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ЧАСТЬ 6

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III. OTHER PROVISIONS OF THE NEW TREATIES

 

As discussed above, the most important role of the two new WIPO treaties is to give responses to the challenges of digital technology, particularly of the Internet. If the provisions related to the "digital agenda" had not been agreed upon, the adoption of the other provisions included in the two treaties would have hardly justified a three-week Diplomatic Conference and any new treaty. They are, in a way, of a complimentary nature.

 

For this reason, in the following, only a brief inventory is presented about those other provisions.

 

A. SUBSTANTIVE PROVISIONS OF THE WCT

 

1. Criteria of Eligibility

 

Article 3 provides for the mutatis mutandis application of the relevant provisions of the Berne Convention.{45}

2. Scope of Copyright Protection

 

Article 2 reproduces the principle included in Article 9.2 of the TRIPs Agreement, which, in turn, has always been understood in the same way by the countries of the Berne Convention: "Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such."

 



{45} An agreed statement was adopted to offer advice for certain aspects of such mutatis mutandis application, which reads as follows: "It is understood that, in applying Article 3 of this Treaty, the expression 'country of the Union' in Articles 2 to 6 of the Berne Convention will be read as if it were a reference to a Contracting Party to the Treaty, in the application of those Berne Articles in respect to protection provided for in this Treaty. It is also understood that the expression 'country outside the Union' in those Articles in the Berne Convention will, in the same circumstances, be read as if it were a reference to a country that is not a Contracting Party to this Treaty, and that 'this Convention' in Articles 2(8), 2bis(2), 3, 4 and 5 of the Berne Convention will be read as if it were a reference to the Berne Convention and this Treaty. Finally, it is understood that a reference in Articles 3 to 6 of the Berne Convention to a 'national of one of the countries of the Union' will, when these Articles are applied to this Treaty, mean, in regard to an intergovernmental organization that is a Contracting Party to this Treaty, a national of one of the countries that is member of that organization."

 



218            COLUMBIA-VLA JOURNAL OF LAW & THE ARTS            [21:3-4

 

3. Computer Programs and Compilations of Data (Databases)

 

Articles 4 and 5 contain clarifications concerning the protection of computer programs as literary works and compilations of data (databases). With some wording changes, those clarifications are similar to those which are included in Article 10 of the TRIPs Agreement. This is underlined by two agreed statements adopted by the Diplomatic Conference concerning those Articles, which state that the scope of protection for computer programs under Article 4 of the Treaty and for compilations of data (databases) under Article 5 of the Treaty "is consistent with Article 2 of the Berne Convention and on par with the relevant provisions of the TRIPs Agreement."

 

The only more or less substantive difference between Article 4 and 5 of the WCT, on the one hand, and Article 10 of the TRIPs Agreement, on the other, is that the provisions of the WCT use more general language. Article 10.1 of the TRIPs Agreement provides for the protection of computer programs "whether in source or object code," while Article 4 of the WCT does the same concerning computer programs "whatever may be the mode or form of their expression." It is understood that the scope of protection is the same under the two provisions, but the text of the WCT is less technology-specific. Similarly, Article 10.2 of the TRIPs Agreement speaks about "compilations of data or other material, whether in machine readable or other form," while Article 5 of the WCT, refers, in general, to "compilations of data or other material, in any form."

 

4. Right of Rental

 

Article 7 provides practically for the same protection for the right of rental in respect to (i) computer programs; (ii) cinematographic works; and (iii) works embodied in phonograms, as determined in the national law of the Contracting Parties, as Article 11 and 14.4 of the TRIPs Agreement (the same protection as under the TRIPs Agreement means, of course, also that, in respect to cinematographic works, the obligation to grant such a right is not of a general nature, and only extends to cases where commercial rental has led to widespread copying of such works, materially impairing the exclusive right of reproduction).

 

5. Term of Protection of Photographic Works

 

Article 9 assimilates the minimum term of protection for such works (which under Article 7(4) of the Berne Convention is 25 years) to the general duration (50 years) of protection under the Convention.

6. Application in Time

 

Article 13 provides for the application of Article 18 of the Berne Convention for the protection granted by the Treaty.

 

1997]            THE WIPO "INTERNET" TREATIES            219

 

7. Enforcement of Rights

 

Article 14 contains two paragraphs. Paragraph (1) is a mutatis mutandis version of Article 36(1) of the Berne Convention. It provides that "Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty." Paragraph (2) is a mutatis mutandis version of the first sentence of Article 41.1 of the TRIPs Agreement. It reads as follows: "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."

 

B. SUBSTANTIVE PROVISIONS OF THE WPPT

 

The WPPT includes five chapters: Chapter I: General Provisions (Articles 1 to 4); Chapter II: Rights of Performers (Articles 5 to 10); Chapter III: Rights of Producers of Phonograms (Articles 11 to 14); Chapter IV: Common Provisions (Articles 15 to 23) and Chapter V (to be discussed below).

 

1. Criteria for Eligibility

 

Article 3(2) and (3) refer to the criteria provided under the Rome Convention (Articles 4, 5, 17 and 18).

 

2. National Treatment

 

Article 4 provides for the same kind of national treatment as the one prescribed by Article 3.1 of the TRIPs Agreement concerning "related" (neighboring) rights, that is, national treatment only extends to the rights granted under the Treaty.

 

3. Coverage of the Rights of Performers

 

The coverage of the rights of performers is similar to the coverage of such rights under the TRIPs Agreement: it only extends to live aural performances and performances fixed in phonograms, except for the right of broadcasting and communication to the public of live performances, which under Article 6(i) extends to all kinds of live performances, not only to aural ones (as under the second sentence of Article 14.1 of the TRIPs Agreement).

 

It may emerge as a question for interpretation whether or not the right to authorize the fixation of unfixed performances under Article 6(u) extends to all kinds of fixations or only to fixations on phonograms. The text of the provision may suggest a broader coverage; if, however, the definition of "fixation" under Article 2(c) is also taken into account, a narrower interpretation is justified. According to the said definition, "fixation" only means "the embodiment of sounds, or the representation thereof from which they can be perceived, reproduced or communicated through a device (emphasis added)."

 

220            COLUMBIA-VLA JOURNAL OF LAW & THE ARTS            [21:3-4

 

Thus, Article 6(ii) seems to only extend to fixation on phonograms (as does the first sentence of Article 14.1 of the TRIPs Agreement).

 

4. Moral Rights of Performers

 

Article 5(1) provides as follows: "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." This provision, in main lines, follows Article 6bis of the Berne Convention (on the moral rights of authors) but it requires a somewhat lower level of protection: in respect of the right to be identified as performer, the element of practicability is built in, and the scope of "the right to respect" is also narrower. Article 5(2) and (3), on the duration of protection and the means of redress for safeguarding the rights, are mutatis mutandis versions of Article 6bis(2) and (3) of the Beme Convention.

 

5. Economic Rights of Performers

 

In addition to the rights related to the "digital agenda" (right of making available, right of distribution), the WPPT provides for practically the same economic rights for performers - broadcasting and communication to the public of unfixed performances (but in Article 6(ii) it is added: "except where the performance is already a broadcast performance"), right of reproduction and right of rental (Articles 6, 7 and 9) - as the rights granted in the TRIPs Agreement (Article 14.1 and 4). However, although he scope of the rights are practically the same, the nature of the rights (other than the right of rental) is different from the nature of such rights under the TRIPs Agreement, and also under Article 7 of the Rome Convention. While the Agreement and the Convention provide for the "possibility of preventing" the acts in question, the Treaty grants exclusive rights to authorize those acts.

 

6. Rights of Producers of Phonograms

 

In addition to the rights related to the "digital agenda" (right of making available, right of distribution), the WPPT provides the same rights for producers of phonograms - right of reproduction and right of rental (Articles 11 and 13) - as the rights granted under the TRIPs Agreement (Articles 14.2 and 4).

 

7. Right to Remuneration for Broadcasting and Communication to the Public

 

Article 15 provides practically the same kind of right to remuneration to performers and producers of phonograms as Article 12 of the Rome Convention (except that, while the latter leaves it to national legislation whether this right is granted to performers, to producers or to both, the former provides this right to both, in the form of a single

 

1997]            THE WIPO "INTERNET" TREATIES            221

 

equitable remuneration) and with the same extent of possible reservations as under Article 16.1(a) of the Rome Convention.

 

A specific feature of Article 15 is that its paragraph (4) provides as follows: "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."

 

The Diplomatic Conference adopted the following 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." This statement is a reference to the position that, in the case of certain near-on-demand services, exclusive rights are justified.

 

8. Transferability of Rights

 

The question of whether or not the rights to be granted under what was first referred to as the "New Instrument" and what became then the WPPT may be transferable was discussed several times. Finally, no provision was included in the WPPT on this issue. This, however, means that the Treaty - similarly to the Berne Convention and the WCT - does not contain any limitation on the transferability of economic rights. The transferability of economic rights is confirmed also by the introductory phrase of Article 5(1) on moral rights of performers which reads as follows: "Independently of a performer's economic rights and even after the transfer of those rights:." (emphasis added)

 

9. Term of Protection

 

Under Article 17, the "term of protection to be granted to performers 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." This term seems to differ from the term provided for in Article 14.5 of the TRIPs Agreement since the Agreement also refers to the year when the performance took place as an alternative starting point for the calculation of the term. In practice, however, there is no difference, since, in the case of an unfixed performance, the term of protection only has a theoretical importance.

 

The term of protection of phonograms, however, differs also in substance from the term provided for in the TRIPs Agreement. Under Article 14.5 of the Agreement, the 50 year term is always computed from the end of the year in which the fixation was made, while under Article 17(2) of the WPPT, the term is calculated from the end of the year in which the phonogram was published, and it is only in case of absence of publication that it is calculated as under the TRIPs Agreement. Since publication normally takes place after fixation, the term under the Treaty, in general, is somewhat longer.

 

10. Formalities

 

222            COLUMBIA-VLA JOURNAL OF LAW & THE ARTS            [21:3-4

 

Under Article 20, the enjoyment and exercise of rights provided for in the Treaty must not be subject to any formality.

 

11. Application in Time

 

Article 22(1), in general, provides for the mutatis mutandis application of Article 18 of the Berne Convention. Article 22(2), however, allows for Contracting Parties to limit the application of Article 5 on moral rights to performances taking place after the entry into force of the Treaty for them.

12. Enforcement of Rights

 

Article 23 contains the same provisions as Article 14 of the WCT quoted above.

 

C. ADMINISTRATIVE PROVISIONS AND FINAL CLAUSES

 

Articles 15 to 25 of the WCT and Articles 24 to 33 of the WPPT include more or less identical administrative provisions and final clauses which cover such issues as the Assembly of Contracting States, the International Bureau, eligibility for becoming party to 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 and depository.

 

These provisions, in general, are the same as, or similar to, the provisions on the same issues of other WIPO treaties. Only two specific features should be mentioned, namely the possibility of intergovernmental organizations to become party to the treaties and the number of instruments of ratification or accession needed for the treaties to enter into force.

 

Article 17 of the WCT and Article 26 of the WPPT deal with the eligibility for becoming party to the treaties concerned. Under paragraph (1), any member State of WIPO may become party to each of the treaties. Paragraph (2) provides that "[t]he Assembly may decide to admit any intergovernmental organization to become party to this Treaty which declares that it is competent in respect to, 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." Paragraph (3) adds the following: "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."

 

The number of instruments of ratification or accession needed for the entry into force of the treaties administered by WIPO has been fixed traditionally quite low; five is the most frequent number. The WCT and the WPPT, in Article 20 and Article 29, respectively, fix this number much higher, namely at 30 instruments of ratification or accession by States.

 

 

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