WIPO Performances and Phonograms Treaty (WPPT) - Joint Declarations
11. 4. 2000 EN Official Journal of the European Communities L 89/15 WIPO PERFORMANCES AND PHONOGRAMS TREATY (WPPT) Geneva (1996) Table of contents Preamble CHAPTER I Article 1 Article 2 Article 3 Article 4 GENERAL PROVISIONS Relation to other conventions Definitions Beneficiaries of protection under this Treaty National treatment CHAPTER II RIGHTS OF PERFORMERS Article 5 Article 6 Article 7 Article 8 Article 9 Moral rights of performers Economic rights of performers in their unfixed performances Right of reproduction Right of distribution Right of rental Article 10 Right of making available of fixed performances CHAPTER III RIGHTS OF PRODUCERS OF PHONOGRAMS Article 11 Article 12 Article 13 Article 14 Right of reproduction Right of distribution Right of rental Right of making available of phonograms CHAPTER IV COMMON PROVISIONS Article 15 Article 16 Article 17 Article 18 Article 19 Article 20 Article 21 Article 22 Article 23 Right to remuneration for broadcasting and communication to the public Limitations and exceptions Term of protection Obligations concerning technological measures Obligations concerning rights management information Formalities Reservations Application in time Provisions on enforcement of rights CHAPTER V ADMINISTRATIVE AND FINAL CLAUSES Article 24 Article 25 Article 26 Article 27 Article 28 Article 29 Article 30 Article 31 Article 32 Article 33 Assembly International Bureau Eligibility for becoming Party to the Treaty Rights and obligations under the Treaty Signature of the Treaty Entry into force of the Treaty Effective date of becoming Party to the Treaty Denunciation of the Treaty Languages of the Treaty Depositary L 89/16 EN Official Journal of the European Communities 11. 4. 2000 PREAMBLE THE CONTRACTING PARTIES, DESIRING to develop and maintain the protection of the rights of performers and producers of phonograms in a manner as effective and uniform as possible, RECOGNISING the need to introduce new international rules in order to provide adequate solutions to the questions raised by economic, social, cultural and technological developments, RECOGNISING the profound impact of the development and convergence of information and communication technolo- gies on the production and use of performances and phonograms, RECOGNISING the need to maintain a balance between the rights of performers and producers of phonograms and the larger public interest, particularly education, research and access to information, HAVE AGREED AS FOLLOWS: CHAPTER I GENERAL PROVISIONS Article 1 Relation to other conventions 1. Nothing in this Treaty shall derogate from existing obli- gations that Contracting Parties have to each other under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations done in Rome, October 26, 1961 (hereinafter the ‘Rome Conven- tion’). 2. Protection granted under this Treaty shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provisions of this Treaty may be interpreted as prejudicing such protection. 3. This Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties. Article 2 Definitions performance or other sounds, or the representations of sounds; (e) ‘publication’ of a fixed performance or a phonogram means the offering of copies of the fixed performance or the phonogram to the public, with the consent of the right- holder, and provided that copies are offered to the public in reasonable quantity; (f) ‘broadcasting’ means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also ‘broadcasting’; transmission of encrypted signals is ‘broadcasting’ where the means for decrypting are provided to the public by the broadcasting organisation or with its consent; (g) ‘communication to the public’ of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a the representations of performance or sounds fixed in a phonogram. For the purposes of Article 15, includes making the sounds or representations of sounds fixed in a phonogram audible to the public. ‘communication to the public’ the sounds or For the purposes of this Treaty: (a) ‘performers’ are actors, singers, musicians, dancers, and other persons who act, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expres- sions of folklore; (b) ‘phonogram’ means the sounds of a the fixation of performance or of other sounds, or of representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work; Article 3 Beneficiaries of protection under this Treaty 1. Contracting Parties shall accord the protection provided under this treaty to the performers and producers of phono- grams who are nationals of other Contracting Parties. (c) ‘fixation’ means the embodiment of sounds, or of the repre- from which they can be perceived, sentations thereof, reproduced or communicated through a device; (d) ‘producer of a phonogram’ means the person, or the legal entity, who or which takes the initiative and has the the sounds of a responsibility for the first fixation of 2. The nationals of other Contracting Parties shall be under- stood to be those performers or producers of phonograms who would meet the criteria for eligibility for protection provided under the Rome Convention, were all the Contracting Parties to this Treaty Contracting States of that Convention. In respect of these criteria of eligibility, Contracting Parties shall apply the relevant definitions in Article 2 of this Treaty. 11. 4. 2000 EN Official Journal of the European Communities L 89/17 Any Contracting Party availing itself of the possibilities 3. provided in Article 5(3) of the Rome Convention or, for the purposes of Article 5 of the same Convention, Article 17 thereof shall make a notification as foreseen in those provisions to the Directory-General of the World Intellectual Property Organisation (WIPO). Article 4 National treatment Article 6 Economic rights of performers performances in their unfixed Performers shall enjoy the exclusive right of authorising, as regards their performances: (i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and (ii) the fixation of their unfixed performances. 1. Each Contracting Party shall accord to nationals of other Contracting Parties, as defined in Article 3(2), the treatment it accords to its own nationals with regard to the exclusive rights specifically granted in this Treaty, and to the right to equitable remuneration provided for in Article 15 of this Treaty. Article 7 Right of reproduction 2. The obligation provided for in paragraph 1 does not apply to the extent that another Contracting Party makes use of the reservations permitted by Article 15(3) of this Treaty. Performers shall enjoy the exclusive right of authorising the direct or indirect reproduction of their performance fixed in phonograms, in any manner or form. CHAPTER II RIGHTS OF PERFORMERS Article 5 Moral rights of performers Independently of a performer's economic rights, and even 1. after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phono- grams, have the right to claim to be identified as the performer of this performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of this perfor- mances that would be prejudicial to his reputation. Article 8 Right of distribution Performers shall enjoy the exclusive right of authorising 1. the making available to the public of the original and copies of their performances fixed in phonograms through sale or other transfer of ownership. Nothing in this Treaty shall affect 2. the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph 1 applies after the first sale or other transfer of ownership of the original or a the copy of performer. the performance with the authorisation of Article 9 Right of rental 2. The rights granted to a performer in accordance with paragraph 1 shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the Contracting Party where protection is claimed. However, those Contracting Parties whose legislation, at the moment of their ratification of or accession to this Treaty, does not provide for protection after the death of the performer of all rights set out in the preceding paragraph may provide that some of these rights will, after his death, cease to be maintained. 3. The means of redress for safeguarding the rights granted under this Article shall be governed by the legislation of the Contracting Party where protection is claimed. 1. Performers shall enjoy the exclusive of authorising the commercial rental to the public of the original and copies of their performances fixed in phonograms as determined in the national law of Contracting Parties, even after distribution of them by, or pursuant to, authorisation by the performer. 2. Notwithstanding the provisions of paragraph 1, a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of perfor- mers for the rental of copies of their performances fixed in phonograms, may maintain that system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive right of reproduction of performers. L 89/18 EN Official Journal of the European Communities 11. 4. 2000 Article 10 of the public may access them from a place and at a time indivisually chosen by them. Right of making available of fixed performances Performers shall enjoy the exclusive right of authorising the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place at a time individually chosen by them. CHAPTER III RIGHTS OF PRODUCERS OF PHONOGRAMS Article 11 Right of reproduction Producers of phonograms shall enjoy the exclusive right of authorising the direct of indirect reproduction of their phono- grams, in any manner or form. Article 12 Right of distribution 1. Producers of phonograms shall enjoy the exclusive right of authorising the making available to the public of the original and copies of their phonograms through sale or other transfer of ownership. Nothing in this Treaty shall affect 2. the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph 1 applies after the first sale or other transfer of ownership fo the original or a copy of the phonogram with the authorising of the producer of the phonogram. Article 13 Right of rental Producers of phonograms shall enjoy the exclusive right 1. the of authorising the commercial rental original and copies of their phonograms, even after distribution of them by, or pursuant to, authorisation by the producer. to the public of 2. Notwithstanding the provisions of paragraph 1, a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of produ- cers of phonograms for the rental of copies of their phono- grams, may maintain that system provided that the commercial rental of phonograms is not giving rise to the material impai- ment of the exclusive right of reproduction of producers of phonograms. CHAPTER IV COMMON PROVISIONS Article 15 Right to remuneration for broadcasting and communi- cation to the public Performers and producers of phonograms shall enjoy the 1. right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public. 2. Contracting Parties may establish in their national legisla- tion that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration. 3. Any Contracting Party may, in a notification deposited with the Director-General of WIPO, declare that will apply the provisions of paragraph 1 only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all. 4. For the purposes of this Article, phonograms made avail- able to the public by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them shall be considered as if they had been published for commercial purposes. Article 16 Limitations and exceptions in their national Contracting Parties may, 1. legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers and producers of phonograms as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works. Article 14 Right of making available of phonograms Producers of phonograms shall enjoy the exclusive right of authorising the making available to the public of their phono- grams, by wire or wireless means, in such a way that members Contracting Parties shall confine any limitations of or 2. exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the performance or phonogram and do not unreasonably prejudice the legitimate interests of the performer or of the producer of the phonogram. 11. 4. 2000 EN Official Journal of the European Communities L 89/19 Article 17 Term of protection cation on making of a fixed performance or a phonogram to the public. The term of protection to be granted to performers under 1. this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed in a phonogram. 2. The term of protection to be granted to producers of phonograms under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which the phonogram was published, or failing such publica- tion within 50 years from fixation of the phonogram, 50 years from the end of the year in which the fixation was made. Article 18 Obligations concerning technological measures Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers of produ- cers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorised by the performers or the producers of phonogram concerned or permitted by law. Article 19 Obligations concerning rights management information 1. Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty: (i) to remove or alter any electronic rights management infor- mation without authority; (ii) to distribute, import for distribution, broadcast, communi- cate or make available to the public, without authority, performance, copies of fixed performances or phonograms knowing that electronic rights management information has been removed or altered without authority. the performer, information which identifies As used in this Article, ‘rights management information’ 2. means the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communi- Article 20 Formalities The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality. Article 21 Reservations Subject to the provisions of Article 15(3), no reservations to this Treaty shall be permitted. Article 22 Application in time 1. Contracting Parties shall apply the provisions of Article 18 of the Berne Convention, mutatis mutandis, to the rights of performers and producers of phonograms provided for in this Treaty. 2. Notwithstanding paragraph 1, a Contracting party may limit the application of Article 5 of this Treaty to performances which occurred after the entry into force of this Treaty for that Party. Article 23 Provisions on enforcement of rights Contracting Parties undertake to adopt, 1. in accordance with their legal systems, the measures necessary to ensure the application of this Treaty. 2. Contracting Parties shall ensure that enforcement proced- ures are available under their law so as to permit effective action against any act of infringement of rights covered by this infringe- including expeditions remedies to prevent Treaty, ments and remedies which constitute a deterrent to further infringements. CHAPTER V ADMINISTRATIVE AND FINAL CLAUSES Article 24 Assembly 1. (a) The Contracting Parties shall have an Assembly. (b) Each Contracting Party shall be represented by one dele- gate who may be assisted by alternate delegates, advisors and experts. L 89/20 EN Official Journal of the European Communities 11. 4. 2000 (c) The expenses of each delegation shall be borne by the Contracting Party that has appointed the delegation. The Assembly may ask WIPO to grant financial assistance to facilitate the participation of delegations of Contracting Parties that are regarded as developing countries in conformity with the established practice of the General Assembly of the United Nations or that are countries in transition to a market economy. 2. (a) The Assembly shall deal with matters concerning the maintenance and development of this Treaty and the application and operation of this Treaty. (b) The Assembly shall perform the function allocated to it the admission of under Article 26(2) certain intergovernmental organisations to become party to this Treaty. in respect of (c) The Assembly shall decide the convocation of any diplo- matic conference for the revision of this Treaty and give the necessary instructions to the Director General of WIPO for the preparation of such diplomatic confer- ence. 3. (a) Each Contracting Party that is a State shall have one vote and shall vote only in its own name. (b) Any Contracting Party that is an intergovernmental organisation may participate in the vote, in place of its Member States, with a number of votes equal to the number of its Member States which are party to this Treaty. No such intergovernmental organisation shall participate in the vote if any one of its Member States exercises its right to vote and vice versa. The European Community, having made the Declaration 3. referred to in the preceding paragraph in the Diplomatic Conference that has adopted this Treaty, may become Party to this Treaty. Article 27 Rights and obligations under the Treaty Subject to any specific provisions to the contrary in this Treaty, each Contracting Party shall enjoy all of the rights and assume all of the obligations under this Treaty. Article 28 Signature of the Treaty This Treaty shall be open for signature until December 31, 1997, by any Member State of WIPO and by the European Community. Article 29 Entry into force of the Treaty This Treaty shall enter into force three months after 30 instru- ments of ratification or accession by States have been deposited with the Director-General of WIPO. Article 30 4. The Assembly shall meet in ordinary session once every two years upon convocation by the Director-General of WIPO. Effective date of becoming Party to the Treaty The Assembly shall establish its own rules of procedure, 5. including the convocation of extraordinary sessions, the requirements of a quorum and, subject to the provisions of this Treaty, the required majority for various kinds of decisions. Article 25 International Bureau The International Bureau of WIPO shall perform the adminis- trative tasks concerning the Treaty. Article 26 Eligibility for becoming Party to the Treaty Any Member State of WIPO may become Party to this 1. Treaty. 2. The Assembly may decide to admit any intergovern- mental organisation to become Party to this Treaty which declares that it is competent in respect of, and has its own legislation binding on all its Member States on, matters covered by this Treaty and that it has been duly authorised, in accord- ance with its internal procedures, to become Party to this Treaty. This Treaty shall bind: (i) the 30 States referred to in Article 29, from the date on which this Treaty has entered into force; (ii) each other State from the expiration of three months from the date on which the State has deposited its instrument with the Director-General of WIPO; (iii) the European Community, from the expiration of three months after the deposit of its instrument of ratification or accession if such instrument has been deposited after the entry into force of this Treaty according to Article 29, or, three months after the entry into force of this Treaty if such instrument has been deposited before the entry into force of this Treaty; (iv) any other intergovernmental organisation that is admitted to become Party to this Treaty, from the expiration of three months after the deposit of its instrument of acces- sion. Article 31 Denunciation of the Treaty This Treaty may be denounced by any Contracting Party by notification addressed to the Director-General of WIPO. Any denunciation shall take effect one year from the date on which the Director-General of WIPO received the notification. 11. 4. 2000 EN Official Journal of the European Communities L 89/21 Article 32 Languages of the Treaty This Treaty is signed in a single original 1. in English, Arabic, Chinese, French, Russian and Spanish languages, the versions in all these languages being equally authentic. 2. An official text in any language other than those referred to in paragraph 1 shall be established by the Director-General of WIPO on the request of an interested party, after consulta- tion with all the interested parties. For the purposes of this paragraph, ‘interested party’ means any Member State of WIPO whose official language, or one of whose official languages, is involved and the European Community, and any other inter- governmental organisation that may become Party to this Treaty, languages is involved. if one of its official Article 33 Depositary The Director-General of WIPO is the depositary of this Treaty. L 89/22 EN Official Journal of the European Communities 11. 4. 2000 Agreed statements Concerning Article 1(2) It is understood that Article 1(2) clarifies the relationship between rights in phonograms under this Treaty and copyright in works embodied in the phonograms. In cases where authorisation is needed from both the author of a work embodied in the phonogram and a performer or producer owning rights in the phonogram, the need for the authorisation of the author does not cease to exist because the authorisation of the performer or producer is also required, and vice versa. It is further understood that nothing in article 1(2) precludes a Contracting Party from providing exclusive rights to a performer or producer of phonograms beyond those required to be provided under this Treaty. Concerning Article 2(b) It is understood that the definition of phonogram provided in Article 2(b) does not suggest that rights in the phonogram are in any way affected through their incorporation into a cinematographic or other audiovisual work. Concerning Articles 2(e), 8, 9, 12 and 13 As used in these Articles, the expressions ‘copies’ and ‘original and copies’ being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects. Concerning Article 3(2) For the application of Article 3(2), it is understood that fixation means the finalisation of the master tape (‘bande-mère’). Concerning Article 3 It is understood that the reference in Articles 5(a) and 16(a)(iv) of the Rome Convention to ‘national of another Contracting state’ will, when applied to this Treaty, mean, in regard to an intergovernmental organisation that is a Contracting Party to this Treaty, a national of one of the countries that is a member of that organisation. Concerning Articles 7, 11 and 16 The reproduction right, as set out in Articles 7 and 11, and the exceptions permitted thereunder through Article 16, fully apply in the digital environment, in particular to the use of performances and phonograms in digital form. It is understood that the storage of a protected performance or phonogram in digital form in an electronic medium constitutes a reproduction within the meaning of these Articles. Concerning Article 15 It is understood that Article 15 does not represent a complete resolution of the level of rights of broadcasting and communication to the public that should be enjoyed by performers and phonogram producers in the digital age. Delegations were unable to achieve consensus on differing proposals for aspects of exclusivity to be provided in certain circumstances or for rights to be provided without the possibility of reservations, and have therefore left the issue so future resolution. Concerning Article 15 It is understood that Article 15 does not prevent the granting of the right conferred by this Article to performers of folklore and producers of phonograms recording folklore where such phonograms have not been published for commercial gain. 11. 4. 2000 EN Official Journal of the European Communities L 89/23 Concerning Article 16 The agreed statement concerning Article 10 (on limitations and exceptions of the WIPO Copyright Treaty is applicable mutatis mutandis also to Article 16 (on limitations and exceptions) of the WIPO Performances and Phonograms Treaty. Concerning Article 19 The agreed statement concerning Article 12 (on obligations concerning rights management information) of the WIPO Copyright Treaty is applicable mutatis mutandis also to Article 19 (on obligations concerning rights management information) of the WIPO Performance and Phonograms Treaty