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# 52013PC0109

**Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the WIPO Treaty on Audiovisual Performances /\* COM/2013/0109 final - 2013/0065 (NLE) \*/**

  

EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

With this proposal for a Council Decision
the Commission seeks authorisation from the Council to sign, on behalf of the
European Union, the WIPO Treaty on Audiovisual Performances adopted in Beijing
on 24 June 2012 (hereinafter the "Beijing Treaty").

The Beijing Treaty establishes a set of new
international rules which aim at ensuring the adequate protection and
remuneration of audiovisual performers, i.e. performers such as actors,
musicians or dancers, whose performances are incorporated in an audiovisual
work (e.g. a film or a TV programme).

The Treaty is a significant step forward in
the international protection of neighbouring rights and the first multilateral
instrument adopted in this area since 1996. It delivers a long awaited update
of the protection of audiovisual performers at international level and
modernizes this protection by recognising performers' rights in the digital
environment. In doing so it fills a gap in the protection of performers' rights
that had been left open since 1996 when the WIPO Performances and Phonograms
Treaty (hereinafter WPPT) was adopted.

The WPPT, which the European Union acceded
to in 2000, provided for an international protection of the rights of authors
and certain holders of related rights that, for the first time, took into
account the economic and technological developments of the digital environment.
However, no agreement could be reached at that time to include in the scope of
these instruments the protection of performers with regard to their
performances fixed in audiovisual works (the WPPT only covers the rights of
performers in relation to their performances in phonograms).

A Diplomatic Conference was held in Geneva from 7 to 20 December 2000 but WIPO Members could not agree on the text of a new
Treaty. The failure of the 2000 Diplomatic Conference suspended the works for
more than ten years. In June 2011 the WIPO Standing Committee on Copyright and
Related Rights (22nd session) reached a provisional agreement on the main issue
remained unsolved in 2000, the provision on transfer of performers' rights to
producers of audiovisual works. Further to that the General Assembly of WIPO
decided, at its 40th session in October 2011, to reconvene the Diplomatic Conference
that had been suspended in 2000. The reconvened Diplomatic Conference took
place in Beijing from 20 to 26 June 2012 and led to the adoption of the Treaty
on 24 June 2012.

The Commission was authorised by the
Council to conduct negotiations in view of adoption of an instrument for the
protection of performers' rights in their audio-visual performances by a
Decision of 7 November 2000. On 18 June 2012 the Council updated the
negotiations directives attached to the Decision to take into account the changes
in the EU copyright acquis after 2000 (the adoption of the 2001/29
Directive on Copyright in the Information Society) and to acknowledge the
reconvention of the Diplomatic Conference in Beijing from 20 to 26 June 2012.

The Beijing Diplomatic Conference adopted
the Treaty on 24 June 2012.

The European Union signed the final act of
the Diplomatic Conference at the closing of the Diplomatic Conference. The
European Parliament was informed of the outcome of the Diplomatic Conference at
the meeting of the Committee on Legal Affairs on 9 July 2012.

2.           LEGAL ELEMENTS OF THE PROPOSAL

The European Union has played a very active
role in shaping the provisions of the Beijing Treaty, so as to ensure that
audiovisual performers enjoy a level of protection consistent with the EU acquis,
and that European audiovisual performers can benefit at international level
from the same level of protection they enjoy under EU legislation. Indeed, the
majority of issues covered by the Treaty are already harmonised at EU level.

Many of the provisions of the Beijing
Treaty are modelled upon the 1996 WPPT and by and large the two treaties follow
the same structure. The beneficiaries of the protection under the Beijing
Treaty are performers who are nationals of the signatories of the Treaty, or
who have their habitual residence in one of signatory countries.

The protection is granted on the basis of
national treatment which means that every country treats performers (nationals
of another country), with regard to the exclusive rights and the right to
equitable remuneration granted in the Treaty, in the same way as it treats its
own nationals. The scope of national treatment can be limited as regards
certain rights on the basis of the specific provisions of the Treaty.

The Treaty provides that independently of
economic rights, and even after the transfer of those rights, the performers
shall have certain moral rights as regards live performances or performances
fixed in audiovisual fixations.

As concerns economic rights, the Treaty
grants performers exclusive rights with respect to their unfixed and fixed
performances.

With regard to unfixed performances,
performers enjoy the right to authorise the broadcasting and communication to
the public of their unfixed performances as well as to authorise the fixation
of their unfixed performances.

With regard to performances fixed in
audiovisual fixations, performers enjoy the right to authorise their direct or
indirect reproduction, their distribution, and the commercial rental to the
public of the original and copies of the performances (even after authorising
their distribution).

Performers enjoy the exclusive right of
authorizing the making available to the public of their performances (e.g. the
on-line downloading of a film incorporating their performance). Finally the
Treaty grants performers the right to authorise the broadcasting and
communication to the public of their performances. Contracting Parties are
entitled to replace this right by a right to equitable remuneration or to
derogate from this right entirely.

As regards the transfer or rights,
Contracting Parties are given full flexibility to organise it. They may decide
for instance that, once a performer has consented to the fixation of a
performance, his exclusive rights are transferred to the producers, unless a
contract between a performer and a producer states differently. In any event,
the provision does not impose on Contracting Parties any obligation to provide
for an automatic transfer.

In line with the WPPT, the Beijing Treaty specifies
that national legislation may provide for the same kinds of limitations or
exceptions with regard to the protection of performers as it provides for in
connection with the protection of copyright in literary and artistic works, in
compliance with the so called "three step test". Similarly to the
WPPT, the new Treaty also requires Contracting Parties to provide adequate
legal protection and effective legal remedies against the circumvention of
technological protection measures used by performers in connection with the
exercise of their rights and adequate and effective legal remedies against the
removal or alteration of electronic rights management information attached to a
performance fixed in an audio-visual fixation. Finally, the term of protection
is at least 50 years after the fixation of the audiovisual performance.

The last part of the Treaty consists of the
usual administrative and procedural provisions, also in this case largely
inspired by the corresponding provisions of the WPPT.

The Treaty also includes a number of agreed
statements, some of which (relationship of the Treaty with WPPT and TRIPS,
definition of performer, technological protection measures in relation to
limitations and exceptions) were the subject of specific negotiations during
the 2012 Diplomatic Conference.

Article 23 of the Beijing Treaty provides
that the European Union may become party to the Treaty "having made the
declaration", during the Diplomatic Conference, 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 the Treaty. As the
Commission had been duly authorised by the Council to negotiate, and as
reflection of this authorisation, the European Union made this declaration at
the Beijing Diplomatic Conference. As a next step the Treaty should be signed
by the European Union pursuant to a decision of the Council based on Article
218(5) TFEU.

The Commission has judged the results of
the negotiations to be satisfactory and requests the Council to authorise the
signature, on behalf of the European Union, of the WIPO Beijing Treaty on
Audiovisual Performances adopted in Beijing on 24 June 2012.

2013/0065 (NLE)

Proposal for a

COUNCIL DECISION

on the signing, on behalf of the European
Union, of the WIPO Treaty on Audiovisual Performances

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 114 in conjunction
with 218(5) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       On 7 November 2000 the
Council authorised the Commission to negotiate in the context of the World
Intellectual Property Organisation to ensure participation of the European
Community in the Diplomatic Conference held in Geneva from 7 to 20 December
2000 with the aim to draw up an instrument to protect performers' rights in
their audiovisual performances.

(2)       The negotiations were
successfully concluded at a reconvened Diplomatic Conference held in Beijing from 20 to 26 June 2012 and the WIPO Beijing Treaty on Audiovisual Performances
was adopted on 24 June 2012.

(3)       The Treaty establishes a
set of new international rules in the area of neighbouring rights which aim at
ensuring the adequate protection and remuneration of audiovisual performers.

(4)       The Treaty shall be open
for signature by any eligible party for one year after its adoption. Therefore,
it should be signed on behalf of the European Union, subject to its conclusion
at a later date.

HAS ADOPTED THIS DECISION:

Article 1

The signing of the WIPO Beijing Treaty on
Audiovisual Performances on behalf of the Union is hereby approved, subject to
the conclusion of the said Treaty at a later date.

The text of the Treaty to be signed is
attached to this Decision.

Article 2

The Council Secretariat General shall
establish the instrument of full powers to sign the Treaty, subject to its
conclusion, for the person(s) indicated by the European Commission.

Article 3

This
Decision shall enter into force on the day of its adoption.

Done at Brussels,

                                                                       For
the Council

                                                                       The
President

ANNEX

to the

proposal for a Council Decision

on the signing, on behalf of the
European Union, of the WIPO Treaty on Audiovisual Performances

Beijing
Treaty on Audiovisual Performances

(adopted by the Diplomatic Conference on
the Protection of Audiovisual Performances in Beijing, on June 24, 2012)

CONTENTS

Preamble

Article 1: Relation to Other Conventions
and Treaties

Article 2: Definitions

Article 3: Beneficiaries of Protection

Article 4: National Treatment

Article 5: Moral Rights

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

Article 11: Right of Broadcasting and
Communication to the Public

Article 12: Transfer of Rights

Article 13: Limitations and Exceptions

Article 14: Term of Protection

Article 15: Obligations concerning
Technological Measures

Article 16: Obligations concerning Rights
Management Information

Article 17: Formalities

Article 18: Reservations and Notifications

Article 19: Application in Time

Article 20: Provisions on Enforcement of
Rights

Article 21: Assembly

Article 22: International Bureau

Article 23: Eligibility for Becoming Party
to the Treaty

Article 24: Rights and Obligations under
the Treaty

Article 25: Signature of the Treaty

Article 26: Entry into Force of the Treaty

Article 27: Effective Date of Becoming
Party to the Treaty

Article 28: Denunciation of the Treaty

Article 29: Languages of the Treaty

Article 30: Depositary

Preamble

The Contracting Parties,

Desiring to develop and maintain the
protection of the rights of performers in their audiovisual performances in a
manner as effective and uniform as possible,

Recalling the importance of the Development
Agenda recommendations, adopted in 2007 by the General Assembly of the
Convention Establishing the World Intellectual Property Organization (WIPO),
which aim to ensure that development considerations form an integral part of
the Organization’s work,

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 audiovisual performances,

Recognizing the need to maintain a balance
between the rights of performers in their audiovisual performances and the
larger public interest, particularly education, research and access to
information,

Recognizing that the WIPO Performances and
Phonograms Treaty (WPPT) done in Geneva on December 20, 1996, does not
extend protection to performers in respect of their performances fixed in
audiovisual fixations,

Referring to the Resolution concerning
Audiovisual Performances adopted by the Diplomatic Conference on Certain
Copyright and Neighboring Rights Questions on December 20, 1996,

Have agreed as follows:

Article 1
Relation to Other Conventions and Treaties

(1) Nothing in this Treaty shall derogate
from existing obligations that Contracting Parties have to each other under the
WPPT or the International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations done in Rome on October 26, 1961.

(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 treaties other than the WPPT, nor shall it prejudice any rights
and obligations under any other treaties[1],[2].

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 [3];

(b) "audiovisual fixation" means
the embodiment of moving images, whether or not accompanied by sounds or by the
representations thereof, from which they can be perceived, reproduced or
communicated through a device[4];

(c) "broadcasting" means the
transmission by wireless means for public reception of sounds or of images 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 organization or with its consent;

(d) "communication to the public"
of a performance means the transmission to the public by any medium, otherwise
than by broadcasting, of an unfixed performance, or of a performance fixed in
an audiovisual fixation. For the purposes of Article 11, "communication
to the public" includes making a performance fixed in an audiovisual
fixation audible or visible or audible and visible to the public.

Article 3
Beneficiaries of Protection

(1) Contracting Parties shall accord the
protection granted under this Treaty to performers who are nationals of other
Contracting Parties.

(2) Performers who are not nationals of one
of the Contracting Parties but who have their habitual residence in one of them
shall, for the purposes of this Treaty, be assimilated to nationals of that
Contracting Party.

Article 4
National Treatment

(1) Each Contracting Party shall accord to
nationals of other Contracting Parties the treatment it accords to its own
nationals with regard to the exclusive rights specifically granted in this
Treaty and the right to equitable remuneration provided for in Article 11 of
this Treaty.

(2) A Contracting Party shall be entitled
to limit the extent and term of the protection accorded to nationals of another
Contracting Party under paragraph (1), with respect to the rights granted in
Article 11(1) and 11(2) of this Treaty, to those rights that its own nationals
enjoy in that other Contracting Party.

(3) The obligation provided for in
paragraph (1) does not apply to a Contracting Party to the extent that another
Contracting Party makes use of the reservations permitted by Article 11(3) of
this Treaty, nor does it apply to a Contracting Party, to the extent that it
has made such reservation.

Article 5
Moral Rights

(1) Independently of a performer’s economic
rights, and even after the transfer of those rights, the performer shall, as
regards his live performances or performances fixed in audiovisual fixations,
have the right:

(i) 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

(ii) to object to any distortion,
mutilation or other modification of his performances that would be prejudicial
to his reputation, taking due account of the nature of audiovisual fixations.

(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[5].

Article 6
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 audiovisual fixations, in any manner or form[6].

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 audiovisual fixations 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[7].

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 audiovisual fixations as determined in
the national law of Contracting Parties, even after distribution of them by, or
pursuant to, authorization by the performer.

(2) Contracting Parties are exempt from the
obligation of paragraph (1) unless the commercial rental has led to widespread
copying of such fixations materially impairing the exclusive right of
reproduction of performers[8].

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 audiovisual fixations, 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.

Article 11
Right of Broadcasting and Communication to the Public

(1) Performers shall enjoy the exclusive
right of authorizing the broadcasting and communication to the public of their
performances fixed in audiovisual fixations.

(2) Contracting Parties may in a
notification deposited with the Director General of WIPO declare that, instead
of the right of authorization provided for in paragraph (1), they will
establish a right to equitable remuneration for the direct or indirect use of
performances fixed in audiovisual fixations for broadcasting or for
communication to the public. Contracting Parties may also declare that
they will set conditions in their legislation for the exercise of the right to
equitable remuneration.

(3) Any Contracting Party may declare that
it will apply the provisions of paragraphs (1) or (2) only in respect of
certain uses, or that it will limit their application in some other way, or
that it will not apply the provisions of paragraphs (1) and (2) at all.

Article 12
Transfer of Rights

(1) A Contracting Party may provide in its
national law that once a performer has consented to fixation of his or her
performance in an audiovisual fixation, the exclusive rights of authorization
provided for in Articles 7 to 11 of this Treaty shall be owned or exercised by
or transferred to the producer of such audiovisual fixation subject to any
contract to the contrary between the performer and the producer of the
audiovisual fixation as determined by the national law.

(2) A Contracting Party may require with
respect to audiovisual fixations produced under its national law that such
consent or contract be in writing and signed by both parties to the contract or
by their duly authorized representatives.

(3) Independent of the transfer of
exclusive rights described above, national laws or individual, collective or
other agreements may provide the performer with the right to receive royalties
or equitable remuneration for any use of the performance, as provided for under
this Treaty including as regards Articles 10 and 11.

Article 13
Limitations and Exceptions

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

(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 and do not unreasonably prejudice the legitimate interests of the
performer[9].

Article 14
Term of Protection

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.

Article 15
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 in connection with
the exercise of their rights under this Treaty and that restrict acts, in
respect of their performances, which are not authorized by the performers
concerned or permitted by law[10],[11].

Article 16
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, import for
distribution, broadcast, communicate or make available to the public, without
authority, performances or copies of performances fixed in audiovisual
fixations 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, or the owner of any right in the performance,
or information about the terms and conditions of use of the performance, and
any numbers or codes that represent such information, when any of these items
of information is attached to a performance fixed in an audiovisual fixation[12].

Article 17
Formalities

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

Article 18
Reservations and Notifications

(1) Subject to provisions of Article 11(3),
no reservations to this Treaty shall be permitted.

(2) Any notification under Article 11(2) or
19(2) may be made in instruments of ratification or accession, and the
effective date of the notification shall be the same as the date of entry into
force of this Treaty with respect to the Contracting Party having made the
notification. Any such notification may also be made later, in which case
the notification shall have effect three months after its receipt by the
Director General of WIPO or at any later date indicated in the notification.

Article 19
Application in Time

(1) Contracting Parties shall accord the
protection granted under this Treaty to fixed performances that exist at the
moment of the entry into force of this Treaty and to all performances that
occur after the entry into force of this Treaty for each Contracting Party.

(2) Notwithstanding the provisions of
paragraph (1), a Contracting Party may declare in a notification deposited with
the Director General of WIPO that it will not apply the provisions of Articles
7 to 11 of this Treaty, or any one or more of those, to fixed performances that
existed at the moment of the entry into force of this Treaty for each
Contracting Party. In respect of such Contracting Party, other Contracting
Parties may limit the application of the said Articles to performances that
occurred after the entry into force of this Treaty for that Contracting Party.

(3) The protection provided for in this
Treaty shall be without prejudice to any acts committed, agreements concluded
or rights acquired before the entry into force of this Treaty for each
Contracting Party.

(4) Contracting Parties may in their
legislation establish transitional provisions under which any person who, prior
to the entry into force of this Treaty, engaged in lawful acts with respect to
a performance, may undertake with respect to the same performance acts within
the scope of the rights provided for in Articles 5 and 7 to 11 after the entry
into force of this Treaty for the respective Contracting Parties.

Article 20
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 21
Assembly

(1)

(a) The Contracting Parties shall have an
Assembly.

(b) Each Contracting Party shall be
represented in the Assembly 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 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 under Article 23(2) in respect of the admission of certain
intergovernmental organizations to become party to this Treaty.

(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.

(b) Any Contracting Party that is an
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.

(4) The Assembly shall meet upon
convocation by the Director General and, in the absence of exceptional
circumstances, during the same period and at the same place as the General
Assembly of WIPO.

(5) The Assembly shall endeavor to take its
decisions by consensus and 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 22
International Bureau

The International Bureau of WIPO shall
perform the administrative tasks concerning the Treaty.

Article 23
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 Union, 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 24
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 25
Signature of the Treaty

This Treaty shall be open for signature at
the headquarters of WIPO by any eligible party for one year after its adoption.

Article 26
Entry into Force of the Treaty

This Treaty shall enter into force three
months after 30 eligible parties referred to in Article 23 have deposited their
instruments of ratification or accession.

Article 27
Effective Date of Becoming Party to the Treaty

This Treaty shall bind:

(i) the 30 eligible parties referred
to in Article 26, from the date on which this Treaty has entered into force;

(ii) each other eligible party
referred to in Article 23, from the expiration of three months from the date on
which it has deposited its instrument of ratification or accession with the
Director General of WIPO.

Article 28
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 29
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
Union, and any other intergovernmental organization that may become party to
this Treaty, if one of its official languages is involved.

Article 30
Depositary

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

[1]               Agreed statement concerning
Article 1: It is understood that nothing in this Treaty affects any rights
or obligations under the WIPO Performances and Phonograms Treaty (WPPT) or
their interpretation and it is further understood that paragraph 3 does not
create any obligations for a Contracting Party to this Treaty to ratify or
accede to the WPPT or to comply with any of its provisions.

[2]               Agreed statement concerning
Article 1(3): It is understood that Contracting Parties who are members of the
World Trade Organization (WTO) acknowledge all the principles and objectives of
the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement) and understand that nothing in this Treaty affects the provisions of
the TRIPS Agreement, including, but not limited to, the provisions relating to
anti-competitive practices.

[3]               Agreed statement concerning
Article 2(a): It is understood that the definition of
"performers" includes those who perform a literary or artistic work
that is created or first fixed in the course of a performance.

[4]               Agreed statement concerning
Article 2(b): It is hereby confirmed that the definition of "audiovisual
fixation" contained in Article 2(b) is without prejudice to Article 2(c)
of the WPPT.

[5]               Agreed statement concerning
Article 5: For the purposes of this Treaty and without prejudice to any
other treaty, it is understood that, considering the nature of audiovisual
fixations and their production and distribution, modifications of a performance
that are made in the normal course of exploitation of the performance, such as
editing, compression, dubbing, or formatting, in existing or new media or
formats, and that are made in the course of a use authorized by the performer,
would not in themselves amount to modifications within the meaning of
Article 5(1)(ii). Rights under Article 5(1)(ii) are concerned only
with changes that are objectively prejudicial to the performer’s reputation in
a substantial way. It is also understood that the mere use of new or
changed technology or media, as such, does not amount to modification within
the meaning of Article 5(1)(ii).

[6]               Agreed statement concerning
Article 7: The reproduction right, as set out in Article 7, and the
exceptions permitted thereunder through Article 13, fully apply in the digital
environment, in particular to the use of performances in digital form. It
is understood that the storage of a protected performance in digital form in an
electronic medium constitutes a reproduction within the meaning of this
Article.

[7]               Agreed statement concerning
Articles 8 and 9: As used in these Articles, the expression "original
and copies," being subject to the right of distribution and the right of
rental under the said Articles, refers exclusively to fixed copies that can be
put into circulation as tangible objects.

[8]               Agreed statement concerning
Articles 8 and 9: As used in these Articles, the expression "original
and copies," being subject to the right of distribution and the right of
rental under the said Articles, refers exclusively to fixed copies that can be
put into circulation as tangible objects.

[9]               Agreed statement concerning
Article 13: The Agreed statement concerning Article 10 (on Limitations and
Exceptions) of the WIPO Copyright Treaty (WCT) is applicable mutatis
mutandis also to Article 13 (on Limitations and Exceptions) of the Treaty.

[10]             Agreed statement concerning
Article 15 as it relates to Article 13: It is understood that nothing in
this Article prevents a Contracting Party from adopting effective and necessary
measures to ensure that a beneficiary may enjoy limitations and exceptions
provided in that Contracting Party’s national law, in accordance with Article
13, where technological measures have been applied to an audiovisual
performance and the beneficiary has legal access to that performance, in
circumstances such as where appropriate and effective measures have not been
taken by rights holders in relation to that performance to enable the
beneficiary to enjoy the limitations and exceptions under that Contracting
Party’s national law. Without prejudice to the legal protection of an
audiovisual work in which a performance is fixed, it is further understood that
the obligations under Article 15 are not applicable to performances unprotected
or no longer protected under the national law giving effect to this Treaty.

[11]             Agreed statement concerning
Article 15: The expression "technological measures used by performers"
should, as this is the case regarding the WPPT, be construed broadly, referring
also to those acting on behalf of performers, including their representatives,
licensees or assignees, including producers, service providers, and persons
engaged in communication or broadcasting using performances on the basis of due
authorization.

[12]             Agreed statement concerning
Article 16: The Agreed statement concerning Article 12 (on Obligations
concerning Rights Management Information) of the WCT is applicable mutatis mutandis
also to Article 16 (on Obligations concerning Rights Management Information) of
the Treaty.

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