Guide to the copyright and related rights treaties administered by WIPO by WIPO

319 Pages·2012·1.22 MB·English

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For more information contact WIPO at www.wipo.int H A
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World Intellectual Property Organization O
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WIPO Publication No.891(E)
ISBN:978-92-805-1200-7
G C R R T
UIDE TO THE OPYRIGHT AND ELATED IGHTS REATIES
A WIPO
DMINISTERED BY
G C R R T
AND LOSSARY OF OPYRIGHT AND ELATED IGHTS ERMS

GUIDE TO THE COPYRIGHT AND RELATED RIGHTS TREATIES ADMINISTERED BY WIPO
TABLE OF CONTENTS
PREFACE 3
ACKNOWLEDGEMENT
INTRODUCTION
CHAPTER 1
GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE
BERNE CONVENTION FOR THE PROTECTION OF
LITERARY AND ARTISTIC WORKS (PARIS ACT, 1971)
CHAPTER 2
GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE
INTERNATIONAL CONVENTION FOR THE PROTECTION OF
PERFORMERS, PRODUCERS OF PHONOGRAMS AND BROADCASTING ORGANISATIONS (ROME CONVENTION,
1961)
CHAPTER 3
GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE
CONVENTION FOR THE PROTECTION OF PRODUCERS OF
PHONOGRAMS AGAINST UNAUTHORIZED DUPLICATION OF THEIR PHONOGRAMS (PHONOGRAMS CONVENTION,
1971)
CHAPTER 4
GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE
CONVENTION RELATING TO THE DISTRIBUTION OF PROGRAMME-CARRYING SIGNALS TRANSMITTED BY SATELLITE
(SATELLITES CONVENTION, 1974)
CHAPTER 5
GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE
WIPO COPYRIGHT TREATY (WCT, 1996)
CHAPTER 6
GUIDE TO THE SUBSTANTIVE PROVISIONS OF THE
WIPO PERFORMANCES AND PHONOGRAMS TREATY (WPPT, 1996)
CHAPTER 7
GLOSSARY OF COPYRIGHT AND RELATED RIGHTS TERMS
PREFACE
4 The oldest and most important international treaty on copyright, the Berne Convention for the Protection of Literary and Artistic
Works, has been administered by the World Intellectual Property Organization (WIPO) and its predecessor organizations, since
it was adopted in 1886. In the field of related rights, WIPO administers the Rome Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations (together with the United Nations Educational, Scientific and Cultural
Organization (UNESCO) and the International Labour Organization (ILO)),the Brussels Convention Relating to the Distribution of
Programme-Carrying Signals Transmitted by Satellite, and the Convention for the Protection of Producers of Phonograms Against
Unauthorized Duplication of Their Phonograms. The Organization also administers the latest international instruments in the
field of copyright and related rights, the WIPO Copyright Treaty (WCT) andthe WIPO Performances and Phonograms Treaty (WPPT),
the so-called “WIPO Internet treaties.”
Those treaties on copyright and related rights and the international protection system which they created have developed
over the years in dynamic response to economic, social, cultural, technological and political developments.
As the organization responsible for the administration of those treaties, one of WIPO’s principal tasks is to provide advice and
assistance to its Member States regarding the preparation and implementation of national legislation giving effect to them. In
this context, this new Guide seeks to clarify and explain the legal principles enshrined in the treaties, and their relationship with
policy, economic, cultural and technological considerations. We hope that it will be helpful to all stakeholders and interested
parties, notably governments, creators, businesses, the legal profession, academics, consumers and students, in all our Member
States, and that it will contribute to ensuring a secure, prosperous and conducive environment in which more and better
products and services, dependent on the respect and protection of copyright, will be made available to more people in all
parts of the world.
This Guide was commissioned by WIPO and written by Dr. Mihály Ficsor, an internationally renowned expert in the subject
matter. The views expressed in the Guide are those of Dr. Ficsor and do not necessarily reflect those of the Organization.
I would like to express our deep appreciation for the important contribution made by Dr. Ficsor, in writing this Guide, to a
better understanding of the role of copyright and related rights for economic, cultural and social development.
Geneva, November 2003.
Kamil Idris
Director General
World Intellectual Property Organization
ACKNOWLEDGEMENT
I would like to thank WIPO and its Director General, Dr. Kamil Idris, for the opportunity of writing this book for the Organization. 5
It is an honor that this Guide will join those written by the late Mr. Claude Masouyé – the then-Director of the Copyright and
Public Information Department of WIPO – to the Berne Convention1 and to the Rome and Phonograms Conventions.2
However, this new Guide and its Glossary constitute a completely new publication and is not an update or adaptation of those
previous publications or of the “WIPO Glossary of Terms of the Law of Copyright and Neighboring Rights.”3
My special thanks are also due to those members of the WIPO Secretariat who have contributed to the realization of this book.
It should be noted that, although I have tried to base the analysis in this publication as much as possible on official sources
(records of diplomatic conferences, WIPO documents, etc.), I have also added my own views on many aspects – these views
do not necessarily reflect the position of WIPO.
Mihály Ficsor
1. WIPO publication No. 615(E), 1978.
2. WIPO publication, No. 617(E), 1981.
3. WIPO publication, No 816 (EFS), 1980; according to the Introduction, it was “essentially the work of Dr. György Boytha.”
INTRODUCTION
6 OBJECTIVE, STRUCTURE AND STYLE OF THE BOOK
1. This book is composed of eight parts: this Introduction, six guides (to four conventions and two treaties administered by
WIPO) and a Glossary.
2. The objective of the guides is to offer an analysis of the substantive provisionsof the copyright and related rights treaties
administered by WIPO: namely, the Berne Convention, the Rome Convention, the Phonograms Convention, the Satellites
Convention, the WCT and the WPPT. The analysis does not extend to the administrative and final provisions of these
instruments. Nevertheless, for the sake of completeness and ready availability, the latter provisions are also reproduced in the
guides.
3. This Introduction contains a brief review of the historical development of international norms on copyright and related rights
and a description of the relationship between the various instruments. The book does not contain lists of the countries and
other possible entities party to these instruments, since such lists are available in an up-to-date form on WIPO’s website
(www.wipo.int).
4. In order to offer a description of the historical development of international copyright and related rights norms as well as
the relationship between them, this Introduction also deals briefly with two international instruments that are not
administered by WIPO; namely, the Universal Copyright Convention (UCC) administered by the United Nations Educational,
Scientific and Cultural Organisation (UNESCO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS Agreement) which is one of the agreements to which every country or other entity becomes party upon accession to
the World Trade Organization (WTO). Although these latter instruments are not analyzed in the form of guides, at various
points in the analysis of the WIPO-administered treaties, reference is made to certain provisions of the TRIPS Agreement (not
to the UCC, however, whose importance is diminishing – for the reasons given below). The text of the relevant norms is not
reproduced (the TRIPS Agreement is available on the website of the WTO (www.wto.org)).
HISTORICAL BACKGROUND
5. What exists now as the international system of copyright and related rights protection has grown from bilateral agreements
concluded mainly – although not exclusively – between European countries in the 19thcentury (at that time, only in respect
of copyright, since related rights only came into being in the 20thcentury). The bilateral agreements were, in general, based
on the principle of national treatment combined with some minimum obligations. This kind of structure for international
agreements in the field of copyright and related rights – that is, the obligation of granting national treatment to the nationals
of the other contracting party, or contracting parties, combined with the minimum level of protection that each contracting
party must grant to such nationals irrespective of the protection granted to its own nationals – has remained typical since then.
6. Such a structure became necessary due to the differences between the various national systems, not only as to the level of
protection granted but also from the viewpoint of the legal philosophy on which they had been based. From the very
beginning of the existence of national legislation on copyright, there were two fundamentally differing systems; namely, what
are now referred to as the common law and the civil law systems.
7. The common law system relative to copyright grew out of printing privileges granted by English monarchs. It was Queen
Anne who brought about the Copernican turn in this area in 1709/17104when she gave the right to authorize the printing
(copying) of their works to the authors themselves. Under this system, it is not the relationship between the author and his
work, but the work itself, as a product, that is the central element of protection. The objective of the protection granted is to 7
offer appropriate incentives for further creative activity. It is conceptualized as a kind of agreement between society and the
authors: if you create, you may make available your works to the public since you will enjoy protection for a limited time.
8. The civil law system has more than one root, but the most decisive one goes down as deep as the time of the French
revolution, when authors’ rights in their literary and artistic works were recognized, at least partly, on the basis of a “natural right
approach.” The rights in such works were regarded “as the most saint” property” (la propriété la plus sacrée) of their authors,
since such works were considered as the products of the human mind and, therefore, as expressions of the personality of their
authors. Many differences have followed from these two philosophies which are still present in the copyright systems based
on them. These differences concern such fundamental issues of copyright as authorship, the concept of “work”, the originality
test, the borderline between copyrightper se and related rights, original ownership, and the transferability of economic rights.
In addition to the differences related to the underlining philosophies, there are others, since countries developed their
emerging copyright legislation independently.
9. These differences were manifested in various and increasingly numerous bilateral agreements. In the second part of the 19th
century, their number and complexity reached such a level that it inevitably led to the idea that it would be better to replace
them with one single convention to which all the previous bilateral partners might become party. The bilateral agreements
offered certain legal techniques and models, but, of course, the task of working out a multilateral instrument was more
complex, and the preparation of norms intended for worldwide application also made it desirable to try to establish as solid a
legal-philosophical foundation as possible. The preparatory work necessary for the establishment of a convention to satisfy
these requirements was started and brought very close to conclusion by the International Literary and Artistic Association
(ALAI) during several of its congresses.
10. It was at the request of the ALAI that the Swiss Confederation convened three subsequent Diplomatic Conferences in
Berne in 1884, 1885 and 1886, at the third of which the Berne Convention for the Protection of Literary and Artistic Works was
adopted. The Convention was based on the principle of national treatment, but also fixed a minimum level of protection
which all the member countries of the Union (established by it from the contracting parties) had to grant to the nationals of
other member countries.
11. The substantive provisions of the Berne Convention were revised several times between 1896 and 1971. The Diplomatic
Conferences that took place in Paris in 1896, in Berlin in 1908, in Rome in 1928 and in Brussels in 1948 dealt, to a great extent,
with technological advancements – such as the advent of phonography, that is, the making of phonograms or sound
recordings, photography, radio and cinematography – but also to the internal development of the law of copyright (which
had led, for example, to the recognition of moral rights, to the abolishment of formalities as conditions of protection and to
the establishment of a minimum term of protection). As a result of this, the 1948 Brussels Act of the Convention already
contained quite detailed regulation on all the important aspects of copyright protection.
12. In the 1950s and 1960s, the Berne Convention received “partners” in the protection of cultural achievements at the
international level. First, a new international copyright convention was adopted and then also a convention for the protection
of related rights (or, as they were still called at that time, “neighbouring rights”).
13. The Universal Copyright Convention (UCC) was worked out and adopted under the aegis of UNESCO in 1951. This took
place mainly on the initiative of the United States of America, which, due to certain specific features of its legislation (such as
the existence of formalities as conditions of protection and a complex regulation concerning the term of protection of
copyright not fulfilling the requirements of the Berne Convention) was not able to accede to the Berne Convention. Several
8 Latin American countries shared this initiative since they were not members of the Berne Convention, but rather had
established conventions between themselves and with the United States of America. When the level of protection required
by the UCC was fixed, account was taken of the fact that the process of decolonization had already started and it seemed
evident that the emerging newly independent countries – later called “developing countries” – would hesitate to accede to
an international treaty that would require immediately a system with a high level of protection. The various criteria that had
to be taken into account led to the adoption of a convention that differed in many important aspects from the Berne
Convention. The UCC only contained some quite general obligations concerning the rights to be granted, and it allowed the
application of formalities (but simplified their fulfillment for other countries party to the UCC by providing that the indication
of a simple standardized copyright notice was sufficient).
14. The other new “partner” for the Berne Convention – and the UCC – was the International Convention on the Protection of
the Rights of Performers, Producers of Phonograms and Broadcasting Organizations, adopted in Rome in 1961 under the joint
aegis of BIRPI (the predecessor organization of WIPO), UNESCO and the International Labour Organization (ILO). The need for
protection for these “new” categories of beneficiaries had emerged as a result of technological developments. Already,
phonography had raised problems for performers, which were then further aggravated by ever-more numerous radio
programs and the advent of television. The phonograms embodying performances and the radio and television transmissions
of both such phonograms and live performances appeared as dangerous competitors which undermined the employment
opportunities for many performers. Thus, it was legitimate from their viewpoint to demand that they be granted adequate
rights – right of authorization or at least a right to remuneration – in respect of such “competitor” activities. It was also
understandable that phonogram producers required protection against the unauthorized copying of their phonograms.
Finally, broadcasting organizations also joined the first two groups of interested parties in demanding protection for their
broadcast programs against unauthorized rebroadcasting, protection which seemed to be necessary for them in particular
with respect to those elements of their programs (such as transmissions of certain events on an exclusive basis) the protection
of which was not guaranteed by copyright.
15. The first idea was to try to grant protection for these objects and new beneficiaries under the copyright system, and this
issue was also discussed at some of the revision conferences of the Berne Union. In fact, several countries – mainly those that
followed the common law tradition – applied, and some of them still apply, this solution. However, this was not found to be
acceptable in general, and this recognition then led, after a long period of preparatory work, to the working out and the
adoption of the Rome Convention.
16. The Rome Convention has been characterized as a “pioneer convention,” since at the time of its adoption, the legislation
of only very few countries provided for specific rights for the three categories of beneficiaries it covered. This was also the
reason for which, in addition to the obligation to grant national treatment as under the Berne Convention, the minimum
obligations under the Rome Convention were fixed at a relatively low level (in general, much lower than that prescribed in the
Berne Convention).
17. The number of countries party to the Rome Convention has grown slowly. One of the main reasons for the limited
adherence was the fact that countries following the common law tradition were not interested in acceding to the Convention
since they were of the view that phonograms and broadcasts were already eligible for copyright protection. In respect of
related rights, for some time there was no movement towards working out a “bridging convention” similar to the UCC in the
field of copyright (this only took place with the drafting and entry into force of the TRIPS Agreement and the WPPT). However,
technological developments constrained countries following differing legal traditions to unite their efforts and jointly solve at
least certain urgent questions. This led to the adoption of two new conventions, namely the Phonograms Convention and
the Satellites Convention.
18. The Phonograms Convention became necessary because new, more easily applicable reproduction techniques were 9
leading to increasingly widespread piracy of phonograms. The objective of the Convention, which was adopted after very
quick preparatory work in Geneva in 1971, was to offer protection exclusively against this menacing phenomenon. It does not
provide for any specific rights; it only identifies the most dangerous acts related to phonogram piracy and obligates
contracting parties to grant appropriate protection against them, at the same time, it allows great freedom in respect of the
legal techniques through which this obligation is fulfilled.
19. The Satellites Convention, adopted in Brussels in 1974, may also be regarded as an anti-piracy treaty. Its purpose was to
provide protection against piracy of “programme-carrying signals” transmitted by telecommunication satellites. Like the
Phonograms Convention, it is very flexible; it leaves contracting parties the freedom to choose the legal means through which
protection is granted. However, only relatively few countries have acceded to the Satellites Convention, because of its narrow
coverage. Its application has not been extended to direct broadcasting satellites, and, in the meantime – with the increase in
the capacity and power of telecommunication satellites and the growing possibility for consumers to pick up signals directly
– increasing numbers of satellites are falling outside the protection of the Convention.
20. In the meantime, the last two revisions of the Berne Convention also had taken place, in Stockholm in 1967 and in Paris in
1971. They are frequently referred to as "twin revisions" for the following reasons. By 1971, only the administrative provisions
and final clauses of the Stockholm Act (which related to the administrative reform of the Convention in connection with the
transformation of BIRPI into WIPO) had entered into force, and it had become clear that its substantive provisions (Article 1 to
21 and the Protocol) would not be ratified by a sufficient number of countries. Those substantive provisions, with the exception
of the Protocol, were then included, without any substantive changes, into the Paris Act. The latter brought about real changes
in only one respect, namely replacing the Protocol with a renegotiated Appendix (serving the same purpose – to offer
preferential norms in favor of developing countries – but at a different level).
21. At the 1967 Stockholm revision conference, in addition to certain other modifications of the text (which may be
characterized as legal-technical improvements), the more important amendments took place in respect of two groups of
issues: first, those concerning the rights in audiovisual works, and the original ownership, exercise and transfer of those rights,
with certain related presumptions; second, those that developing countries had raised (which, as a result of the acceleration
of the decolonization process around the beginning of the 1960s, were represented in a much greater number than in any
previous diplomatic conference). Two particular issues of major concern had been raised by these countries. The first was the
protection of folklore creations, while the second concerned the specific needs of those countries for easier access to works
needed for education, scientific activities and research. The Diplomatic Conference ended with the understanding that both
these issues had been settled. This was not, however, the case. As discussed in the commentary to Article 15(4) of the Berne
Convention, below, the provision which, it was alleged, offered protection for artistic folklore was not suitable to solve this
issue. The Protocol to the Stockholm Act – which was an integral part of the substantive provisions of that Act – was much
more promising from the viewpoint of developing countries, since it provided for the possibility of compulsory licensing under
fairly favorable terms. Indeed, in the opinion of the publishers of certain industrialized countries – the accession of which to
the Stockholm Act had been fixed as a specific condition in the text adopted – these terms were too favourable. Their opinion
had prevailed, the necessary accessions had not taken place and, for this reason, the substantive provisions of the Stockholm
Act had not entered into force.
22. The 1971 Paris revision conference of the Berne Union had been convened due to the above-mentioned failure, and – as
mentioned before – the only substantive change it brought about in the text of the Berne Convention was the replacement
of the Protocol with an Appendix, acceptable to all interested parties. Otherwise, the substantive provisions of the Stockholm
Act (Articles 1 to 20) were simply reproduced in the new act without any change (that is the reason for which – as mentioned