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)
Contents
Preamble
CHAPTER I: GENERAL PROVISIONS
Article 1: Relation to Other Conventions
Article 2: Definitions
Article 3: Beneficiaries of Protection under this Treaty
Article 4: National Treatment
CHAPTER II: RIGHTS OF PERFORMERS
Article 5: Moral Rights of Performers
Article 6: Economic Rights of Performers in their Unfixed Performances
Article 7: Right of Reproduction
Article 8: Right of Distribution
Article 9: Right of Rental
Article 10: Right of Making Available of Fixed Performances
CHAPTER III: RIGHTS OF PRODUCERS OF PHONOGRAMS
Article 11: Right of Reproduction
Article 12: Right of Distribution
Article 13: Right of Rental
Article 14: Right of Making Available of Phonograms
CHAPTER IV: COMMON PROVISIONS
Article 15: Right to Remuneration for Broadcasting and Communication to the
Public
Article 16: Limitations and Exceptions
Article 17: Term of Protection
Article 18: Obligations concerning Technological Measures
Article 19: Obligations concerning Rights Management Information
Article 20: Formalities
Article 21: Reservations
Article 22: Application in Time
Article 23: Provisions on Enforcement of Rights
CHAPTER V: ADMINISTRATIVE AND FINAL CLAUSES
Article 24: Assembly
Article 25: International Bureau
Article 26: Eligibility for Becoming Party to the Treaty
Article 27: Rights and Obligations under the Treaty
Article 28: Signature of the Treaty
Article 29: Entry into Force of the Treaty
Article 30: Effective Date of Becoming Party to the Treaty
Article 31: Denunciation of the Treaty
Article 32: Languages of the Treaty
Article 33: Depositary
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,
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:
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
(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 right holder, 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.
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 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.
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.
CHAPTER III
RIGHTS OF PRODUCERS OF PHONOGRAMS
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 right
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.
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.
(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;
(ii) to distribute, import for distribution, broadcast, communicate or make
available to the public, without authority, performances, copies of fixed
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.
(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.
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 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.
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 phonograms. In cases where authorization 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 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-mère").
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, 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.
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 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.
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."]