U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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39–118

" ! SENATE 105TH CONGRESS

1st Session

TREATY DOC.

1997

105–17

WIPO COPYRIGHT TREATY (WCT) (1996) AND WIPO

PERFORMANCES AND PHONOGRAMS TREATY (WPPT)

(1996)

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

WORLD INTELLECTUAL PROPERTY ORGANIZATION COPYRIGHT

TREATY AND THE WORLD INTELLECTUAL PROPERTY ORGANIZATION PERFORMANCES AND PHONOGRAMS TREATY, DONE AT GENEVA ON DECEMBER 20, 1996, AND SIGNED BY THE UNITED

STATES ON APRIL 12, 1997

JULY 28, 1997.—Treaty was read the first time and, together with the

accompanying papers, referred to the Committee on Foreign Relations

and ordered to be printed for the use of the Senate

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, July 28, 1997.

To the Senate of the United States:

I transmit herewith for Senate advice and consent to ratification

the World Intellectual Property Organization Copyright Treaty and

the World Intellectual Property Organization Performances and

Phonograms Treaty, done at Geneva on December 20, 1996, and

signed by the United States on April 12, 1997. Also transmitted is

the report of the Department of State with respect to the Treaties.

These Treaties are in the best interests of the United States.

They ensure that international copyright rules will keep pace with

technological change, thus affording important protection against

piracy for U.S. rightsholders in the areas of music, film, computer

software, and information products. The terms of the Treaties are

thus consistent with the United States policy of encouraging other

countries to provide adequate and effective intellectual property

protection.

Legislation is required to implement certain provisions of the

Treaties. Legislation is also required to ensure that parties to the

Treaties are granted, under U.S. copyright law, the rights to which

they are entitled under the Treaties. That legislation is being prepared and is expected to be submitted shortly.

I recommend, therefore, that the Senate give early and favorable

consideration to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, and give its advice and consent

to ratification, subject to a declaration under Article 15(3) of the

WIPO Performances and Phonograms Treaty described in the accompanying State Department report.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, July 22, 1997.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you, with a view

to their transmission to the Senate for advice and consent to ratification, the World Intellectual Property Organization (‘‘WIPO’’)

Copyright Treaty and the WIPO Performances and Phonograms

Treaty, both done at Geneva on December 20, 1996 (hereinafter,

‘‘the Treaties’’). These Treaties were adopted under the auspices of

the World Intellectual Property Organization to strengthen international standards for the protection of copyright.

Each of the Treaties contains provisions that are the same as

provisions in the other Treaty, as well as provisions specific to its

own subject matter.

Provisions common to the treaties

The Treaties respond to the challenges of protecting works in the

realm of digital technology. In that regard both Treaties oblige parties to ensure that rightsholders have the exclusive right to control

on-demand transmissions of works to members of the public (Article 8, Copyright Treaty; Article 14, Performances and Phonograms

Treaty). Both Treaties oblige parties to provide adequate legal protection against the circumvention of technologically based security

measures, and to apply appropriate and effective remedies against

protection-defeating devices or services (Article 11, Copyright Treaty; Article 18, Performances and Phonograms Treaty). Both require

the provision of effective remedies against the knowing removal or

alteration of electronic rights-management information without authority, and against the related acts of distribution, importation for

distribution and communication to the public with knowledge that

such information has been removed or altered (Article 12, Copyright Treaty; Article 19, Performances and Phonograms Treaty).

Both Treaties oblige parties to adopt the measures necessary to

ensure the application of the Treaties and to ensure that enforcement procedures are available under the parties’ laws so as to permit effective action against any act of infringement of rights covered by the Treaties, including provision of expeditious remedies to

prevent infringements and remedies which constitute a deterrent to

further infringements (Article 14, Copyright Treaty; Article 23, Performances and Phonograms Treaty).

In addition to these substantive obligations, each Treaty provides

that not only WIPO member States, but also the European Com-
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munity, as well as similar intergovernmental organizations, may

become party to the Treaty. Admission of intergovernmental organizations other than the European Community will be subject to a

decision by an Assembly created to administer each Treaty. To be

eligible, such an organization must declare that it is competent in

respect of, and have its own legislation binding on all its member

States on, matters covered by the Treaty (Article 17, Copyright

Treaty; Article 26, Performances and Phonograms Treaty).

Each party that is a State has a vote in the Assembly; intergovernmental organizations do not have an independent vote. However, an intergovernmental organization is permitted to participate

in a vote on behalf of its member States that are party to the Treaty. There is no allowance for ‘‘split voting’’; either an organization

votes on behalf of all member State parties, or each member State

party votes individually (Article 15(3), Copyright Treaty; Article

24(3), Performances and Phonograms Treaty).

In order to ensure that a party to one of the Treaties has recourse in the event of a dispute or non-compliance with treaty obligations by a party that is an intergovernmental organization or a

member state of such an organization, each Treaty provides that

each contracting party bears all the obligations under the treaty

(Article 18, Copyright Treaty; Article 27, Performances and

Phonograms Treaty).

Each Treaty enters into force three months after thirty instruments of ratification or accession by states have been deposited

with the Director General of WIPO. This number makes it impossible for the European Community and its Member States to be in

a position to control the Assembly (Article 20, Copyright Treaty;

Article 29, Performances and Phonograms Treaty).

WIPO Copyright Treaty

The WIPO Copyright Treaty provides in Article 1 that it is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, revised

at Paris, July 24, 1971, as amended (the ‘‘Berne Convention’’), to

which the United States is a party (Article 1). Article 20 of the

Berne Convention provides that the states party to the Berne Convention reserve the right to enter into special agreements among

themselves insofar as the special agreements grant to authors more

extensive rights than those granted under the Berne Convention.

The Copyright Treaty (Article 1(4)) requires that parties comply

with the substantive obligations (Articles 1–21 and the Appendix)

of the Berne Convention. Like the Berne Convention, the Copyright

Treaty provides (Article 3) that parties may not impose formalities

on the nationals of other parties as a condition for claiming protection under the Treaty.

In Articles 4 and 5, the Copyright Treaty clarifies, along the lines

of Article 10 of the World Trade Organization Agreement on TradeRelated Aspects of Intellectual Property Rights done at Marrakesh,

April 15, 1994, (‘‘TRIPS Agreement’’), that computer programs are

protected as literary works under the Berne Convention, and that

original compilations of data (databases) that incorporate copyrightable authorship are also protected.
VII

The Copyright Treaty (Article 6) explicitly recognizes a right of

distribution for all categories of works (which, under the Berne

Convention and the TRIPS Agreement is granted explicitly only for

cinematographic works).

As does the TRIPS Agreement, the Copyright Treaty (Article 7)

provides for an exclusive post-first-sale right of rental for computer

programs, cinematographic works and works embodied in

phonograms; parties need not implement the rental right in respect

of computer programs where the program itself is not the object of

rental, and in the case of cinematographic works where rental does

not lead to widespread copying impairing the right of reproduction.

The Copyright Treaty (Article 8) extends to all categories of

works the right of communication to the public (which under the

Berne Convention and the TRIPS Agreement is required only to a

varying extent for different categories of works), and clarifies that

this right covers making works available to the public by wire or

wireless means, through an interactive, on-demand transmission.

The Copyright Treaty (Article 9) extends the term of protection

of photographic works to 50 years after the death of the author, as

is already the case for all other categories of literary works. It does

so by stating that parties shall not apply to provisions of Article

7(4) of the Berne Convention, which allows parties to limit the

term of protection for such works to a minimum term of twentyfive years from the making of the work.

The Copyright Treaty (Article 10) extends the application of the

three-step test for exceptions established for the right of reproduction in Article 9(2) of the Berne Convention to all other rights (as

in Article 13 of the TRIPS Agreement): limitations or exceptions to

all rights may be made in certain special cases that do not conflict

with a normal exploitation of the work and do not unreasonably

prejudice the interests of the author.

The Copyright Treaty (Article 22) does not allow any reservations

to the obligations it sets forth.

WIPO Performances and Phonograms Treaty

Several important provisions of the WIPO Performances and

Phonograms Treaty offer responses to the challenges of digital

technology for performances and phonograms in digital form in the

Internet and similar electronic networks. The relevant definitions

(phonogram, fixation, producer of a phonogram, publication, broadcasting, communication to the public) are broad enough to cover

the requirements of digital technology (Article 2). ‘‘Moral rights’’

are provided under Article 5 for performers in respect of their live

aural performances or performances fixed in phonograms (although

these rights cover many kinds of modifications, they may be particularly relevant in the case of digital manipulations of performances fixed in phonograms). In Articles 10 and 14, this Treaty provides an exclusive right for both performers and producers of

phonograms to authorize making available their fixed performances

and phonograms, respectively, by wire or wireless means, in an

interactive, on-demand manner.

the Performances and Phonograms Treaty (Article 4) obliges parties to grant national treatment in respect of the rights provided

in the Treaty to nationals of other parties, except to the extent that
VIII

another party makes use of reservations permitted under Article

15(3) of the Treaty. It also requires that protection not be subject

to any formalities.

Other important provisions of the Treaty are described below.

Also noted are differences and similarities with the International

Convention for the Protection of Performers, Producers of

Phonograms and Broadcasting Organizations done at Rome, October 26, 1961 (‘‘Rome Convention’’), to which the United States is

not a party, and the TRIPS Agreement. The Performances and

Phonograms Treaty has no direct relationship to the Rome Convention. It includes some of the provisions of the Convention by reference (the provisions on criteria of eligibility for protection and on

the possibility to apply reciprocity in respect of the right to remuneration for broadcasting and communication to the public), but

there is no obligation to apply the other provisions of the Rome

Convention. There is no legal relationship between the Treaty and

the TRIPS Agreement.

Article 6 of the Performances and Phonograms Treaty (Article 6)

provides for the exclusive rights of performers to authorize the

broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast

program, and the fixation of their unfixed performances (this generally corresponds to the standards in the Rome Convention and

the TRIPS Agreement). This Treaty (Articles 7 and 11) also includes an exclusive right of reproduction for performers in respect

of their fixed performances and for producers of phonograms (in

harmony with the Rome Convention and the TRIPS Agreement).

The Performances and Phonograms Treaty (Articles 8 and 12)

provides recognition of a right of distribution (on which there is no

provision in the Rome Convention or the TRIPS Agreement) for

both performers and producers of phonograms.

The Performances and Phonograms Treaty (Articles 9 and 13) includes an exclusive post-first-sale right of rental for both performers and producers of phonograms; such a right is not granted in the

Rome Convention, but is granted in the TRIPS Agreement explicitly for producers of phonograms and left to national legislation as

far as performers are concerned. The Performances and

Phonograms Treaty, furthermore, allows those countries where a

system of equitable remuneration was applied on April 15, 1994, to

maintain such a system, rather than provide an exclusive right

(such a ‘‘grandfathering’’ clause is also included in the TRIPS

Agreement).

The Performances and Phonograms Treaty (Article 15(1)) includes the right to a single equitable remuneration for performers

and producers of phonograms for the broadcasting and communication to the public of phonograms published for commercial purposes

or reproductions of such phonograms. Such a right is provided in

the Rome Convention, but not in the TRIPS Agreement. Article

15(2) allows parties to establish in national legislation that the remuneration shall be claimed from the user by the performer or the

producer of a phonogram, or both. Article 15(3) permits any party

to declare, in a notification to the Director General of WIPO, that

it will apply the provisions of Article 15(1) only in respect of certain
IX

uses or will otherwise limit their application or that it will not

apply these provisions at all.

I recommend that, in accordance with Article 15(3), the United

States include the following declaration in its instrument of ratification:

Pursuant to Article 15(3), the United States declares

that it will apply the provisions of Article 15(1) only in respect of certain acts of broadcasting and communication to

the public by digital means for which a direct or indirect

fee is charged for reception, and for other retransmissions

and digital phonorecord deliveries, as provided under

United States law.

Article 16 of the Performances and Phonograms Treaty provides

that limitations or exceptions to rights may be made in certain special cases that do not conflict with a normal exploitation of the performance or phonogram and do not unreasonably prejudice the interests of the performer or the producer of the phonogram. The

same test is established in Article 9(2) of the Berne Convention,

and is applied to the rights of performers and producers of

phonograms under Article 13 of the TRIPS Agreement.

The Performances and Phonograms Treaty (Article 17) provides

for a fifty-year term of protection for the rights of both performers

and producers of phonograms (as in the TRIPS Agreement; the

Rome Convention provides for only a twenty-year term).

Except for the remuneration right for broadcasting in Article

15(3), no reservations are allowed under the Performances and

Phonograms Treaty (Article 21).

As provided in Article 22, this Treaty applies to performances

that took place and phonograms that were fixed before the date of

entry into force of the Treaty, provided that the term of protection

has not expired, except that a party may limit the application of

Article 5 concerning the moral rights of performers to performances

after the entry into force of the Treaty.

Statements agreed to at the Diplomatic Conference are found as

footnotes in the texts of the Treaties. These statements represent

the negotiators’ understanding of the language of the Treaties and

can aid in the interpretation of certain articles. In particular, the

agreed statements explain that computer storage of works and

phonograms is covered by the Treaties, and that the provisions governing limitations and exceptions provide sufficient flexibility for

countries to provide for and extend appropriate limitations on

rights when adapting their laws to the digital environment.

Legislation is required to implement certain provisions of the

Treaties. Legislation is also required to ensure that parties to the

Treaties are granted, under U.S. copyright law, the rights of which

they are entitled under the Treaties. That legislation is being prepared and is expected to be submitted shortly.

Prompt ratification of the Treaties will advance United States

policy in favor of strong intellectual property protection and is consistent with United States foreign policy in encouraging other countries to provide adequate and effective protection for intellectual

property.
X

I recommend, therefore, that the WIPO Copyright Treaty and the

WIPO Performances and Phonograms Treaty be transmitted to the

Senate as soon as possible for its advice and consent to ratification,

subject to a declaration under Article 15(3) of the WIPO Performances and Phonograms Treaty, limiting the obligation of the United

States to provide remuneration rights for the broadcast of sound

recordings.

Respectfully submitted,

STROBE TALBOTT.
(1)
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