Proposal for a Council Decision on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty
Date: 1998-04-24
Institutions: European Commission
Subjects: World Intellectual Property Organisation, broadcasting, copyright, literary and artistic property, new technology

•A-'«'•0: 

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* 

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 24.04.1998 
COMQ998) 249 final 

98/0141 (AVC) 

Proposal  for  a Council  decision  on the  approval, 
on  behalf  of the  European  Community,  of the WIPO Copyright  Treaty 
and  the  WIPO  Performances  and  Phonograms  Treaty 

« 

(presented by the Commission) 

II. 

1 

Explanatory  memorandum 

On 20 December  1996 the delegations taking part in the Diplomatic Conference  on  issues 
relating  to  copyright  and  neighbouring  rights  held  by  the  World  Intellectual  Property 
Organisation  (WIPO)  in  Geneva  adopted  two  treaties  relating  to  intellectual  property. 
The  first,  the  WIPO  Copyright  Treaty  (WCT),  deals  with  copyright;  the  second,  the 
WIPO Performances  and Phonograms Treaty, deals with neighbouring rights. 

These  Treaties  represent  a  historic  advance  in  the  international  protection  of  copyright 
and  neighbouring 
the  Berne  and 
Rome Conventions, which had not been revised since  1971 and  1961 respectively. 

rights  and  a  substantial 

improvement  on 

The Treaties1  provisions cover the exploitation of works both by traditional  means and  by 
means  of  new  technologies.  They  are  of  particular  importance  in  the  latter  case,  this 
being  the  first  time  that  international  treaties  have  dealt  with  the  opportunities  and  risks 
thrown  up  by  new  technologies  and  put  forward  appropriate  solutions  before  such  risks 
arise.  This  ex ante  approach  confirms  the  necessity  and  the  importance  of  identifying 
global  solutions  to situations  which will  not  be confined  to the  national  sphere  for  much 
longer. 

This  applies  in  particular  to  the  right  of  reproduction,  which  has  been  the  subject  of 
vigorous debate during  the Conference  and is included  in the Treaties. Although  the  latter 
do  not  contain  any  specific  provisions  on  temporary  reproductions  of  works  or 
performances,  the  final  declarations  adopted  by  the  Conference  confirm  that,  even  in  a 
digital  environment,  temporary  reproductions  of  works  remain  subject  to  the  test  of 
prejudice  to  economic  interests  provided  for  by  Article  9 of the  Berne  Convention.  This 
clarification..makes  a  major  contribution  to  the  ongoing  discussion  on  the  operation  of 
interactive  services  in the information  society. 

At the same  time, the Treaties follow the traditional  approach  of international  agreements 
in  the  intellectual  property  field  in  establishing  balanced  protection,  which  takes  into 
consideration  the  rights  and  interests  at  stake  and  allows  countries  on  the  verge  of 
acceding  to  the  Treaties  the  necessary  flexibility  in  transposing  them  into  their  national 
legislation.  Together  with  the rules which the Commission  has recently  put  forward  in  its 
proposal  for  a Directive  on copyright and related  rights  in the Information  Society,1  these 
Treaties  will  therefore  help  to  provide  a  high  but  balanced  level  of  protection  for  the 
works  concerned,  while  allowing  the  general  public  access  to  material  available  via 
networks. 

Although  the  Conference  failed  to reach a consensus  on certain  matters, such  as  the  draft 
treaty  on  sui  generis  protection  for  databases  and  the  extension  of  the  protection 

Proposal  for  a  European  Parliament  and  Council  Directive  on  the harmonisation  of  certain  aspects  of 
copyright  and  related  rights  in the Information  Society: COM(97) 628  final,  10.12.97. 

-2 

provided  by  the  WPPT  for  audiovisual  performances,  the  WIPO  will  continue  its  work 
on  these  topics,  which  may  lead  to other  Diplomatic  Conferences  in the  very  near  future. 

Detailed  content 

More  specifically,  the  Copyright  Treaty  (WCT)  supplements  the  Berne  Convention  for 
the  Protection  of  Literary  and  Artistic  Works  and  adapts  it  to  the  digital  environment. 
Under  the  WCT,  authors  enjoy  legal  protection  if  their  work  is  distributed,  commercially 
rented  out,  communicated  to  the public  or made  available  to  the  public  via  networks,  and 
they  benefit  from  other  rights  enshrined  in  the  Berne  Convention.  In  addition,  the  W CT 
provides  specific  protection  for  software  and  databases.  It  also  contains  provisions  on 
technological  protection  measures  (such  as  the  circumvention  of  anti-copying  measures), 
rights  management  information  systems,  and the  enforcement  of  rights. 

The  Performances  and  Phonograms  Treaty  represents  a  major  advance  in  protection 
for  artists  and  producers  of  phonograms.  Thanks  to  the  new  Treaty,  they  now  enjoy 
exclusive  rights  in  the  following  areas:  copying,  distribution,  commercial  rental  and 
making 
their  performances  and  phonograms  available  to  the  public  via  networks. 
Artists/performers  and  producers  of  phonograms  also  have  a  right  of  remuneration  for 
broadcasting  and  any  other  means  of  communication  to  the  public  of  phonograms 
published  for  commercial  purposes.  Like  the  WCT,  this  Treaty  also  contains  provisions 
on  technological  measures,  rights  management  systems  and  the  enforcement  of  rights. 

The  Community,  represented  by  the  Commission,  has  taken  part  in  the  preparatory  work 
and  in  the  negotiations  at  the  Diplomatic  Conference,  on  the  basis  of  negotiating 
guidelines  approved  by  the  Council  in  1991,  1992  and  1996.  The  EU  M e m b er  States 
have  also  played  an  active  part  in  the  negotiations  leading  up  to  these  Treaties  and 
acknowledge  the  positive  results  achieved.  All  sectors  with  an  interest  in  this  area 
are  satisfied  with  the  outcome  of  the  negotiations  and  now  expect  the  Community  and 
its  Member  States  to  approve  the Treaties  promptly.  . 

Under  the  Treaties  (Article  17(3)  of  the  WCT  and  Article  26(3)  of  the  WPPT),  the 
E u r o p e an  Community  can  become  a  contracting  party;  the  Treaties  give  it  the  means 
to  play  an  active  role  in  the  bodies  which  are  to  be  established.  The  Council  decided  on 
2 June  1997  to  authorise  the  signing  of  the  Treaties,  subject  to  ratification,  on  behalf  of 
the  European  Community.  All  the  Member  States  and  the  European  Community  itself 
have  now  signed  both  Treaties. 

The  i m p o r t a n ce  of  European  Community  approval  of  the  Treaties 

terms,  approval  of  the  Treaties  by  the  Council  would  demonstrate 

In  political 
the 
importance  which  the  Community  attaches  to  intellectual  property  rights.  In  helping  to 
create  an  environment  favourable  to  the  Treaties,  the  Community  would  thus  lay  the 
foundations  for  widespread  participation,  in  accordance  with  the  wishes  and  economic 
interests  of  the  sectors  concerned  within  the  Community.  Moreover,  with  the  exception 
of  a  minor  amendment  concerning  the  starting  point  for  protection  of  the  rights  of 
producers  of  phonograms,  Community  legislation  in  the  areas  covered  by  the  Treaties  is 
compatible  with  their  principles. 

Community  approval  would  also  have  an  extremely  positive  effect  on  the  likelihood  of 
the  Treaties'  entering  into  force  quickly  since  this  will  entail  thirty  instruments  of 

-3 

ratification  or  accession.  A  number  of  delegations,  particularly  from  the  central  and 
eastern  European  countries  (CEECs), have already  made  it known  that their  accession  to 
the  Treaties  will  depend  on  that  of  the  Community  and  its Member  States.  This  implies 
that  any  delay  in  ratification  by  the  Community  and  its  Member  States  would  in  turn 
delay accession by those countries. 

The issue of  competence 

The  Community  often  has  sole  competence  in  areas  subject  to  harmonisation  at 
Community  level.  In  its  Opinion  1/94  of  15  November  1994  on  the  division  of 
responsibility  between  the  Community  and  the  Member  States  with  regard  to  the 
conclusion  of  the  WTO  Agreement  and  its  annexes,  the  Court  of  Justice  confirmed  the 
application  in the intellectual  property field of  the judgment  on the European  Agreement 
concerning  the work of crews of vehicles engaged  in international  road transport  (AETR) 
of 31 March  1971 (Case 22/70). 

In that judgment,  the Court emphasises that the Community's  sole competence  as  regards 
the conclusion  of international  agreements arises  not only from  an express  conferment  by 
the  Treaty  but  may  also  flow  from  other  Treaty  provisions  and  acts  adopted  pursuant  to 
those provisions  by the Community  institutions. The Court is of the opinion that,  in so  far 
as  Community  rules  are  adopted  in  order  to  satisfy  the  goals  of  the  Treaty,  the 
Member  States  cannot  undertake  obligations  outside  the  framework  of  Community 
institutions  which might affect  those rules or alter their scope. 

However,  this  conclusion  needs  to  be  clarified  in  one  respect  in the  light  of  the  Court's 
Opinion  2/91  of  19  March  1993  on  ILO  Convention  No  170.  Having  noted  that  this 
Convention  falls  within the Community's  remit, the Court argued  in its Opinion  that  such 
competence  cannot  be of an exclusive nature because the Community  provisions  adopted 
in this regard  contained  minimum  requirements. 

Over  the  last  few  years,  the  Community  has  adopted  in  the  areas  covered  by  the  two 
Treaties  a  series  of  directives  establishing  a  regulatory  framework  within  which 
practitioners  have  been  able  to  take  advantage  of  the  size  of  the  single  market  while 
enjoying  a high  level of protection  for  their works.  However,  this harmonisation  exercise 
has  applied  only  to  certain  aspects  of  intellectual  property,  and  the  Member  States  have 
in many cases  been free  to provide for higher levels of protection. 

Moreover,  as  stated  in  the  Commission  communication  on  the  follow-up 
to  the 
Green  Paper  on  copyright,  certain  areas  covered  by  the Treaties  are  currently  the  subject 
of a proposal  for  harmonisation at Community  level.2 

It  follows  that  the  Community  does not have sole competence  in all  the areas  covered  by 
the  Treaties;  rather,  responsibility  is  shared.  Member  States  can  thus  approve  those 
aspects  of the  Treaties  which  relate to their area  of  competence,  while  the  Community  is 
the  only  party  able  to  approve  aspects which  have  been  harmonised  or are  in  the  process 
of  harmonisation.  In  this  situation,  it  would  be  expedient - in  order  to  avoid  any 
ambiguity  in  the  division  of  responsibilities  - to  stipulate  that  the  instrument  of  approval 

See  footnote 

-  4-

on  behalf  of  the  Community  can be deposited,  along  with the  instruments  of  ratification 
or accession  of  the  Member  States, as of the  moment  the  Council  adopts  thé  provisions 
amending and/or incorporating  existing Community  legislation. 

Legal  bases 

The  first  sentence  of  Article  228(2)  of  the  EC  Treaty  states  that  agreements  are  to  be 
concluded  by  the  Council,  acting  by  a  qualified  majority  on  a  proposal  from  the 
Commission.  Article  228(3)  states  that agreements  are to be concluded  after  consulting 
Parliament.  In  the  present  instance,  since  an  amendment  to  existing  Community  rules 
will  be required  following  approval  of the Treaties, consultation  of Parliament  must  take 
the  form  of  the  assent  procedure  in accordance  with  the  second  subparagraph  of  Article 
228(3).  Articles  57(2), 66 and  100a, which constitute  the legal  bases  for  the  Community 
harmonisation  that has taken place, are also applicable. 

- 

^ 

Proposal  for a Council  decision  on the approval, 
on behalf of the European  Community,  of the WIPO Copyright  Treaty 
and  the WIPO Performances  and Phonograms Treaty 

The Council  of the European  Union, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Articles  57(2),  66  and  100a  thereof,  taken  in  conjunction  with  the  first  sentence  of 
Article 228(2) and the second subparagraph of Article 228(3), 

Having regard to the proposal  from  the Commission, 

Having regard to the assent of the European  Parliament, 

Having  regard  to  the  Copyright  Treaty  and  the  Performances  and  Phonograms  Treaty 
adopted  in  Geneva  on  20  December  1996  under  the  auspices  of  the  World  Intellectual 
Property  Organisation, 

Whereas, as to substance, these Treaties, together  with the rules recently  proposed  by.the 
Commission  in  its  proposal  for  a  Directive  on  copyright  and  related  rights  in  the 
Information  Society,  will  help  to ensure  a  balanced  level  of protection  for  works,  while 
allowing the public access to material available via networks; 

in  accordance  with 

the  Court  of  Justice  case-law 

Whereas, 
the 
European Agreement  concerning  the  work  of  crews  of  vehicles  engaged  in  international 
road 
transport  (AETR),  whenever  the  Community  adopts  provisions  establishing 
common  rules  in  one  form  or another  in order  to  implement  a common  policy  provided 
for  by  the  Treaty,  the  Member  States  no  longer  have  the  right,  either  individually  or 
collectively,  to enter  into obligations  with third  countries that affect  those  rules;  whereas, 
as  and when  such common  rules are established,  the Community  alone  is in a position  to 
undertake  and  perform,  with  effect  for  the  entire  field  of  application  of  the  Community 
legal order, commitments  entered  into with third countries; 

relating 

to 

WTiereas  the  subject-matter  of  the  Treaties  falls  to  a  large  extent  within  the  scope  of 
existing  Community  directives  in this field; 

Whereas  it follows  that the approval  of the above-mentioned  Treaties  is a matter  for  both 
the Community  and  its Member States; 

Whereas 
European  Community; 

the  Treaties 

should 

therefore 

be 

approved 

on  behalf 

of 

the 

Having  already  signed  the  said  Treaties,  subject  to  ratification,  on  behalf  of  the 
European  Community; 

-  é 

HAS DECIDED AS FOLLOWS: 

Article 1 

1.  The  WIPO  Copyright  Treaty  (WCT) 
European  Community. 

is  hereby  approved  on  behalf  of 

the 

2.  The  WIPO  Performances  and  Phonograms  Treaty  (WPPT)  is  hereby  approved  on 
behalf of the European  Community. 

3. The texts of the Treaties are attached to this  Decision. 

Article 2 

The  President  of  the  Council  is  hereby  authorised  to  deposit  the  instruments  of 
ratification  with  the  Director  General  of  the  World  Intellectual  Property  Organisation  as 
of  the date  on  which  the Council  adopts  the necessary  measures  to adapt  and  incorporate 
the existing  Community  provisions. 

Article  3 

1.  The  Commission  is  hereby  authorised  to  represent  the  European  Community  at  the 
meetings  of  the  Assemblies  referred  to  in  the  Treaties  and  to  negotiate  on  its  behalf  on 
issues which  fall  within the remit of the Assemblies. 

2.  The position  of the European  Community  shall  be determined  by the Commission  and 
the  Member  States  within  the  competent  Council  working  party  or  at  ad  hoc  meetings 
held  in  the  context  of  work  under  the  auspices  of  the  World  Intellectual  Property 
Organisation. 

Done at Brussels  on .... 

-  ? 

WIPO  Copyright  Treaty  (WCT) (1996)' 

TABLE OF CONTENTS (continued) 

Article 15: 

Assembly 

Article 16: 

Article 17: 

Article  18: 

Article 19: 

Article 20: 

Article 21: 

Article 22: 

Article 23: 

Article 24: 

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 

No Reservations to the Treaty 

Denunciation of the Treaty 

Languages of the Treaty 

Article 25: 

Depositary 

TABLE OF CONTENTS 

Preamble 

Article  1: 

Relation to the Beme Convention 

Article  2: 

Scope of Copyright Protection 

Article  3: 

Application of Articles 2 to 6 of the Berne 

Article  4: 

Article  5: 

Article  6: 

Article  7: 

Article  8: 

Article  9: 

09 

^ 

Convention 

Computer Programs 

Compilations of Data (Databases) 

Right of Distribution 

Right of Rental 

Right of Communication  to the Public 

Duration of the Protection of Photographic  Works 

Article 10: 

Limitations and Exceptions 

Article 11: 

Article 12 

Obligations concerning Technological  Measures 

Obligations concerning Rights Management 

Information 

Article 13: 

Application  in Time 

Article 14 

Provisions on Enforcement  of Rights 

This Treaty was adopted  by  the  W]PO Diplomatic  Conference  on  Certain  Copyright 

and Neighboring Rights Questions in Geneva, on December 20, 1996 

WIPO Copyright Treaty (WCT) (1996) 

Preamble 

The Contracting Parties, 

Desiring to develop and maintain the protection of the rights of authors 
in their  literary and artistic  works  in a manner as effective  and  uniform 
as possible, 

Recognizing the  need  to  introduce  new  international  rules  and  clarify 
the  interpretation  of certain  existing  rules  in order to provide  adequate 
solutions  to the questions  raised  by new economic, social, cultural  and 
technological  developments, 

Recognizing the profound  impact  of the development  and  convergence 
of information  and communication  technologies on the creation and use 
of literary and artistic works, 

Emphasizing the outstanding  significance  of copyright  protection  as an 
incentive for literary and artistic creation, 

Recognizing  the  need  to  maintain  a  balance  between  the  rights  of 
authors  and  the  larger  public  interest,  particularly  education,  research 
and access to information,  as reflected  in the Berne Convention, 

Have agreed as follows: 

; 
A 

' 

WIPO Copyright  Treaty (WCT)  (1996) 

WIPO Copyright  Treaty (WCT) (1996) 

Article 1 

Article  3 

Relation  to  the  Berne  Convention 

Application  of  Articles  2 to 6 of  the  Berne  Convention 

(1)  This  Treaty  is  a  special  agreement  within  the  meaning  of 
Article  20  of  the  Berne  Convention  for  the  Protection  of  Literary  and 
Artistic  Works,  as  regards  Contracting  Parties  that  are  countries  of  the 
Union  established  by  that  Convention.  This  Treaty  shall  not  have  any 
connection  with  treaties  other  than  the  Berne  Convention,  nor  shall  it 
prejudice  any rights  and  obligations  under  any other  treaties. 

(2)  Nothing 

existing 
obligations  that  Contracting  Parties  have  to  each  other  under  the  Berne 
Convention  for  the Protection  of Literary  and  Artistic  Works. 

shall  derogate 

this  Treaty 

from 

in 

(3)  Hereinafter,  "Berne  Convention"  shall  refer  to  the  Paris  Act 
of July 24,  1971, of the  Berne  Convention  for  the  Protection  of  Literary 
and Artistic  Works. 

(4)  Contracting  Parties shall  comply  with  Articles  1 to 21  and  the 

Appendix of the  Berne  Convention. 

0 

Article 2 

Scope  of  Copyright  Protection 

Copyright  protection  extends  to  expressions  and  not  to  ideas, 

procedures,  methods  of operation  or  mathematical  concepts  as  such. 

1 
Agreed  statement  concerning  Article  1(4):  The  reproduction  right,  as  set  out  in 
Article 9 of  the  Berne  Convention,  and  the  exceptions  permitted  thereunder, fully  apply  in 
It  is  understood 
the digital environment,  in particular  to  the  use  of  works  in digital form. 
that  the storage  of  a protected  work  in  digital form  in an  electronic  medium  constitutes  a 
reproduction within the meaning  of Article  9 of the Berne  Convention. 

Contracting  Parties  shall  apply  mutatis  mutandis  the  provisions  of 
Articles  2  to  6  of  the  Berne  Convention  in  respect  of  the  protection 
provided  for  in this  Treaty.2 

Article 4 

Computer  Programs 

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." 

Agreed  statement  concerning  Article  3:  It is understood  that, in applying  Article  3 of 
this  Treaty, the expression  "country  of the  Union"  in Articles  2 to 6 of the Berne  Convention 
will he read as  if it were a reference  to a Contracting  Party to this  Treaty, in the  application 
of  those  Berne  Articles  in  respect  of  protection  provided  for  in  this  Treaty 
It  is  also 
understood  that  the  expression  "country  outside  the  Union " in those  Articles  in  the  Berne 
Convention  will,  in  the same  circumstances,  be  read  as  if  it  were  a  reference  to  a  country 
that  is not  a  Contracting  Party  to  this  Treaty, and  that  "this  Convention "  in Articles  2(8), 
2bis(2),  3, 4 and  5 of the Berne Convention  will be read as if it were a reference  to the Berne 
Convention  and  this  Treaty.  Finally,  it  is understood  that  a  reference  in Articles  3  to  6 of 
the  Berne  Convention  to a  "national  of  one  of the countries  of  the  Union"  will, when these 
Articles  are  applied  to  this  Treaty,  mean,  in  regard  to  an  intergovernmental  organization 
that  is a Contracting  Party  to  this  Treaty, a national  of  one  of  the countries  that  is member 
of that  organization. 
3 
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. 

WIPO Copyright  Treaty (WCT)  (1996) 

WIPO Copyright  Treaty  (WCT)  (1996) 

Article 5 

Compilations  of Data  (Databases) 

Compilations  of  data  or  other  material,  in  any  form,  which  by 
reason  of  the  selection  or  arrangement  of  their  contents  constitute 
intellectual  creations,  are  protected  as  such.  This  protection  does  not 
extend  to the data or the material  itself  and  is without  prejudice  to any 
the 
copyright  subsisting 
compilation. 

the  data  or  material  contained 

in 

in 

Article 6 

Right of Distribution 

the 
(1)  Authors  of  literary  and  artistic  works  shall  enjoy 
exclusive right of authorizing the making available  to the  public  of the 
original  and  copies  of  their  works  through  sale  or  other  transfer  of 
ownership. 

(2)  Nothing in this Treaty shall  affect  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  copy  of  the  work  with  the 
authorization of the author. 

Article 7 

Right  of Rental 

(1)  Authors  of 

(i)  computer programs; 

(ii)  cinematographic works;  and 

(iii)  works  embodied  in  phonograms,  as  determined  in  the 

national  law of Contracting Parties, 

shall  enjoy  the  exclusive  right  of  authorizing  commercial  rental  to the 
public of the originals or copies of their works. 

(2)  Paragraph (1) shall not apply 

(i) 

in  the  case  of  computer  programs,  where  the  program 

itself is not the essential object  of the rental;  and 

(ii) 

in  the  case  of  cinematographic  works,  unless  such 
commercial  rental  has  led  to  widespread  copying  of  such  works 
materially  impairing the exclusive right of reproduction. 

(3)  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  authors  for  the  rental  of  copies  of  their  works 
embodied  in  phonograms  may  maintain  that  system  provided  that  the 
commercial  rental  of works embodied  in phonograms  is not giving rise 
to  the  material  impairment  of  the  exclusive  right  of  reproduction  of 
authors. ' 

4 
Agreed  statement  concerning  Article  5:  The scope  of protection for  compilations  of 
data  (databases) under Article  5 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. 
i 
Agreed  statement  concerning  Articles  6  and  7:  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. 

6 
Agreed  statement  concerning  Articles  6  and  7:  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. 
7 
Agreed  statement  concerning  Article  7:  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  that  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 

WIPO Copyright Treaty (WCT) (1996) 

WIPO  Copyright  Treaty  (WCT)  (1996) 

Article 8 

Right of Communication  to the Public 

to 

Without  prejudice 

the  provisions  of  Articles 

ll(l)(ii), 
1U>«(1)(1)  and  (ii),  \\ter(\)(\\),  14(l)(ii)  and  \4bis(\)  of  the  Berne 
Convention,  authors  of  literary  and  artistic  works  shall  enjoy  the 
exclusive right of authorizing any communication  to the public  of their 
works, by wire or wireless means, including the making available to the 
public  of  their  works  in  such  a  way  that  members  of  the  public  may 
access these works  from  a place  and  at  a time  individually  chosen  by 
them.8 

Article 9 

Duration of the Protection of Photographic  Works 

In respect of photographic works, the Contracting Parties shall not 

apply the provisions of Article 7(4) of the Berne Convention. 

1° 
\ 

Article 10 

Limitations and Exceptions 

(1)  Contracting  Parties may, in their  national  legislation,  provide 
for  limitations  of  or  exceptions  to  the  rights  granted  to  authors  of 
literary and artistic works under this Treaty  in 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. 

Agreed  statement  concerning  Article  8: 

* 
physical  facilities 
for  enabling  or  making  a  communication 
communication  within  the  meaning  of  this  Treaty  or  the  Berne  Convention 
understood 
in  Article  8  precludes 
Article 

that  the  mere  provision  of 
to 
further 
applying 

does  not  in  itself  amount 

It  is  understood 

a  Contracting 

that  nothing 

llbis(2). 

Party 

It  is 

from 

[Article  10, continued] 

(2)  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 11 

Obligations concerning Technological  Measures 

legal  remedies  against 

Contracting  Parties  shall  provide  adequate  legal  protection  and 
effective 
the  circumvention  of  effective 
technological  measures  that  are used  by authors  in connection  with the 
exercise  of their  rights  under  this  Treaty  or  the  Berne  Convention  and 
that  restrict  acts, in respect  of their  works, which  are not authorized  by 
the authors concerned  or permitted  by law. 

Agreed 

concerning 

statement 
Article  10  permit  Contracting  Parlies 
digital  environment 
considered  acceptable 
understood 
appropriate 

limitations 
under 
to  permit  Contracting  Parties 
in  the  digital  network 

environment 

10: 

Article 
that 
to  carry  forward  and  appropriately 

It  is  understood 

and  exceptions 
the  Berne  Convention 

in  their  national 
Similarly, 

the  provisions 
into 

of 
the 
extend 
laws  which  have  been 
should  be 
that  are 

these  provisions 

to  devise  new  exceptions  and  limitations 

It  is  also  understood 

that  Article  10(2)  neither 

reduces  nor  extends 

the  scope  of 

applicability 

of  the  limitations  and  exceptions  permitted  by  the  Berne  Convention. 

12 

13 

W1P0 Copyright Treaty  (WCT) (1996) 

WIPO Copyright  Treaty  (WCT)  (1996) 

Article 12 

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  or  the 
Berne Convention: 

(i)  to  remove  or  alter  any  electronic  rights  management 

information  without authority; 

(ii)  to  distribute, 

for  distribution,  broadcast  or 
communicate to the public, without authority, works or copies of works 
knowing  that  electronic  rights  management  information  has  been 
removed or altered without authority. 

import 

(2)  As  used  in  this  Article,  "rights  management  information" 
means  information  which  identifies  the  work,  the  author  of  the  work, 
the owner of any right  in the work, or information  about  the terms and 
conditions of use of the work, and any numbers or codes that  represent 
such information,  when any of these items of information  is attached to 
a copy of a work or appears in connection  with the communication  of a 
work to the public.10 

) 

1 

Agreed  statement  concerning  Article  12: 

10 
It  is  understood  that  the  reference  to 
"infringement of  any  right  covered  by  this  Treaty  or  the  Berne  Convention"  includes  both 
exclusive rights and rights of remuneration. 

It is further  understood  that Contracting  Parties  will not rely  on this Article  to devise 
or implement rights  management  systems  that yvould have  the effect  of  imposing  formalities 
which  are  not permitted  under  the  Berne  Convention  or  this  Treaty,  prohibiting  the  free 
movement of goods or impeding the enjoyment  of rights under this Treaty. 

Article  13 

Application  in Time 

Contracting Parties shall apply the provisions of Article  18 of the 

Berne Convention  to all protection  provided  for in this Treaty. 

Article 14 

Provisions on Enforcement  of Rights 

(1)  Contracting  Parties  undertake  to  adopt,  in  accordance  with 
their  legal  systems, the measures  necessary  to ensure  the application  of 
this Treaty. 

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

Article 15 

Assembly 

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

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

(c)  The  expenses  of  each  delegation  shall  be  borne  by  the 
Contracting  Party  that  has  appointed  the  delegation.  The  Assembly 
may  ask  the  World  Intellectual  Property  Organization  (hereinafter 
referred  to  as  "WIPO")  to  grant  financial  assistance  to  facilitate  the 
participation  of delegations of Contracting Parties that are regarded as 

14 

15 

WIPO Copyright  Treaty (WCT) (1996) 

WIPO Copyright  Treaty (WCT) (1996) 

[Article  15(1 )(c), continued! 

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  certain 

under  Article  17(2) 
intergovernmental organizations to become party to this Treaty. 

respect  of 

in 

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

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

and shall vote only in its own name. 

that 

(b)  Any  Contracting  Party 

intergovernmental 
organization  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  organization  shall 
participate in the vote if any one of its Member States exercises its right 
to vote and vice versa, 

is  an 

(4)  The Assembly shall meet in ordinary  session  once every two 

years upon convocation by the Director General of WIPO. 

(5)  The  Assembly  shall  establish  its  own  rules  of  procedure, 
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. 

-F 

Article 16 

International  Bureau 

The 

International  Bureau  of  WIPO 

shall  perform 

the 

administrative tasks concerning the Treaty. 

Article 17 

Eligibility  for  Becoming Party  to the Treaty 

(1)  Any  Member  State  of  WIPO  may  become  party  to  this 

Treaty. 

(2)  The  Assembly  may  decide  to  admit  any  intergovernmental 
organization  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  authorized,  in accordance  with  its internal  procedures, to become 
party to this Treaty. 

(3)  The  European  Community,  having  made  the  declaration 
referred  to  in  the  preceding  paragraph  in  the  Diplomatic  Conference 
that has adopted this Treaty, may become party to this Treaty. 

Article 18 

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. 

16 

17 

WtPO Copyright Treaty (WCT) (1996) 

WIPO Copyright Treaty (WCT) (1996) 

Article 19 

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 20 

Entry  into Force of the Treaty 

Article 22 

No Reservations  to the Treaty 

No reservation  to this Treaty shall be admitted. 

Article 23 

Denunciation  of the Treaty 

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

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. 

Article 21 

Effective  Date of Becoming Party  to the Treaty 

This Treaty shall bind: 

\ 

(i)  the 30 States referred  to in Article 20, 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  20,  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  organization  that  is  admitted  to 
become  party  to  this  Treaty,  from  the  expiration  of  three  months  after 
he deposit of its instrument of accession. 

Article 24 

Languages of the Treaty 

(1)  This  Treaty  is signed  in a single  original  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  consultation  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 intergovernmental  organization  that may become party to 
this Treaty, if one of its official  languages is involved. 

19 

WII'O Copyright Treaty (WCT) (1996) 

Article 25 

Depositary 

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

\ 

20 

WIPO Performances and Phonograms Treaty 
(WPPT) (1996)* 

TABLE OF CONTENTS 

Preamble 

CHAPTER 1:  GENERAL  PROVISIONS 

Article  1 

Relation to Other Conventions 

Article  2 

Definitions 

Article  3 

Beneficiaries  of Protection under this Treaty 

Article  4 

National Treatment 

CHAPTER  II: RIGHTS OF PERFORMERS 

Article  5:  Moral Rights of  Performers 

Article  6: 

Economic  Rights  of  Performers 

in  their  Unfixed 

Performances 

Article  7: 

Right of Reproduction 

Article  8: 

Right of Distribution 

Article  9: 

Right of Rental 

Article  10: 

Right of Making Available of Fixed  Performances 

This Treaty was adopted  by  the  WIPO Diplomatic  Conference  on  Certain  Copyright 

and Neighboring Rights Questions in Geneva, on December 20, 1996. 

TABLE OF CONTENTS (continued) 

TABLE OF CONTENTS (continued) 

CHAPTER III:  RIGHTS OF PRODUCERS OF PHONOGRAMS 

Article 27 

Rights and Obligations under the Treaty 

Article 28 

Signature of the Treaty 

Article 29 

Entry into Force of the Treaty 

Article 30 

Article 31 

Effective  Date of Becoming Party to the Treaty 

Denunciation of the Treaty 

Article 32 

Languages of the Treaty 

Article 33 

Depositary 

Article  11 : 

Right of Reproduction 

Article  12: 

Right of Distribution 

Article  13: 

Right of Rental 

Article  14: 

Right of Making Available of Phonograms 

CHAPTER IV:  COMMON  PROVISIONS 

Article  15: 

Right to Remuneration  for Broadcasting and 

Communication to the Public 

Article  16: 

Limitations and Exceptions 

Article  17: 

Term of Protection 

Article  18:  Obligations concerning Technological  Measures 

Article  19:  Obligations concerning Rights Management  Information 

\ 

Article 20: 

Formalities 

Article 21: 

Reservations 

Article 22: 

Application  in Time 

Article 23: 

Provisions on Enforcement  of Rights 

CHAPTER V: ADMINISTRATIVE AND FINAL CLAUSES 

Article 24 

Assembly 

Article 25 

International  Bureau 

Article 26 

Eligibility for Becoming Party to the Treaty 

WIPO Performances and Phonograms Treaty (WPPT) (1996) 

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, 

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

• 

Recognizing the  profound  impact  of the development  and  convergence 
of  information  and  communication  technologies  on  the  production  and 
use of performances  and phonograms, 

Recognizing  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: 

JQ 
• 

WIPO Performances  and Phonograms Treaty (WPPT) (1996) 

W1PO Performances  and  Phonograms  Treaty (WPPT)  (1996) 

CHAPTER I 
GENERAL PROVISIONS 

Article I 

Relation to Other Conventions 

in 

(1)  Nothing 

this  Treaty  shall  derogate 

from  existing 
obligations  that  Contracting  Parties  have  to  each  other  under  the 
International Convention  for the Protection of Performers,  Producers of 
Phonograms  and  Broadcasting  Organizations  done  in  Rome,  October 
26, 1961 (hereinafter  the "Rome Convention"). 

(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 provision 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. 

1 
Ko 
O 
I 

Article 2 

Definitions 

For the purposes of this Treaty: 

(a)  "performers"  are  actors,  singers,  musicians,  dancers,  and 
other  persons  who  act,  sing,  deliver,  declaim,  play  in,  interpret,  or 
otherwise perform  literary or artistic works or expressions of folklore; 

1 
Agreed statement  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  authorization  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 authorization  of the author  does  not cease  to exist  because  the 
authorization 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. 

iO 

[Article 2, continued] 

(b)  "phonogram"  means 

the  fixation  of  the  sounds  of  a 
performance  or of other sounds, or of a representation  of sounds, other 
than  in  the  form  of  a  fixation  incorporated  in  a  cinematographic  or 
other audiovisual  work;2 

(c)  "fixation"  means  the  embodiment  of  sounds,  or  of  the 
representations  thereof,  from  which  ihey can  be  perceived,  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  responsibility  for 
the first  fixation  of the sounds of a 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 rightholder, and provided  that copies are 
offered  to the public in reasonable quantity;' 

(1)  "broadcasting" means the transmission  by wireless  means  for 
public  reception  of  sounds  or  of  images  and  sounds  or  of  the 
representations 
is  also 
"broadcasting"; 
transmission  of  encrypted  signals  is  "broadcasting" 
where  the  means  for  decrypting  are  provided  to  the  public  by  the 
broadcasting organization or with its consent; 

transmission  by  satellite 

thereof; 

such 

Agreed  statement  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. 
5 
Agreed  statement  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 

WIPO Performances and Phonograms Treaty (WPPT) (1996) 

WIPO Performances and Phonograms Treaty (WPPT) (1996) 

[Article 2, continued] 

(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  performance  or  the 
sounds or the representations of sounds fixed in a phonogram.  For the 
purposes of Article  15, "communication  to the public" includes making 
the sounds or representations of sounds fixed in a phonogram audible to 
the public. 

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  phonograms  who 
are nationals of other Contracting Parties. 

(2)  The  nationals  of  other  Contracting  Parties  shall  be 
understood  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.4 

(3)  Any  Contracting  Party  availing  itself  of  the  possibilities 
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  Director  General  of 
the World Intellectual Property "Organization (WIPO).5 

Agreed  statement  concerning  Article  3(2):  For the application  of Article  3(2),  it is 

4 
understood that fixation  means the fmalizalion  of the master tape ("bande-mère "). 
5 
Agreed statement  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 organization  that  is a 
Contracting Party to  this Treaty, a national of one of the countries that is a member of that 
organization. 

12 

I 

\ 

Article 4 

National  Treatment 

(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. 

(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. 

CHAPTER  II 
RIGHTS OF  PERFORMERS 

Article 5 

Moral Rights of  Performers 

(1)  Independently  of  a  performer's  economic  rights,  and  even 
after  the transfer  of those rights, the performer  shall, as regards his live 
aural  performances  or  performances  fixed  in  phonograms,  have  the 
right  to  claim  to  be  identified  as  the  performer  of  his  performances, 
except  where  omission  is  dictated  by  the  manner  of  the  use  of  the 
performance,  and  to  object  to  any  distortion,  mutilation  or  other 
modification  of  his  performances  that  would  be  prejudicial  to  his 
reputation. 

13 

WIPO Performances and Phonograms Treaty (WPPT) (1996) 

WIPO Performances and Phonograms Treaty (WPPT) (1996) 

[Article 5, continued] 

(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  authorized  by  the  legislation  of  the  Contracting  Party 
where  protection  is  claimed.  However,  those  Contracting  Parties 
whose legislation, at the moment  of their ratification  of or accession  to 
this  Treaty,  does  not  provide  for  protection  after  the  death  of  the 
performer  of all  rights set out  in the  preceding  paragraph  may  provide 
that some of these rights will, after his death, cease to be maintained. 

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

Article 6 

\ 

N 
N 
I 

Economic Rights of Performers  in their  Unfixed  Performances 

Performers  shall  enjoy  the  exclusive  right  of  authorizing,  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. 

Article 7 

Right of  Reproduction 

Performers  shall enjoy  the exclusive right of authorizing the direct 
or  indirect  reproduction  of their  performances  fixed  in phonograms, in 
any manner or form. 

Article 8 

Right of Distribution 

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

(2)  Nothing in this Treaty shall affect  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 copy of the fixed performance  with the 
authorization of the  performer. 

Agreed  statement  concerning  Articles  7,  11 and  16:  The reproduction  right, as  set 
out  in Articles  7 and  II,  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. 

Agreed  statement  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. 

14 

15 

WIPO  Performances  and  Phonograms  Treaty  (WPPT)  (1996) 

WIPO Performances  and  Phonograms Treaty (WPPT) (1996) 

Article 9 

Right  of Rental 

(1)  Performers  shall  enjoy  the  exclusive  right  of  authorizing  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, 
authorization by the  performer. 

(2)  Notwithstanding 

the  provisions  of  paragraph 

(1),  a 
Contracting Party that, on April  15,1994, had and continues to have in 
force a system of equitable remuneration  of performers  for the rental of 
copies  of their  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.8 

e 

Article 10 

Right of Making Available of Fixed  Performances 

Performers  shall  enjoy  the  exclusive  right  of  authorizing  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  and  at  a  time  individually 
chosen by them. 

1 
Agreed  statement  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. 

•16 

CHAPTER  III 
RIGHTS  OF PRODUCERS OF  PHONOGRAMS 

Article 11 

Right of  Reproduction 

Producers  of  phonograms  shall  enjoy  the  exclusive  right  of 
authorizing  the  direct  or  indirect  reproduction  of  their  phonograms,  in 
any manner or form. 

Article 12 

Right of Distribution 

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

(2)  Nothing in this Treaty shall affect  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  copy  of  the  phonogram  with  the 
authorization  of the producer of the phonogram.10 

Agreed  statement  concerning  Articles  7, 11 and  16:  The reproduction  right, as  set 
out  in Articles  7 and  II,  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. 
Agreed  statement  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  ps tangible  objects. 

17 

W1P0 Performances  and  Phonograms Treaty (WPPT) (1996) 

WIPO Performances  and  Phonograms Treaty (WPPT) (1996) 

Article 13 

Right of Rental 

(1)  Producers  of  phonograms  shall  enjoy  the  exclusive  right  of 
authorizing  the  commercial  rental  to  the  public  of  the  original  and 
copies  of  their  phonograms,  even  after  distribution  of  them  by,  or 
pursuant to, authorization by the producer. 

CHAPTER  IV 
COMMON  PROVISIONS 

Article 15 

Right  to Remuneration  for  Broadcasting 
and  Communication  to the Public 

(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  producers  of  phonograms 
for the rental  of copies of their 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 
producers of phonograms.11 

Article 14 

Right of Making Available of  Phonograms 

$ 

Producers  of  phonograms  shall  enjoy  the  exclusive  right  of 
authorizing the making available  to the  public  of their  phonograms, 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. 

" 
Agreed  statement  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 

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

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

WIPO  Performances  and  Phonog/arns  Ircaly  (Wpp'f ; (\<)<)(,) 

WIPO  Performances  and  Phonograms  Treaty ( W I T T)  (19%) 

fArticle  15, continued] 

[Article  16, continued] 

(A)  For the purposes of this Article, phonograms made available 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 

12.1.1 

purposes. 

(2)  Contracting  Parties  shall  confine  any 

limitations  of  or 
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. 

Article 16 

Limitations and Exceptions 

Article 17 

Term of Protection 

(1)  Contracting  Parties  may,  in  their  national  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. 

(1)  The term of protection  to be granted  to performers  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  performance  was  fixed  in  a 
phonogram. 

\ 

Agreed  statement  concerning  Article  15 

12 
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 to future  resolution. 
13 
Agreed  statement  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. 

20 

Agreed  statement  concerning  Article  16: 

14 
Agreed  statement  concernig  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. 
n 
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 
[The  text  of  the  agreed  statement  concerning 
Performances  and  Phonograms  Treaty. 
Article  10 of  the  WCT reads  as follows: 
"It  is understood  that  the provisions  of Article  10 
permit  Contracting  Parlies  to  carry  forward  and  appropriately  extend  into  the  digital 
environment  limitations  and  exceptions  in  their  national  laws  which  have  been  considered 
acceptable  under the Berne Convention.  Similarly,  these provisions  should  be understood  to 
permit  Contracting  Parties  to devise  new  exceptions  and  limitations  that  are appropriate  in 
the digital  network  environment.. 

"It  is  also  understood  that  Article  10(2)  neither  reduces  nor  extends  the  scope  of 

applicability  of the limitations  and exceptions permitted  by the Berne Convention  "] 

21 

WIPO Performances  and  Phonograms Treaty (WPPT) (1996) 

WIPO Performances  and  Phonograms Treaty (WPPT) (1996) 

[Article  17, continued] 

[Article  19(1), continued] 

(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  publication  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 

legal  remedies  against 

Contracting  Parties  shall  provide  adequate  legal  protection  and 
the  circumvention  of  effective 
effective 
technological  measures  that  are  used  by  performers  or  producers  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  authorized  by  the  performers  or  the 
producers of phonograms concerned or permitted by law. 

P 

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 

information  without authority; 

(ii) 

to  distribute, 

for  distribution,  broadcast, 
import 
communicate  or  make  available  to  the  public,  without  authority, 
performances,  copies  of  fixed  performances  or  phonograms  knowing 
that  electronic  rights  management  information  has  been  removed  or 
altered  without authority. 

(2)  As  used  in  this  Article,  "rights  management  information" 
means  information  which  identifies  the  performer,  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 
communication  or  making  available  of  a  fixed  performance  or  a 
phonogram  to the public.16 

Article 20 

Formalities 

The  enjoyment  and  exercise  of  the  rights,  provided  for  in  this 

Treaty shall not be subject  to any  formality. 

Agreed  statement  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  Performances  and  Phonograms 
Treaty.  [The  text  of  the  agreed  statement  concerning  Article  12  of  the  WCT  reads  as 
follows:  "It  is  understood  that  the  reference  to  infringement  of  any  right  covered  by  this 
Treaty or the Berne Convention  ' includes  both exclusive  rights and rights of  remuneration. 

"It  is further  understood  that  Contracting  Parties  will  not  rely  on  this  Article  to 
devise  or  implement  rights  management  systems  that  would  have  the  effect  of  imposing 
formalities  which  are  not permitted  under  the  Berne  Convention  or  this  Treaty,  prohibiting 
the free  movement  of goods  or impeding  the enjoyment  of rights  under this Treaty. "J 

22 

23 

WIPO Performances  ami Phonograms  treaty (WPPT) (1996) 

WIPO Performances  and  Phonograms Treaty (WPPT) (1996) 

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 

(1)  Contracting  Parties  undertake  to  adopt,  in  accordance  with 
their legal systems, the measures necessary  to ensure the application  of 
this Treaty. 

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

CHAPTER V 
ADMINISTRATIVE  AND FINAL  CLAUSES 

Article 24 

Assembly 

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

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

(c)  The  expenses  of  each  delegation  shall  be  borne  by  the 
Contracting  Party  that  has  appointed  the  delegation.  The  Assembly 
may  ask  WIPO 
the 
to  grant  financial  assistance 
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. 

to  facilitate 

(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  certain 

under  Article 26(2) 
intergovernmental  organizations to become party to this Treaty. 

respect  of 

in 

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

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

and shall vote only in its own name. 

24 

25 

WJPO Performances  and  Phonograms  Treaty (WPPT) (1996) 

WIPO Performances  and  Phonograms Treaty  (WPPT) (1996) 

[Article 24(3), continued] 

that 

(b)  Any  Contracting  Party 

intergovernmental 
organization  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  organization  shall 
participate in the vote if any one of its Member States exercises  its right 
to vote and vice versa. 

is  an 

(4)  The Assembly shall  meet  in ordinary  session  once  every two 

years upon convocation by the Director General of WIPO. 

(5)  The  Assembly  shall  establish  its  own  rules  of  procedure, 
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 

administrative tasks concerning the Treaty. 

Article 26 

Eligibility  for  Becoming Party  to the Treaty 

(1)  Any  Member  State  of  WIPO  may  become  party  to  this 

Treaty. 

(2)  The  Assembly  may  decide  to  admit  any  intergovernmental 
organization  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 authorized,  in accordance  with  its  internal  procedures,  to  become 
party to this Treaty. 

26 

[Article 26, continued] 

(3)  The  European  Community,  having  made  the  declaration 
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 instruments 
of  ratification  or  accession  by  States  have  been  deposited  with  the 
Director General of WIPO. 

27 

WIPO Performances  and  Phonograms Treaty (WPPT) (1996) 

WIPO Performances  and  Phonograms Treaty (WPPT) (1996) 

Article 30 

Effective  Date of Becoming  Party  to the 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  organization  that  is  admitted  to 
become party to this Treaty, from  the expiration  of three  months after  the 
deposit of its instrument of accession. 

\ 

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. 

Article 32 

Languages of the Treaty 

(1)  This Treaty  is signed  in a single  original  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  consultation  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 intergovernmental  organization  that may become party to 
this Treaty, if one of its official  languages is involved. 

Article 33 

Depositary 

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

28 

29 

ISSN 0254-1475 

COM(98) 249 final 

DOCUMENTS 

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10  06  15  02 

Catalogue  number  :  CB-C0-98-269-EN-C 

ISBN  92-78-35319-1 

Office  for  Official  Publications  of the European  Communities 

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