WIPO Performances and Phonograms Treaty (WPPT) - Joint Declarations
Date: 1996-12-20
Institutions: Argentina, Austria, Belarus, Belgium, Bolivia, Burkina Faso, Canada, Chile, Colombia, Costa Rica, Croatia, Denmark, Ecuador, Estonia, European Community, Finland, France, Germany, Ghana, Greece, Hungary, Indonesia, Ireland, Israel, Italy, Kazakhstan, Kenya, Kyrgyzstan, Luxembourg, Mexico, Moldova, Monaco, Mongolia, Namibia, Netherlands, Nigeria, Panama, Portugal, Romania, Senegal, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Togo, United Kingdom, United States, Uruguay, Venezuela
Subjects: World Intellectual Property Organisation, broadcasting, copyright, literary and artistic property

11.4.2000

EN

Official Journal of the European Communities

L 89/15

WIPO PERFORMANCES AND PHONOGRAMS TREATY

(WPPT)

Geneva (1996)

Table of contents

Preamble

CHAPTER I

Article 1

Article 2

Article 3

Article 4

GENERAL PROVISIONS

Relation to other conventions

Definitions

Beneficiaries of protection under this Treaty

National treatment

CHAPTER II

RIGHTS OF PERFORMERS

Article 5

Article 6

Article 7

Article 8

Article 9

Moral rights of performers

Economic rights of performers in their unfixed performances

Right of reproduction

Right of distribution

Right of rental

Article 10

Right of making available of fixed performances

CHAPTER III

RIGHTS OF PRODUCERS OF PHONOGRAMS

Article 11

Article 12

Article 13

Article 14

Right of reproduction

Right of distribution

Right of rental

Right of making available of phonograms

CHAPTER IV

COMMON PROVISIONS

Article 15

Article 16

Article 17

Article 18

Article 19

Article 20

Article 21

Article 22

Article 23

Right to remuneration for broadcasting and communication to the public

Limitations and exceptions

Term of protection

Obligations concerning technological measures

Obligations concerning rights management information

Formalities

Reservations

Application in time

Provisions on enforcement of rights

CHAPTER V

ADMINISTRATIVE AND FINAL CLAUSES

Article 24

Article 25

Article 26

Article 27

Article 28

Article 29

Article 30

Article 31

Article 32

Article 33

Assembly

International Bureau

Eligibility for becoming Party to the Treaty

Rights and obligations under the Treaty

Signature of the Treaty

Entry into force of the Treaty

Effective date of becoming Party to the Treaty

Denunciation of the Treaty

Languages of the Treaty

Depositary

L 89/16

EN

Official Journal of the European Communities

11.4.2000

PREAMBLE

THE CONTRACTING PARTIES,

DESIRING to develop and maintain the protection of the rights of performers and producers of phonograms in a manner
as effective and uniform as possible,

RECOGNISING the need to introduce new international rules in order to provide adequate solutions to the questions
raised by economic, social, cultural and technological developments,

RECOGNISING the profound impact of the development and convergence of information and communication technolo-
gies on the production and use of performances and phonograms,

RECOGNISING the need to maintain a balance between the rights of performers and producers of phonograms and the
larger public interest, particularly education, research and access to information,

HAVE AGREED AS FOLLOWS:

CHAPTER I

GENERAL PROVISIONS

Article 1

Relation to other conventions

1.
Nothing in this Treaty shall derogate from existing obli-
gations that Contracting Parties have to each other under the
International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organisations done
in Rome, October 26, 1961 (hereinafter the ‘Rome Conven-
tion’).

2.
Protection granted under this Treaty shall leave intact and
shall in no way affect the protection of copyright in literary
and artistic works. Consequently, no provisions of this Treaty
may be interpreted as prejudicing such protection.

3.
This Treaty shall not have any connection with, nor shall
it prejudice any rights and obligations under, any other treaties.

Article 2

Definitions

performance or other sounds, or the representations of
sounds;

(e) ‘publication’ of a fixed performance or a phonogram means
the offering of copies of the fixed performance or the
phonogram to the public, with the consent of the right-
holder, and provided that copies are offered to the public in
reasonable quantity;

(f) ‘broadcasting’ means the transmission by wireless means
for public reception of sounds or of images and sounds or
of the representations thereof; such transmission by satellite
is also ‘broadcasting’; transmission of encrypted signals is
‘broadcasting’ where the means for decrypting are provided
to the public by the broadcasting organisation or with its
consent;

(g) ‘communication to the public’ of a performance or a
phonogram means the transmission to the public by any
medium, otherwise than by broadcasting, of sounds of a
the representations of
performance or
sounds fixed in a phonogram. For the purposes of Article
15,
includes making the
sounds or representations of sounds fixed in a phonogram
audible to the public.

‘communication to the public’

the sounds or

For the purposes of this Treaty:

(a) ‘performers’ are actors, singers, musicians, dancers, and
other persons who act, deliver, declaim, play in, interpret,
or otherwise perform literary or artistic works or expres-
sions of folklore;

(b) ‘phonogram’ means

the sounds of a
the fixation of
performance or of other sounds, or of representation of
sounds, other than in the form of a fixation incorporated in
a cinematographic or other audiovisual work;

Article 3

Beneficiaries of protection under this Treaty

1.
Contracting Parties shall accord the protection provided
under this treaty to the performers and producers of phono-
grams who are nationals of other Contracting Parties.

(c) ‘fixation’ means the embodiment of sounds, or of the repre-
from which they can be perceived,

sentations thereof,
reproduced or communicated through a device;

(d) ‘producer of a phonogram’ means the person, or the legal
entity, who or which takes the initiative and has the
the sounds of a
responsibility for the first

fixation of

2.
The nationals of other Contracting Parties shall be under-
stood to be those performers or producers of phonograms who
would meet the criteria for eligibility for protection provided
under the Rome Convention, were all the Contracting Parties to
this Treaty Contracting States of that Convention. In respect of
these criteria of eligibility, Contracting Parties shall apply the
relevant definitions in Article 2 of this Treaty.

11.4.2000

EN

Official Journal of the European Communities

L 89/17

Any Contracting Party availing itself of the possibilities
3.
provided in Article 5(3) of the Rome Convention or, for the
purposes of Article 5 of the same Convention, Article 17
thereof shall make a notification as foreseen in those provisions
to the Directory-General of the World Intellectual Property
Organisation (WIPO).

Article 4

National treatment

Article 6

Economic

rights

of

performers
performances

in their

unfixed

Performers shall enjoy the exclusive right of authorising, as
regards their performances:

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

(ii) the fixation of their unfixed performances.

1.
Each Contracting Party shall accord to nationals of other
Contracting Parties, as defined in Article 3(2), the treatment it
accords to its own nationals with regard to the exclusive rights
specifically granted in this Treaty, and to the right to equitable
remuneration provided for in Article 15 of this Treaty.

Article 7

Right of reproduction

2.
The obligation provided for in paragraph 1 does not
apply to the extent that another Contracting Party makes use of
the reservations permitted by Article 15(3) of this Treaty.

Performers shall enjoy the exclusive right of authorising the
direct or indirect reproduction of their performance fixed in
phonograms,

in any manner or form.

CHAPTER II

RIGHTS OF PERFORMERS

Article 5

Moral rights of performers

Independently of a performer's economic rights, and even
1.
after the transfer of those rights, the performer shall, as regards
his live aural performances or performances fixed in phono-
grams, have the right to claim to be identified as the performer
of this 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
this perfor-
mances that would be prejudicial to his reputation.

Article 8

Right of distribution

Performers shall enjoy the exclusive right of authorising
1.
the making available to the public of the original and copies of
their performances fixed in phonograms through sale or other
transfer of ownership.

Nothing in this Treaty shall affect

2.
the freedom of
Contracting Parties to determine the conditions, if any, under
which the exhaustion of the right in paragraph 1 applies after
the first sale or other transfer of ownership of the original or a
the
copy of
performer.

the performance with the authorisation of

Article 9

Right of rental

2.
The rights granted to a performer in accordance with
paragraph 1 shall, after his death, be maintained, at least until
the expiry of the economic rights, and shall be exercisable by
the persons or institutions authorised by the legislation of the
Contracting Party where protection is claimed. However, those
Contracting Parties whose legislation, at the moment of their
ratification of or accession to this Treaty, does not provide for
protection after the death of the performer of all rights set out
in the preceding paragraph may provide that some of these
rights will, after his death, cease to be maintained.

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

1.
Performers shall enjoy the exclusive of authorising the
commercial rental to the public of the original and copies of
their performances fixed in phonograms as determined in the
national law of Contracting Parties, even after distribution of
them by, or pursuant to, authorisation by the performer.

2.
Notwithstanding the provisions of paragraph 1, a
Contracting Party that, on April 15, 1994, had and continues
to have in force a system of equitable remuneration of perfor-
mers for the rental of copies of their performances fixed in
phonograms, may maintain that system provided that
the
commercial rental of phonograms is not giving rise to the
material impairment of the exclusive right of reproduction of
performers.

L 89/18

EN

Official Journal of the European Communities

11.4.2000

Article 10

of the public may access them from a place and at a time
indivisually chosen by them.

Right of making available of fixed performances

Performers shall enjoy the exclusive right of authorising the
making available to the public of their performances fixed in
phonograms, by wire or wireless means, in such a way that
members of the public may access them from a place at a time
individually chosen by them.

CHAPTER III

RIGHTS OF PRODUCERS OF PHONOGRAMS

Article 11

Right of reproduction

Producers of phonograms shall enjoy the exclusive right of
authorising the direct of indirect reproduction of their phono-
grams,

in any manner or form.

Article 12

Right of distribution

1.
Producers of phonograms shall enjoy the exclusive right
of authorising the making available to the public of the original
and copies of their phonograms through sale or other transfer
of ownership.

Nothing in this Treaty shall affect

2.
the freedom of
Contracting Parties to determine the conditions, if any, under
which the exhaustion of the right in paragraph 1 applies after
the first sale or other transfer of ownership fo the original or a
copy of the phonogram with the authorising of the producer of
the phonogram.

Article 13

Right of rental

Producers of phonograms shall enjoy the exclusive right
1.
the
of authorising the commercial rental
original and copies of their phonograms, even after distribution
of them by, or pursuant to, authorisation by the producer.

to the public of

2.
Notwithstanding the provisions of paragraph 1, a
Contracting Party that, on April 15, 1994, had and continues
to have in force a system of equitable remuneration of produ-
cers of phonograms for the rental of copies of their phono-
grams, may maintain that system provided that the commercial
rental of phonograms is not giving rise to the material impai-
ment of the exclusive right of reproduction of producers of
phonograms.

CHAPTER IV

COMMON PROVISIONS

Article 15

Right to remuneration for broadcasting and communi-
cation to the public

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

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

3.
Any Contracting Party may, in a notification deposited
with the Director-General of WIPO, declare that will apply the
provisions of paragraph 1 only in respect of certain uses, or
that it will limit their application in some other way, or that it
will not apply these provisions at all.

4.
For the purposes of this Article, phonograms made avail-
able to the public by wire or wireless means in such a way that
members of the public may access them from a place and at a
time individually chosen by them shall be considered as if they
had been published for commercial purposes.

Article 16

Limitations and exceptions

in their national

Contracting Parties may,

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

Article 14

Right of making available of phonograms

Producers of phonograms shall enjoy the exclusive right of
authorising the making available to the public of their phono-
grams, by wire or wireless means, in such a way that members

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

11.4.2000

EN

Official Journal of the European Communities

L 89/19

Article 17

Term of protection

cation on making of a fixed performance or a phonogram to
the public.

The term of protection to be granted to performers under
1.
this Treaty shall last, at least, until the end of a period of 50
years computed from the end of
the year in which the
performance was fixed in a phonogram.

2.
The term of protection to be granted to producers of
phonograms under this Treaty shall last, at least, until the end
of a period of 50 years computed from the end of the year in
which the phonogram was published, or failing such publica-
tion within 50 years from fixation of the phonogram, 50 years
from the end of the year in which the fixation was made.

Article 18

Obligations concerning technological measures

Contracting Parties shall provide adequate legal protection and
effective legal remedies against the circumvention of effective
technological measures that are used by performers of produ-
cers of phonograms in connection with the exercise of their
rights under this Treaty and that restrict acts, in respect of their
performances or phonograms, which are not authorised by the
performers or the producers of phonogram concerned or
permitted by law.

Article 19

Obligations concerning rights management information

1.
Contracting Parties shall provide adequate and effective
legal remedies against any person knowingly performing any of
the following acts knowing, or with respect to civil remedies
having reasonable grounds to know, that it will induce, enable,
facilitate or conceal an infringement of any right covered by
this Treaty:

(i) to remove or alter any electronic rights management infor-

mation without authority;

(ii) to distribute, import for distribution, broadcast, communi-
cate or make available to the public, without authority,
performance, copies of fixed performances or phonograms
knowing that electronic rights management information
has been removed or altered without authority.

the performer,

information which identifies

As used in this Article, ‘rights management information’
2.
means
the
performance of the performer, the producer of the phonogram,
the phonogram, the owner of any right in the performance or
phonogram, or information about the terms and conditions of
use of the performance or phonogram, and any numbers or
codes that represent such information, when any of these items
of information is attached to a copy of a fixed performance or
a phonogram or appears in connection with the communi-

Article 20

Formalities

The enjoyment and exercise of the rights provided for in this
Treaty shall not be subject to any formality.

Article 21

Reservations

Subject to the provisions of Article 15(3), no reservations to
this Treaty shall be permitted.

Article 22

Application in time

1.
Contracting Parties shall apply the provisions of Article
18 of the Berne Convention, mutatis mutandis, to the rights of
performers and producers of phonograms provided for in this
Treaty.

2.
Notwithstanding paragraph 1, a Contracting party may
limit the application of Article 5 of this Treaty to performances
which occurred after the entry into force of this Treaty for that
Party.

Article 23

Provisions on enforcement of rights

Contracting Parties undertake to adopt,

1.
in accordance
with their legal systems, the measures necessary to ensure the
application of this Treaty.

2.
Contracting Parties shall ensure that enforcement proced-
ures are available under their law so as to permit effective
action against any act of infringement of rights covered by this
infringe-
including expeditions remedies to prevent
Treaty,
ments and remedies which constitute a deterrent to further
infringements.

CHAPTER V

ADMINISTRATIVE AND FINAL CLAUSES

Article 24

Assembly

1. (a) The Contracting Parties shall have an Assembly.

(b) Each Contracting Party shall be represented by one dele-
gate who may be assisted by alternate delegates, advisors
and experts.

L 89/20

EN

Official Journal of the European Communities

11.4.2000

(c) The expenses of each delegation shall be borne by the
Contracting Party that has appointed the delegation. The
Assembly may ask WIPO to grant financial assistance to
facilitate the participation of delegations of Contracting
Parties that are regarded as developing countries in
conformity with the established practice of the General
Assembly of the United Nations or that are countries in
transition to a market economy.

2. (a) The Assembly shall deal with matters concerning the
maintenance and development of this Treaty and the
application and operation of this Treaty.

(b) The Assembly shall perform the function allocated to it
the admission of
under Article 26(2)
certain intergovernmental organisations to become party
to this Treaty.

in respect of

(c) The Assembly shall decide the convocation of any diplo-
matic conference for the revision of this Treaty and give
the necessary instructions to the Director General of
WIPO for the preparation of such diplomatic confer-
ence.

3. (a) Each Contracting Party that is a State shall have one vote

and shall vote only in its own name.

(b) Any Contracting Party that

is an intergovernmental
organisation may participate in the vote, in place of its
Member States, with a number of votes equal to the
number of its Member States which are party to this
Treaty. No such intergovernmental organisation shall
participate in the vote if any one of its Member States
exercises its right to vote and vice versa.

The European Community, having made the Declaration
3.
referred to in the preceding paragraph in the Diplomatic
Conference that has adopted this Treaty, may become Party to
this Treaty.

Article 27

Rights and obligations under the Treaty

Subject to any specific provisions to the contrary in this Treaty,
each Contracting Party shall enjoy all of the rights and assume
all of the obligations under this Treaty.

Article 28

Signature of the Treaty

This Treaty shall be open for signature until December 31,
1997, by any Member State of WIPO and by the European
Community.

Article 29

Entry into force of the Treaty

This Treaty shall enter into force three months after 30 instru-
ments of ratification or accession by States have been deposited
with the Director-General of WIPO.

Article 30

4.
The Assembly shall meet in ordinary session once every
two years upon convocation by the Director-General of WIPO.

Effective date of becoming Party to the Treaty

The Assembly shall establish its own rules of procedure,
5.
including the convocation of extraordinary sessions,
the
requirements of a quorum and, subject to the provisions of this
Treaty, the required majority for various kinds of decisions.

Article 25

International Bureau

The International Bureau of WIPO shall perform the adminis-
trative tasks concerning the Treaty.

Article 26

Eligibility for becoming Party to the Treaty

Any Member State of WIPO may become Party to this

1.
Treaty.

2.
The Assembly may decide to admit any intergovern-
mental organisation to become Party to this Treaty which
declares that it is competent in respect of, and has its own
legislation binding on all its Member States on, matters covered
by this Treaty and that it has been duly authorised, in accord-
ance with its internal procedures, to become Party to this
Treaty.

This Treaty shall bind:

(i) the 30 States referred to in Article 29, from the date on

which this Treaty has entered into force;

(ii) each other State from the expiration of three months from
the date on which the State has deposited its instrument
with the Director-General of WIPO;

(iii) the European Community, from the expiration of three
months after the deposit of its instrument of ratification or
accession if such instrument has been deposited after the
entry into force of this Treaty according to Article 29, or,
three months after the entry into force of this Treaty if
such instrument has been deposited before the entry into
force of this Treaty;

(iv) any other intergovernmental organisation that is admitted
to become Party to this Treaty, from the expiration of
three months after the deposit of its instrument of acces-
sion.

Article 31

Denunciation of the Treaty

This Treaty may be denounced by any Contracting Party by
notification addressed to the Director-General of WIPO. Any
denunciation shall take effect one year from the date on which
the Director-General of WIPO received the notification.

11.4.2000

EN

Official Journal of the European Communities

L 89/21

Article 32

Languages of the Treaty

This Treaty is signed in a single original

1.
in English,
Arabic, Chinese, French, Russian and Spanish languages, the
versions in all these languages being equally authentic.

2.
An official text in any language other than those referred
to in paragraph 1 shall be established by the Director-General
of WIPO on the request of an interested party, after consulta-
tion with all the interested parties. For the purposes of this

paragraph, ‘interested party’ means any Member State of WIPO
whose official language, or one of whose official languages, is
involved and the European Community, and any other inter-
governmental organisation that may become Party to this
Treaty,

languages is involved.

if one of its official

Article 33

Depositary

The Director-General of WIPO is the depositary of this Treaty.

L 89/22

EN

Official Journal of the European Communities

11.4.2000

Agreed statements

Concerning Article 1(2)

It is understood that Article 1(2) clarifies the relationship between rights in phonograms under this Treaty
and copyright in works embodied in the phonograms. In cases where authorisation is needed from both the
author of a work embodied in the phonogram and a performer or producer owning rights in the
phonogram, the need for the authorisation of the author does not cease to exist because the authorisation
of the performer or producer is also required, and vice versa.

It is further understood that nothing in article 1(2) precludes a Contracting Party from providing exclusive
rights to a performer or producer of phonograms beyond those required to be provided under this Treaty.

Concerning Article 2(b)

It is understood that the definition of phonogram provided in Article 2(b) does not suggest that rights in
the phonogram are in any way affected through their incorporation into a cinematographic or other
audiovisual work.

Concerning Articles 2(e), 8, 9, 12 and 13

As used in these Articles, the expressions ‘copies’ and ‘original and copies’ being subject to the right of
distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put
into circulation as tangible objects.

Concerning Article 3(2)

For the application of Article 3(2), it is understood that fixation means the finalisation of the master tape
(‘bande-mère’).

Concerning Article 3

It is understood that the reference in Articles 5(a) and 16(a)(iv) of the Rome Convention to ‘national of
another Contracting state’ will, when applied to this Treaty, mean,
in regard to an intergovernmental
organisation that is a Contracting Party to this Treaty, a national of one of the countries that is a member
of that organisation.

Concerning Articles 7, 11 and 16

The reproduction right, as set out in Articles 7 and 11, and the exceptions permitted thereunder through
Article 16, fully apply in the digital environment, in particular to the use of performances and phonograms
in digital form. It is understood that the storage of a protected performance or phonogram in digital form
in an electronic medium constitutes a reproduction within the meaning of these Articles.

Concerning Article 15

It is understood that Article 15 does not represent a complete resolution of the level of rights of
broadcasting and communication to the public that should be enjoyed by performers and phonogram
producers in the digital age. Delegations were unable to achieve consensus on differing proposals for
aspects of exclusivity to be provided in certain circumstances or for rights to be provided without the
possibility of reservations, and have therefore left the issue so future resolution.

Concerning Article 15

It is understood that Article 15 does not prevent the granting of the right conferred by this Article to
performers of folklore and producers of phonograms recording folklore where such phonograms have not
been published for commercial gain.

11.4.2000

EN

Official Journal of the European Communities

L 89/23

Concerning Article 16

The agreed statement concerning Article 10 (on limitations and exceptions of the WIPO Copyright Treaty is
applicable mutatis mutandis also to Article 16 (on limitations and exceptions) of the WIPO Performances
and Phonograms Treaty.

Concerning Article 19

The agreed statement concerning Article 12 (on obligations concerning rights management information) of
the WIPO Copyright Treaty is applicable mutatis mutandis also to Article 19 (on obligations concerning
rights management information) of the WIPO Performance and Phonograms Treaty.