WIPO Performances

UNIT 12 WIPO PERFORMANCES AND and Phonograms

Treaty (WPPT)
PHONOGRAMS TREATY (WPPT)
Structure

12.1 Introduction
12.2 Basic Features of WPPT
12.3 Text of the WIPO Performance and Phonograms Treaty (WPPT)
12.4 Summary
12.5 Terminal Questions
12.6 Answers and Hints

12.1 INTRODUCTION

The advent of digital technologies suddenly created a host of problems for the
performers, producers of phonograms and the broadcasting organizations. The fear of
misappropriation of their rights due to communication or reproduction through the
Internet over which effective control was wanting led to conclusion of a new treaty in
December 1996 called the Performances and Phonograms treaty (WPPT) under the
auspices of WIPO. This was an opportunity for reviewing the Rome Convention and,
many even hold the view that WPPT replaces the Rome Convention in respect of
performer’s rights and the rights of phonogram producers. The need to introduce the
new international rules to provide, as effectively and uniformly as possible, adequate
solutions to the new questions raised by the invasion of the Internet technologies,
constitutes an important advance and a defining feature of the WPPT.

Objectives

At the end of the unit, you should be able to understand about the WPPT in terms of:

• its various special features;

• how it has extended the scope of various rights of the performers and the
producers of the phonograms; and
• comparatively speaking, how advanced it has become over the previous
conventions (the Rome Convention and the TRIPS Agreement).

12.2 BASIC FEATURES OF WPPT

As we know, the Rome Convention, 1961 was dedicated to codifying the rights of the
performers and the producers of phonograms. The TRIPS Agreement signed in
December 1991 introduced some valuable additions of both quality and scope to these
related rights. With the emergence of the new global internet technologies, the
problem of protecting the rights of the performers and the producers of phonograms
became more acute. This was largely so because of diversified usages to which the
value-added performances became open and vulnerable. (With respect to the threats
and challenges posed by digital technology please refer to Unit 11, par.1.1). Taking all
these problems into account WPPT was concluded in 1996.

We now turn to those special features of WPPT which truly makes it a clear advance
over the Rome convention as well as the TRIPS Agreement as far as protection of the
related rights is concerned.

A basic feature of the new treaty is that the definition of performers has been extended
to cover those who perform (that is who act, sing, deliver, declaim, play in, interpret)
37
Impact of New Technology not only literary or artistic works but also expressions of folklore. Whereas a literary
and artistic work usually applies to a work whose author is identified, expression of
folklore may cover works (such as songs, stories, dance, etc.,) which is the product of
a community carried on and modified through several generations. More than
otherwise, authors of expressions of folklore are unknown.

Similarly the definition of phonogram has been extended to cover even

“representation of sounds” ( that is not only real sounds, which pre-exist and have
been recorded, but also sounds which have been produced directly by computers and
which are not fixations of pre-existing sounds) and it specifically excludes fixation
incorporated in a cinematographic or other audiovisual work.

Another important feature is that the rights of performers were extended, for the first
time in international law, to include the moral rights of the performers. Independently
of the performer’s economic right 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 a particular
performance and to object to any distortion, mutilation or other modification of such
performance that would be prejudicial to his reputation (Article 5).

As far as economic rights are concerned, The WCT goes beyond both the Rome
Convention and the TRIPS Agreement. It grants to performers the exclusive right to
authorize (and not just a possibility of preventing) the broadcast, public
communication and fixation of the unfixed performances (Article 6).

Similarly under Article 7, an exclusive right to authorize the direct or indirect

reproduction of the performances that are fixed in phonograms, in any manner or
form, is granted to performers. Likewise producers enjoy also the right to authorize
the direct or indirect reproduction of their phonograms (Article 11). An agreed
explanatory statement to both Articles 7 and 11 states that the reproduction right
“applies fully in the digital environment” and that “storage of a protected performance
or phonogram in digital form in an electronic medium constitutes a reproduction
within the meaning of these Articles”.

The WPPT also confers an exclusive right of distribution, through sale or other
transfer of ownership, of performances fixed in phonograms. The same right is
granted to producers of phonograms with respect to the distribution of their
phonograms. Neither the Rome Convention nor the TRIPS Agreement had provided
for such right.

Both performers and producers enjoy the exclusive right to authorize the rental to the
public of original or copies of either their performances fixed in phonograms (for
performers) or their phonograms (for producers).

Also both performers and producers of phonograms enjoy the exclusive right of
making available to the public, by wire or wireless means, of their performances fixed
in a phonogram (for performers) or their phonograms (for producers). This right
applies to the exploitation of performances or phonograms through digital
transmission via the Internet.

The right of remuneration granted to performers and the producers of phonograms for
broadcasting and public communication remains however as weak as it was before, as
it is not compulsory

All the rights enumerated before may be subject to limitations and exceptions. Article
16 states that national countries may provide for the same kind of limitations and
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
38
copyright in literary and artistic works. However it is also stated that limitations and WIPO Performances
and Phonograms
exceptions should be confined to certain cases which do not conflict with a normal Treaty (WPPT)
exploitation of the performance or phonogram and do not unreasonably prejudice the
legitimate interests of the performer or producer of the phonogram.

In the digital environment, no rights may be applied efficiently without the support of
technological measures of protection and rights management information necessary to
license and monitor uses. Such measures and information systems are left to the
interested rights owners, but appropriate legal provisions are also needed to protect the
use of such measures and information. Such provisions are contained in Articles 18
and 19 of the WPPT.

Under Article 18, Contracting Parties shall provide adequate legal protection and
effective legal remedies against the circumvention of effective technological measures
(for example encryption or water marking) that are used by performers or producers of
phonograms in connection with the exercise of their rights.

Article 19 obliges a Contracting Party to provide adequate and effective legal

remedies against any deliberate unauthorized removal or alteration of any electronic
rights management information (RMI). A RMI is defined as meaning “information
which identifies the performer, the performance, 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.”

As with WCT so with WPPT, the treaty enters into force on ratification by 30
countries. For the list of the Contracting Parties, please visit the following website:
http://www.wipo.int/treaties/en/documents/word/s-wppt.doc

Reproduced below please find the text of WIPO Performances and Phonograms
Treaty.

12.3 TEXT OF THE WIPO PERFORMANCE AND

PHONOGRAMS TREATY (WPPT)

WIPO Performances and Phonograms Treaty and Agreed Statements

Concerning the WIPO Performances and Phonograms Treaty WIPO
Performances and Phonograms Treaty* (adopted in Geneva on December
20, 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,

39
Impact of New Technology 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:

CHAPTER I: GENERAL PROVISIONS

Article 1
Relation to Other Conventions

1. Nothing in 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.1
3. This Treaty shall not have any connection with, nor shall it prejudice any rights
and obligations under, any other treaties.

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;
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 they 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;3
f) “broadcasting” means the transmission by wireless means for public reception of
sounds or of images and sounds or of the representations thereof; such
transmission by satellite is also “broadcasting”; transmission of encrypted signals
is “broadcasting” where the means for decrypting are provided to the public by
the broadcasting organization or with its consent;
g) “communication to the public” of a performance or a phonogram means the
transmission to the public by any medium, otherwise than by broadcasting, of
sounds of a 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.
40
 Article 3 WIPO Performances
and Phonograms
Beneficiaries of Protection under this Treaty Treaty (WPPT)

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

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.

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.

41
Impact of New Technology 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 phonograms, 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 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.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 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

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.

42
 CHAPTER III: RIGHTS OF PRODUCERS OF PHONOGRAMS WIPO Performances
and Phonograms
Treaty (WPPT)
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.9

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

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.

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 rights 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.

CHAPTER IV: COMMON PROVISIONS

Article 15
Right to Remuneration for Broadcasting and Communication to the Public

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.

43
Impact of New Technology 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.

4. 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 purposes.1213

Article 16
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 and
producers of phonograms 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 or phonogram and do not unreasonably
prejudice the legitimate interests of the performer or of the producer of the
phonogram.1415

Article 17
Term of Protection

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.

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

Contracting Parties shall provide adequate legal protection and effective legal
remedies against the circumvention of 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.

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;

44
 ii) to distribute, import for distribution, broadcast, communicate or make WIPO Performances
and Phonograms
available to the public, without authority, performances, copies of fixed Treaty (WPPT)
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.

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

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.
45
Impact of New Technology 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 26(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 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.
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.
46
 Article 28 WIPO Performances
and Phonograms
Signature of the Treaty Treaty (WPPT)

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.

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.

47
Impact of New Technology Article 33
Depositary

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

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 phonogram and a performer or producer owing
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.
2
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.
3
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.
4
Agreed statement concerning Article 3(2): For the application of Article 3(2), it is
understood that fixation means the finalization of the master tape (“bande-mere”).
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.
6
Agreed statement concerning Articles 7, 11 and 16: The reproduction right, as set
out in Articles 7 and 11, and the exceptions permitted thereunder through Article 16,
fully apply in the digital environment, in particular to the use of performances and
phonograms in digital form. It is understood that the storage of a protected
performance or phonogram in digital form in an electronic medium constitutes a
reproduction within the meaning of these Articles.
7
Agreed statement concerning Articles 2(e), 8, 9, 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.
8
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.
9
Agreed statement concerning Articles 7, 11 and 16: The reproduction right, as set
out in Articles 7 and 11, and the exceptions permitted thereunder through Article 16,
fully apply in the digital environment, in particular to the use of performances and
phonograms in digital form. It is understood that the storage of a protected
performance or phonogram in digital form in an electronic medium constitutes a
reproduction within the meaning of these Articles.
10
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
48
right of distribution and the right of rental under the said Articles, refer exclusively to WIPO Performances
and Phonograms
fixed copies that can be put into circulation as tangible objects. Treaty (WPPT)
11
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.
12
Agreed statement concerning Article 15: It is understood that Article 15 does not
represent a complete resolution of the level of rights of broadcasting and
communication to the public that should be enjoyed by performers and phonogram
producers in the digital age. Delegations were unable to achieve consensus on
differing proposals for aspects of exclusivity to be provided in certain circumstances
or for rights to be provided without the possibility of reservations, and have therefore
left the issue 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.
14
Agreed statement concerning Articles 7, 11, and 16: The reproduction right, as set
out in Articles 7 and 11, and the exceptions permitted thereunder through Article 16,
fully apply in the digital environment, in particular to the use of performances and
phonograms in digital form. It is understood that the storage of a protected
performance or phonogram in digital form in an electronic medium constitutes a
reproduction within the meaning of these Articles.
15
Agreed statement concerning Article 16: The agreed statement concerning Article
10 (on Limitations and Exceptions) of the WIPO Copyright Treaty is applicable
mutatis mutandis also to Article 16 (on Limitations and Exceptions) of the WIPO
Performances and Phonograms Treaty. [The text of the agreed statement concerning
Article 10 of the WCT reads as follows: “It is understood that the provisions of Article
10 permit Contracting Parties 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.]
16
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 impending the enjoyment of rights under
this Treaty.”

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Impact of New Technology

12.4 SUMMARY

TRIPS Agreement signed in December 1991 mark watershed in the development of

copyright protection. Though the Agreement vastly expanded the scope of rights of
the performers, producers of phonograms and a broadcasting organizations, they
however looks small before the mounting problems which were released by the advent
of the digital technologies led by Internet. This was treated as an opportunity for
reviewing the Rome Convention. In its place came the WIPO Performances and
Phonograms Treaty with new International Rules to provide as effectively and
uniformly as possible, adequate solutions to the problems of the performers rights and
the rights of the phonogram producers.
A hall mark of the new treaty lay in the reworking of the definition of the rights as
such. A good deal of expansion was introduced in this redefinition of rights. Now the
performers came perform expression of folklore. For the first time in International
Law, the performers rights included their moral rights. Going beyond the TRIPS
Agreement, the new treaty grants exclusive rights (and not just a possibility of
preventing) to performers to prohibit the unauthorized broadcast, public
communication and fixation of the unfixed performances. It gave the exclusive rights
of distribution to the performers, something which neither the Berne nor the Rome
Convention nor even the TRIPS Agreement provided for. They have now the rental
rights on both original and the copies as against the TRIPS provision for ‘originals or
copies’.
The most special feature of this treaty however lay in its innovative protection through
rights management information and the right of self help granted through Articles
18&19 for the first time to the performers and the producers of the phonograms.
The right of remuneration granted to performers and the producers of phonograms
remains however as weak as it was before. The questions of limitations and
exceptions to be allowed in the digital network environment in a general way without
any uniform and specific obligations.
As with WCT so with WPPT, the treaty enters into force on ratification by not less
than 30 members states.

12.5 TERMINAL QUESTIONS Spend 10 min.

1. Answer Yes or No.

i) Phonogram doesn’t comprise fixation in a cinematographic or audiovisual

work.
ii) A performer has a right to be identified as such in respect of a particular
performance put up by him / her.
iii) Storage of a performance in the digital form can not be reproduced by a
performer.
iv) Neither the Berne nor the Rome Convention nor the TRIPS Agreement has
given an exclusive right of distribution to the performers.
v) Rental rights would now comprise in both original and copies.

2. Write a note on the right of self help.

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 WIPO Performances
12.6 ANSWERS AND HINTS and Phonograms
Treaty (WPPT)
Terminal Questions

1. Answers Yes or No.

i) Yes
ii) Yes
iii) No
iv) Yes
v) No

2. For answer refer to Articles 18 & 19.

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