in the digital environment; (ii) the right or rights to be applied for interactive digital transmissions; (iii) the application of exceptions and limitations in the new environment; and (iv) obligations concerning technological protection measures and rights management information. These items on the digital agenda, and the solutions adopted by the Diplomatic Conference in respect of them, are discussed below in the guides to the WCT and the WPPT. ADMINISTRATIVE AND SUBSTANTIVE RELATIONSHIPS BETWEEN THE VARIOUS CONVENTIONS AND OTHER TREATIES ON COPYRIGHT AND RELATED RIGHTS (FROM THE BERNE CONVENTION TO THE TRIPS AGREEMENT) 34. The Berne Convention is not only the oldest international copyright instrument, but even now, the most fundamental element of the complex structure of conventions and other treaties in the field of copyright and related rights. 35. To start with, the UCC was adopted to serve as a bridge for those countries that had not joined the Berne Convention, allowing them to do so sooner or later and ensuring them international protection in the meantime. The Berne Convention was regarded as the instrument that offered truly appropriate international standards in this field. Thus, it was considered important to protect it against the possible migration of the members of the Berne Union to the UCC, which required a much lower level of protection; provisions were adopted to guarantee that the bridge worked in one direction only, namely towards the Berne Union. An Appendix Declaration was inserted into the UCC as an integral and inseparable part of that Convention, which provided that (i) works which, according to the Berne Convention, had as their country of origin a country which had withdrawn from the Berne Union after the adoption of the UCC, would not be protected by the UCC in the countries of the Berne Union; and that (ii) the UCC would not be applicable to the relationships among countries of the Berne Union insofar as they related to the protection of works having as their country of origin, within the meaning of the Berne Convention, a country of the Berne Union. That is, (i) it was not possible to leave the Berne Convention and join the UCC, and (ii) with the accession of UCC countries to the Berne Convention, the UCC ceased to be applied in the relationship of those countries with any other member country of the Berne Union. This has led, with the increasing number of accessions to the Berne Convention, to a dramatic decrease in the importance of the UCC. 36. A close relationship has also been established between the Berne Convention (and the UCC), on the one hand, and the Rome Convention on the other. Under Article 24 of the latter, only those countries that are members of the Berne Union and/or party to the UCC are eligible to accede to it.

14 37. The Phonograms Convention and the Satellites Convention have not been linked in an institutionalized way to either the Berne Convention or the Rome Convention. This has followed from the objective and the nature of those conventions. They serve in the fight against phonogram piracy and broadcast signal piracy. Thus, they are open for accession to all members of the United Nations without the condition of their being party to any other instrument, and great flexibility is granted to the Contracting Parties in respect of the way of fulfilling their obligations under those treaties There is no administrative relationship between the above-mentioned conventions administered by WIPO, on the one hand, and the TRIPS Agreement, on the other. At the same time, specific substantive relationships may be identified between the TRIPS Agreement and the Berne Convention, and, in certain aspects, also the Rome Convention. 39. In respect of the Berne Convention, the most important element of such substantive relationship is that Article 9.1 of the Agreement prescribes that the Members of the WTO which are all bound by the Agreement shall comply with Articles 1 through 21 of the Berne Convention [except for the provisions on moral rights, basically Article 6bis 8 ] and the Appendix thereto. Further elements are that Article 1.3 of the Agreement prescribes the mutatis mutandis application of the criteria of eligibility for protection (points of attachment) fixed in the Berne Convention, and that Article 3, on national treatment, refers to and allows the exceptions provided for in the Berne Convention to the obligation to grant such treatment. Under Article 4(b) of the Agreement, the same exceptions to the obligation to grant national treatment may also be applied as exceptions to the obligation of granting most-favoured-nation treatment. 40. The TRIPS Agreement also utilizes Berne Convention background in its Article 14 on related rights. Paragraph 6 of the Article provides for the mutatis mutandis application of Article 18 of the Berne Convention (concerning the application in time of obligations) to the rights of performers and producers of phonograms, while paragraph 3 provides for an alternative to granting related rights for broadcasters as mentioned in that paragraph (namely appropriate copyright protection for the subject matter of broadcasts subject to the provisions of the Berne Convention ). 41. Article 2.2 of the TRIPS Agreement contains a safeguard clause in favor of the Berne Convention (and other WIPOadministered conventions). In respect of the Berne Convention, it reads as follows: Nothing in Parts I or IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Berne Convention. By this, it is recognized that the TRIPS Agreement is also a special agreement under Article 20 of the Berne Convention, and thus it cannot in any way result in a decrease in the level of protection in the relationships between the members of the Berne Union. 42. Article 10.1 of the TRIPS Agreement deserves special attention from the viewpoint of the relationship between that Agreement and the Berne Convention. It reads as follows: Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971). This is an interpretation of the Berne Convention outside of the Berne Union. A challenging task might be to analyze the validity of this interpretative provision in the context of the Berne Convention. Such a step can, however, be spared since, as discussed in the comments to Article 4 of the WCT, below, the members of the Berne Union have accepted the same interpretation. 43. The substantive relationship between the TRIPS Agreement and the Rome Convention is somewhat less close. Nevertheless, Articles 1.3, 3 and 4(b) of the Agreement also refer to, and apply, mutatis mutandis, the criteria of eligibility, and the exceptions to national treatment, respectively, provided for in the Rome Convention. The first sentence of Article 14.6 also establishes an important substantive link. It reads as follows: Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention. Finally, Article 2.2 of the Agreement contains the same kind of safeguard clause in favor of the Rome Convention as in favor of the Berne Convention (recognizing by this implicitly that it is also a special agreement under Article 22 of the Rome Convention).

15 14 RELATIONSHIP BETWEEN THE WCT AND THE WPPT AND THE BERNE AND ROME CONVENTIONS AND THE TRIPS AGREEMENT 44. The WCT and the WPPT have such complex relationships with the instruments mentioned in the title above that they justify a separate analysis. 45. To start with the WCT, first, it should be stated that it is a special agreement under Article 20 of the Berne Convention. The meaning and the legal effect of this status is analyzed in the comments to Article 1(1) of the WCT, below. In addition, following from this status, there is no administrative relationship between the WCT and the Berne Convention. Membership in the Berne Union is not a condition of accession to the WCT. 46. The substantive relationship between the WCT and the Berne Convention is of the same nature as the relationship between the TRIPS Agreement and the Berne Convention, but it is even closer. Article 1(4) of the WCT applies the same legal technique as Article 9.1 of the TRIPS Agreement, in the sense that it obligates Contracting Parties to comply with Articles 1 to 21 and the Appendix of the Berne Convention (the difference is that it does not exclude from this the provisions on moral rights). Similarly to Article 2.3 of the TRIPS Agreement, Article 3 of the WCT refers to the criteria of eligibility for protection fixed in the Berne Convention. Furthermore, Article 1(2) of the WCT also contains a safeguard clause in favor of the Berne Convention for the relationships between the members of the Berne Union. 47. Article 4 of the WCT may be regarded as an interpretation of the Berne Convention, in the same way as Article 10.1 of the TRIPS Agreement, although its wording differs somewhat from the TRIPS text: Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression. This is further confirmed by an agreed statement concerning Article 4 of the Treaty. Other agreed statements adopted by the 1996 Diplomatic Conference may also be regarded as indirect interpretations of the Berne Convention. The agreed statement added to Article 5 on Compilations of Data (Databases) declares that it is consistent with Article 2 of the Berne Convention, and a similar declaration is included in one of the agreed statements regarding Article 10(2) of the Treaty on exceptions and limitations concerning its coverage as compared with the provisions of the Berne Convention on the same subject-matter. Finally, the agreed statement concerning Article 1(4) of the WCT offers a valuable interpretation on the application of Article 9 of the Berne Convention on the right of reproduction in the digital environment. 48. As discussed in the comments to Article 1 of the WPPT, below, although this is not stated separately, the WPPT is to be regarded as a special agreement under Article 22 of the Rome Convention. Article 1(1) of the Treaty also contains a safeguard clause protecting the applicability of the Rome Convention between countries party to it. 49. It should be noted that there is no administrative relationship between the WPPT and the WCT (or the Berne Convention or the UCC) similar to the relationship between the Rome Convention, on the one hand, and the Berne Convention and the UCC, on the other, as mentioned in paragraph 36, above. That is, it is possible to accede to the WPPT without acceding to the WCT, and membership in the Berne Union or adherence to the UCC is not a condition either. 50. Article 3 of the WPPT similarly to Article 1.3 of the TRIPS Agreement refers to the criteria of eligibility for the protection provided for in the Rome Convention, and extends their application to the Treaty. 51. Turning now to the relationship between the WCT and the WPPT, on the one hand, and the TRIPS Agreement, on the other, it should be noted that, by the time the preparatory work of the WCT and the WPPT had reached the decisive, final stage, the TRIPS Agreement had already been adopted and had entered into force. This had a positive impact on the preparatory work

16 in respect of certain issues which were pending in the WIPO Committees, but which had been solved in various ways in the TRIPS Agreement, such as the issues of the protection of computer programs and databases, the right of rental, and the term of protection of rights in performances and in phonograms. This positive impact consisted in the fact that there was no need for further negotiations on these issues; it was possible to simply include the relevant TRIPS norms in the two treaties as part of the new, up-to-date international standards However, the settlement of certain issues in the TRIPS context also had set a limit to the scope and level of protection to be granted under the new treaties. The delegations of certain countries stated repeatedly that they were not ready to reopen negotiations on such issues with the possible consequence of extending the scope of protection or raising its level. This does not mean that the wording of the relevant provisions was necessarily the same in the two WIPO treaties as in the TRIPS Agreement. The TRIPS provisions were not included by reference but rather through the reproduction of their contents in the new treaties, sometimes with some differences in wording. 53. In the case of several of these provisions taken from the TRIPS Agreement, the 1996 Diplomatic Conference adopted some agreed statements clarifying that these provisions in the WIPO treaties were supposed to mean the same as the corresponding provisions in the TRIPS Agreement. However, the legal nature and impact of these agreed statements differ to a certain extent. 54. The agreed statements concerning the relationship between Articles 4 and 5 of the WCT and the corresponding provisions of the TRIPS Agreement are similar; in fact, in a mutatis mutandis manner, practically the same: Agreed statement concerning Article 4: The scope of protection for computer programs under Article 4 of this Treaty, read with Article 2, is consistent with Article 2 of the Berne Convention and on a par with the relevant provisions of the TRIPS Agreement. Agreed statement concerning Article 5: The scope of protection for compilations of data (databases) under Article 5 of this Treaty, is consistent with Article 2 of the Berne Convention and on a par with the relevant provisions of the TRIPS Agreement. 55. This may be regarded as a kind of interpretation of the TRIPS Agreement, in the sense that, although the language of the provisions of Articles 4 and 5 of the WCT seems to be more general than that of Article 10.1 and 10.2 of the TRIPS Agreement, the agreed statements indicate that these provisions of the WCT are regarded as on a par with the relevant provisions of the TRIPS Agreement. This, however, does not have a truly substantive importance since, in the case of the provisions on computer programs and databases, diverging interpretations may hardly emerge depending on whether the Berne, TRIPS or WCT provisions are taken as a basis. 56. There were, however, two provisions of the TRIPS Agreement about the interpretation of which there had been debate, and, in respect of which when reproduced in the WCT agreed statements were adopted. These agreed statements reflect certain positions which were expressed during the debate, and, consequently, reject some others, also discussed. By this, these agreed statements, in a way, pretend to decide these debates outside the TRIPS context, but practically in relation to the same kinds of provisions as in the TRIPS Agreement. All this may raise quite complex questions also concerning the interpretation of the relevant TRIPS norms. 57. One of these provisions and agreed statements concerns the provision of Article 7(1) of the WCT on the right of rental in respect of phonograms. As discussed, below, the text of this provision does not since, due to the different context, it cannot repeat the relevant provision (Article 14.4) of the TRIPS Agreement word for word. Nevertheless, the following agreed statement has been adopted concerning this provision of the WCT:

17 16 It is understood that the obligation under Article 7(1) does not require a Contracting Party to provide an exclusive right of commercial rental to authors who, under the Contracting Party s law, are not granted rights in respect of phonograms. It is understood that this obligation is consistent with Article 14(4) of the TRIPS Agreement [emphasis added]. 58. The most important special feature of this agreed statement is not just that it states that a provision worded not exactly in the same way as Article 14.4 of the TRIPS Agreement is, nevertheless, consistent with it (although this in itself would be quite an interesting case of cross-interpretation ). It rather consists in the fact that it interprets Article 7(1) in substance, and it suggests that the obligation according to that interpretation is also consistent with this provision of the TRIPS Agreement. The special nature of the agreed statement becomes even more distinct if it is taken into account that it reflects only one of the possible interpretations about which there were and there may still be differences of opinion. 59. Although, in principle, this agreed statement was adopted concerning Article 7(1) of the WCT alone, it has similar consequences for Article 9(1) of the WPPT on the right of rental of performers, as also discussed below. 60. In the case of another provision taken from the TRIPS Agreement, one of the questions is just whether or not it is a plus element in comparison with the Berne Convention. This provision is Article 10(2) of the WCT, which reads as follows: Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. Article 13 of the TRIPS Agreement does not seem to refer to the Berne Convention, since it reads as follows: Members shall confine any limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. Since, however, the exclusive rights to which this provision refers are, inter alia (and, in fact, in the majority of cases) those which are provided for in the Berne Convention (and which must be applied also under the TRIPS Agreement in accordance with Article 9.1 therein), from the viewpoint of the application of exceptions and limitations in the context of the Berne Convention, the two provisions say the same. 61. This is the reason for which the second sentence of the agreed statement concerning Article 10(2) of the WCT may also be regarded as another case of cross-interpretation between the WCT and the TRIPS Agreement. The sentence reads as follows: It is understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention. As discussed below, there is no complete agreement about this kind of equalizing interpretation of Article 13 of the TRIPS Agreement (although it seems that it is truly the correct one). 62. The question is whether or not these cross-interpreting agreed statements, along with the texts taken from the TRIPS Agreement (but not always with the same wording), may have any impact on the interpretation and application of the corresponding provisions of the TRIPS Agreement. One thing seems quite sure: statements adopted outside the WTO-TRIPS context concerning the TRIPS Agreement do not or, at least, do not automatically bind the WTO-TRIPS bodies, such as the TRIPS Council or the Dispute Settlement Body. This might only be the case if these agreed statements could be regarded a subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions under Article of the Vienna Convention on the Law of Treaties (adopted in May 1969). It is obvious, however, that although a great number of countries having adopted the treaties and the related agreed statements were also Members of the WTO, there was not a sufficiently complete overlap between the membership of the WTO and the said countries; thus, it would be difficult to speak about such a subsequent agreement between all the Members of the WTO. At the same time, it would also be difficult for any competent TRIPS body to completely neglect the fact that a great number of WTO member countries participated in the adoption of these agreed statements. Certainly, such cross-interpretation, as a minimum, will also have to be taken into account in the TRIPS context irrespective of whether or not it is eventually found decisive.

18 INTERPRETATION OF THE CONVENTIONS AND TREATIES IN THE GUIDES The Berne, Rome, Phonograms and Satellites Conventions, the WCT and the WPPT do not regulate the issues of the interpretation of their own provisions. Therefore, Articles 31 and 32 of the Vienna Convention on the Law of Treaties will be used as a basis for the interpretation of those instruments, below. 64. Articles 31 and 32 of the Vienna Convention read as follows: Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) (b) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) (b) (c) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

19 18 (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. 65. Two comments should be added to these provisions. First, the Vienna Convention only applies to treaties adopted after its entry into force. Therefore, in principle, it would not be applicable to the Berne and Rome Conventions. The provisions of Articles 31 and 32 are, however, regarded and rightly so as a codification of the principles developed in the framework of customary international law. Thus, their relevance should also be recognized for the two earlier conventions. 66. The second comment relates to the substantive provisions of the Berne and Rome Conventions included in the WCT and the WPPT, and more closely to the question of whether the above-mentioned sources of interpretation the context, the possible substantial agreements and subsequent practice, the special meaning of certain words and expressions, and the preparatory work of the treaty and the circumstances of its conclusion only relate to the new treaties or also to the conclusion and history of the Berne and Rome Conventions. 67. It is submitted that the correct answer to this question is that the context of the possible subsequent agreements and subsequent practice related to the special meaning of the words and expressions appearing in, as well as the preparatory work and the circumstances of the conclusion of, the Berne and Rome Conventions should all be taken into account. Otherwise, it would be impossible to satisfy the most important objective and condition of any appropriate treaty interpretation; namely, that a treaty must be interpreted in good faith. This is particularly clear with respect to the substantive provisions of the Berne Convention, since the text of these provisions has not simply been reproduced in the WCT; rather, it was made an obligation of the Contracting Parties to comply with these provisions of the Berne Convention.

20 4. There is some uncertainty about which of these years; and it may be that both are correct, since there may have been a relevant distinction between calendar year and regal year. 5. Sam Ricketson referred to this form of development in 1986 in his well-known book on the Berne Convention: In essence, guided development appears to be the present policy of WIPO, whose activities in promoting study and discussions on problem areas have been of fundamental importance to international copyright protection in recent years. See Sam Ricketson: Berne Convention for the Protection of Literary and Artistic Works: , Kluver, London, 1986, (hereinafter: Ricketson), p The case of computer programs is a good example. In February 1985, the meeting of a Group of Experts on the Copyright Aspects of the Protection of Computer Software took place at WIPO. At that time, there were still only five countries which in their legislation recognized explicitly the copyright protection of computer programs: Australia, Hungary, India, the Philippines and the United States of America (it is another matter that, in some other countries, such protection was granted on the basis of case law). That meeting, on the basis of a comprehensive study prepared by Michael Keplinger (US Patent and Trademark Office, Washington, D.C.) and of the thorough discussion, brought about a decisive breakthrough towards copyright protection of computer programs. It is sufficient to mention that, in June and July of the same year, the following four countries provided, in their statutory laws, for the copyright protection of computer programs: France, Germany, Japan and the United Kingdom. 7. Not to be confused with the more general WIPO Digital Agenda (WIPO document WO/GA/24/11 Rev.). 8. The reason for using the adverb basically here is that, although, in the Berne Convention, it is Article 6bis which provides specifically for moral rights, there are some elements in other provisions of the Convention which may be regarded as derived from the provisions of Article 6bis. The drafters of the TRIPS Agreement have also taken into account those derived elements, since the second sentence of Article 9.1 provides that Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that [the Berne] Convention or of the rights derived therefrom. In this respect, the WIPO study entitled Implications of the TRIPS Agreement on Treaties Administered by WIPO (No. 464(E)) prepared at the request of the General Assembly of WIPO and published in 1996, contains the following analysis: The TRIPS Agreement does not specify which are the rights derived from Article 6bis of the Berne Convention. It is believed that the right provided in Article 10(3) of the Berne Convention may be such a right. Under paragraphs (1) and (2) of that Article, the author may not oppose, under certain circumstances, that quotations be made without his authorization from his work or that his work be used without his authorization for illustration in the course of teaching. It is in respect of these so-called free uses that Article 10(3) of the Berne Convention provides that mention must be made of the name of the author. In other words, it provides that the right of the paternity be respected. It would seem therefore that the TRIPS Agreement excludes the application of Article 10(3) of the Berne Convention, that is, that, under the TRIPS Agreement the said quotations and illustrations need not mention the name of the author. The same applies to Article IV(3) of the Appendix to the Berne Convention which provides that The name of the author shall be indicated on all copies of the translation or reproduction published under a license granted under Article II or Article III. Furthermore, it would seem that the TRIPS Agreement also excludes the application of Article 11bis(2) of the Berne Convention to the extent that the latter provides that they [that is, the conditions that may be determined under Article 11bis(2)] shall not in any circumstances be prejudicial to the moral rights of the author. 19

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