(Document prepared by the chair of the Authors’ Rights Expert Group of the EFJ, Anne Louise Schelin for the summit meeting: “Authors’ Rights for All” in June 2000)
Issues to be Dealt with at the Global Level: The Major
Players and the Two Competing Systems
Growing awareness of the importance of immaterial rights is due to both the explosive expansion in the economy created through sale of these rights and the recognition of the cultural significance of protecting the works and performances that are the basis for this booming economy.
In the field of audio-visual works (but also in other areas) the USA and the UK have a well-established industry and are leaders of the market, with a huge export of entertainment and other cultural products. Canada, Australia and Japan more or less follow the pattern of the USA and the UK.
Europe wishes to effectively compete with these players, not only to benefit the European economy but also in order to preserve and develop the European cultural heritage.
The differences between the Anglo-American system of copyright and the continental European system of authors’ rights have become an obstacle to both parties and are, therefore, at the top of the agenda whenever and wherever these matters are discussed.
Developing countries are not idle bystanders in this debate. They, too, have a lot at stake and have a keen interest in the outcome of the attempts at global harmonisation.
a) The Continental European Approach
There are many differences in legislation concerning authors’ rights within the countries of Europe. The description below should therefore be seen as a general characterisation of the authors’ rights system of Continental Europe.
Moral Rights Originate with the Author and Cannot be Waived
The Continental European system of authors’ rights recognises as its basic concept that the author cannot waive the moral rights (the right to be named the author and the right of protection against distortion, mutilation or other modification of or other derogatory use of the work). So, even if an author signs over all his or her rights, the moral rights still apply. In most European countries this is modified within the law or in court practice so that modifications of a very limited nature that the author has agreed to by contract will be considered valid.
Economic Rights Originate with the Author and Can be Transferred
The exclusive rights (the economic rights) can be transferred from the author by contract or in the case of legal exemptions or legal licenses by law.
This is also the case for authors who create their works in the course of employment. In many European countries (for example, the Nordic countries) transfer of rights from the employed author to the employer is a contractual matter. Even if the individual or collective agreement does not mention the transfer of author’s rights, the rights are transferred by tacit agreement to the extent necessary in order for the employer to conduct his normal publishing or other business. This means that the remaining rights (f.ex. the rights of resale to third parties) remain with the employed author until he or she might license such use. In some countries the law prescribes this presumption of transfer. In the Netherlands, employed authors retain no rights unless otherwise stated by contract.
Employed Authors of Computer Programs are the Exception
Where authors of computer programs are concerned, the European Union directive on computer programs decrees that in regular employment all rights are transferred to the employer, unless otherwise stated by contract. This is a special and specific exception to the general rule, and the directive still recognises the fact that all rights originate with the author. The employed authors of computer programs have no moral rights (unless otherwise stated by contract). This exception is a major deviation from the basic concept and has been prompted by the fact that very often many employees are involved over a long period of time in the highly technical processes that go into involved in the creation of computer programs.
Freelances and Authors Who Work for Hire
Freelances and authors who work for hire transfer their rights by written contract or tacit agreement. The extent of the transfer is decided through legal interpretation of the agreement in question. Unless the fee is exceptionally high the court will come to the conclusion that no more rights have been transferred than those necessary for the obvious purpose of the agreement and which the court deems to have been presupposed by the contracting parties.
Are Online Uses Covered and Included?
The question of whether online use is included when, for example, a freelance journalist delivers an article to a newspaper against a normal free for one publication in print has been decided in extensive court practice in favour of freelances. This is the case in Germany, France, the Nordic countries, Belgium, Austria, The Netherlands and several other European countries.
However, the outcome is not certain if the freelance author has sold articles or other works for publication in a newspaper or magazine that is well known to be published both in print and online. If he or she has done this for a period of time and has accepted the normal fee throughout this period, even though it was easy to ascertain that the article was also published online, such passivity in connection with tacit agreements can cause loss of rights.
Collective Licensing and Collecting Societies in Europe
Another benchmark of the Continental European system is the widespread tradition of collective licensing through collecting societies, which enables authors (and performers) to manage their rights alone or in conjunction with publishers and producers. Using such systems, very considerable sums are collected from cable retransmission, private copying, reproduction for information purposes in schools, colleges and universities, private and public companies etc.
The collecting societies distribute the collected fees to authors, performers, publishers and producers who have created or acquired rights to the works in question.
It is the aim of the collecting societies to secure foreign rights holders their fair share of the collected fees through world-wide retroactive agreements. However, setting up a fair system is difficult because of the different legal systems, particularly in the USA and in Europe.
In the USA, authors and performers typically sign over all their rights. Thus, the few collecting societies within the USA are dominated by publishers and producers. Furthermore, European authors and performers find it difficult to accept the fact that fees collected for authors and performers by European collecting societies are sent to the USA to benefit only publishers and producers.
The Rights of Performers
Performers are not authors and therefore not directly comprised by authors’ rights. The rights of performers are considered to be “neighbouring rights”. In many European countries performers have been given almost the same high protection as authors, moral rights included.
Publishers and Producers also have Neighbouring Rights
In order that publishers and producers may protect their investments they have been granted rights to protect against unauthorised copying of TV programmes, sound recordings, films, catalogues and databases. These rights coexist alongside and independent of the exclusive rights of authors and neighbouring rights of performers.
b) The Anglo-American Copyright System
There are quite a few differences between the USA and the UK legislation on copyright. The same holds true for other countries that basically adhere to the copyright system. The following description is an attempt at highlighting some characteristic traits.
The Rights of Authors Are Seen as Property Rights
The moral rights of authors can be fully waived by authors in the UK. If an author has done this, but has not made it a condition that he or she is named, nor stipulated that the work may only be used in a certain manner or context, then it is solely up to the new holder of the rights to decide whether or not the author is acknowledged or how the work is used.
Work for Hire
Under the copyright system authors are, in principle, considered to be the first owners of copyright. However, when an employee in the course of his or her employment, under a contract of service or apprenticeship, creates a protected work, the employer is the first owner of the entire copyright in the work.
In the USA Copyright Act of 1976 a work made for hire is defined as “a work prepared by an employee within the scope of his or her employment, or a work specially ordered or commissioned for use … if the parties expressly agree in writing that the work shall be considered a work made for hire.”
In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
The UK Copyright Act distinguishes between those who work “under a contract of service”, however temporary it is, and those who work “under a contract for services (independent contractors)”. In the first instance, the first owner of the rights is the employer. In the second instance, the first owner of the rights is the author.
The Rights of Performers
Performers have no legislative copyright protection in the USA. The USA has not ratified the Rome Convention and there are no provisions concerning performing artists in the USA Copyright Act. However, after years of hard struggle, performers in the USA have achieved a tolerable level of protection through collective agreements and contractual practices.
Publishers and Producers
Under the terms of the USA Copyright Act, publishers and producers are not granted independent protection. They own the first rights of their employees and the rights of those who otherwise work for hire. They also own the rights that they acquire from freelance authors or other rights owners.
Legislation in countries that adhere to the copyright system does not incorporate rules on collective licensing, either compulsory or non-compulsory. In these countries what is deemed “fair use” is free use (with no remuneration to rights owners). If a use is not “fair use” it must be authorised and the rights owner can claim payment in return for his or her authorisation. Due to provisions in the EU directives on lending and renting rights and cable and satellite, The United Kingdom, Ireland and the Netherlands have been comprised by legislation that prepares the ground for collecting fees through collecting societies.
There are some collecting societies in countries that adhere to the copyright system. These societies demand payment from other collecting societies throughout the world (not least from Europe), on behalf of the rights holders that they represent, and they also administrate private collective licensing schemes. Their cash-flow is diminutive in comparison, for example, with the collecting societies of the Nordic countries and Germany.
Differences Between the Two Systems that Count
The fact that moral rights (to the extent that they are recognised at all) can be fully waived by the author, the work for hire doctrine and the principles of fair use constitute the major obstacles to harmonisation between the copyright system and the Continental European system of authors rights, both within the EU and globally.
It also causes difficulties for global harmonisation and the administration of the principle of national treatment in the Berne Convention that rights in general are administrated by producers and publishers in the countries that adhere to the copyright system. In Continental Europe there is a strong tradition of collective management on behalf of authors and performers (also jointly with producers and publishers).
Another major difference is that the copyright system, which has its roots in common law countries, is based on contractual practice. The legislation on authors’ rights in Continental European countries regulates many general questions, so that one only requires a detailed contract if one wishes to deviate from the general rules.
The necessity of hiring lawyers to draft a contract, to be sure of one’s rights, is another factor which tips the balance in favour of the producers and publishers in the countries that adhere to the copyright system.
Harmonisation within the European Union
There is a short summary in Appendix One (below) of the classical international conventions on the rights of authors, performers and producers. (The Berne Convention, the Rome Convention, the Phonogram Convention and the two new WIPO treaties).
The following will concentrate on the more recent steps towards harmonisation at the regional and global level.
The directives on authors’ rights and related rights
Five directives have been adopted by the EU, harmonising various aspects of authors’ rights and neighbouring rights. These cover:
• the legal protection of computer programs
• rental rights, lending rights and certain rights related to copyright in the field of intellectual property
• copyright and related rights applicable to broadcasting of programmes by satellite and cable retransmission
• the term of protection of copyright and certain related rights
• The legal protection of databases.
A proposed directive on the harmonisation of certain aspects of copyright and related rights in the information society is close to final adoption.
These directives have highlighted the conflicting standards between the copyright system and the Continental system. This is also underlined by the fact that EU member countries UK, Ireland and, to some extent, the Netherlands adhere to the copyright system. Additionally, EU producers and publishers want the work-for-hire concept to be recognised in EU law and are also requesting that moral rights be fully waiveable.
Furthermore, it is a declared goal of the producers and the publishers to use such added strength to acquire all present and future rights from authors and performers, thereby claiming sole administration of these rights, ensuring the end of collective licensing and (joint) collecting societies (where fees must be shared with authors and performers).
Battle Joined at the Onset of the Information Society
In the first half of the 1990s, when visions of the World Wide Web and the Information Society became a hot topic the world over, many people felt that copyright systems would not be able to survive, especially the Continental European system of authors’ rights which was thought of as old-fashioned and out-of-date.
European publishers and producers vigorously lobbied the European Commission and claimed that Europe would be completely unable to compete with the rest of the world, and in particular the USA, if authors’ rights legislation was not harmonised to the level of the copyright system.
These views found many supporters and it took years of lobbying by authors and performers, legal experts and others to shift this perception. But the European Commission and the European Parliament have acknowledged that moral rights are important for the sake of authenticity, quality, high standards and to help preserve the European cultural heritage. EU Member States have been left free to decide for themselves whether they wish to adopt statuary transfer of rights or legal presumptions of transfer where employed authors or authors who otherwise work for hire are concerned.
The politicians of EU both at the national and EU level were also influenced by the report of the White House Information Infrastructure Task Force Working Group on Intellectual Property Rights. The report clearly states that what is needed is better protection – not less. The report also puts emphasis on the need to protect the rights of the creators in order to stimulate the production of high quality content.
The Continental system survived
In this respect the EU directives, including the proposed directive on the harmonisation of certain aspects of copyright and related rights in the information society, represents a victory for the Continental European system. However, these directives have not solved the problems of the
authors and performers of the UK, Ireland and the Netherlands who are left with completely inadequate protection.
Major unsolved problems
The major differences between the systems in the protection of moral rights and in creating a balance of bargaining power between authors and performers on the one side and publishers and producers on the other causes unfair competition and distorts the single market.
It is equally important to lobby within the EU for the harmonisation of legislation on which specific types of work should be protected and, if at all possible, eliminate the possibility of national legislation similar or identical to the work-for-hire doctrine.
Efforts to convince the EU Commission of the necessity of harmonising moral rights at the highest continental level (as described above at 1.5), have not, thus far, led to concrete results.
The TRIPS Agreement (Harmonisation at WTO level)
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement was concluded in December 1993 as part of the Uruguay Round of negotiations under the former GATT - now the World Trade Organisation (WTO).
The TRIPS Agreement is a trade agreement, but it also contains provisions on the protection of authors’ rights. It provides that member countries shall comply with Articles 1 to 21 of the Berne Convention. These are the substantive provisions of the Berne Convention with one major exception: the Agreement states that no rights of obligations are created in respect of moral rights. (See the summary on the Berne Convention in Appendix 1.)
The TRIPS Agreement requires of member states that computer programs are protected as literary works and that compilations of data shall be protected as original creations, provided that they meet the criteria of originality by reason of the selection or arrangement of their contents. The Agreement also provides a right in respect of commercial rental of copies of computer programs and audio-visual works.
The TRIPS Agreement also contains detailed provisions on the enforcement of intellectual property rights and a mechanism has been implemented in the agreement concerning the settlement of disputes among countries that are comprised by the Agreement.
The fact that the TRIPS Agreement was promulgated can be perceived as a victory for the countries which adhere to the copyright system (and producers and publishers). Authors and performers do not want the harmonisation of authors’ rights to take place within trade related fora. These questions should be dealt with by the World Intellectual Property Organisation (WIPO).
Harmonisation in the new WIPO Treaties (WCT and WPPT)
Technological and commercial developments following the last revision of the Berne Convention in 1971 led to the recognition in the 1980’s that new binding international norms were required in response to the questions raised by digital technology and, particularly, the Internet.
This led to the adoption of two new treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), at a Diplomatic Conference held in December 1996.
Both treaties contain common rules for defining the exclusive rights in the digital environment and are, therefore, necessary and important additions to other international Conventions including the Berne Convention.
Neither of the new treaties contains provisions which lower the level of protection afforded by the Continental European system. Nevertheless, nor do they bridge any of the significant differences between the two systems. The USA and the UK continue to be allowed to uphold their respective legislative systems.
In the USA, the WCT and WPPT Treaties have afforded authors and performers Phonograms, a better legislative protection. The treaties were implemented in USA law through the Digital Millennium Copyright Act in October 1998.
The 1996 Diplomatic Conference was unsuccessful in reaching an agreement on a treaty on the rights of performers in the audio-visual field. This work is on-going and is mentioned at 2.1 below. The same situation holds for the protection of databases and rights of broadcasters
As stated above WIPO is the proper forum for global harmonisation of authors’ rights. Before the success of the December 1996 Diplomatic Conference, when the WCT and the WPPT Treaties were concluded, the TRIPS agreement under GATT (now WTO) had drawn global harmonisation towards the trade arena. Continuing
along this course at the 1996 Diplomatic Conference would have favoured the copyright system that recognises copyright purely as a trade object.
Campaigning for Better Legislation
Protection of performers’ rights in their audio-visual performances
By summer 2000 WIPO will have decided whether or not there is a basis for establishing a Diplomatic Conference by the end of the year in order to try to reach a compromise on a treaty on the rights of performers in the audio-visual field.
As mentioned before, the USA Copyright Act does not cover performers (except within the Digital Millennium Copyright Act of 1998). The USA does not want to afford moral rights to performers in the audio-visual field at the level of the WCT and WPPT.
All questions of moral and economic rights, royalties, etc., are regulated through collective agreements and contracts. Negotiations concerning a possible treaty on the rights of performers in the audio-visual field have been and will continue to prove difficult.
The USA has also put forward proposals for transfer of rights similar to the work-for-hire doctrine which the EU and respective nations in Continental Europe have adamantly rejected. Performers in Europe would rather have no treaty than one that offers a lower level of protection of moral rights than most have already. This view also holds for any treaty that would include a clause on transfer of rights in favour of the producers.
In order to bridge these difficulties various other solutions have been suggested. Canada has submitted a proposal that requires Treaty Members to recognise transfer of rights by operation of law and transfers by contract from other Treaty Member countries. The adoption of the proposal would mean that performers in the USA, Canada and other countries with similar legislative and contractual practises would not receive better protection. Their positions would be unaltered.
The USA has submitted a new proposal concerning the principle of national treatment in the Berne Convention, which will allow countries with collective administration of exclusive rights to refuse remuneration to non-national performers if the collecting society does not collect fees on behalf of non-nationals.
The EU has forwarded a submission in which the EU underlines that the protection of audio-visual performances should be updated and modernised and that this should be undertaken at the level of the WPPT. The EU points out that this new treaty should not introduce rules which may be alien to existing domestic and international frameworks, such as on the transfer of rights or national treatment.
The EU also states that the whole point of the treaty is to upgrade the protection of audio-visual performers – not the protection of audio-visual producers.
The EU also declares in the submission, a willingness to move ahead towards a, hopefully, successful Diplomatic Conference in December 2000. The outcome of such a conference will have considerable significance not only for performers but also for authors. Therefore, great effort should be made to support performers’ organisations in their lobbying. There is also a need to keep a keen eye open for possible negative effects that compromises in connection with this treaty could have in other fields. There is a real danger of this when addressing proposals on moral rights, transfer of rights and national treatment.
Standing Committee on Copyright and Related Rights
The work of this committee should also be followed closely. As soon as the December 2000 Diplomatic Conference on performers’ rights in the audio-visual field is at an end, new attempts will be made to bridge the differences between the two major systems.
In this process it is of the utmost importance for the supporters of the Continental European system of authors’ rights to be able to prove that the system works – not just for authors and performers – but also for the economy and the ability to compete world-wide.
It is also important to be able to exemplify that in practice the two systems are not that far apart, but that the remaining differences should be removed by altering the copyright system – not the Continental European system.
Another very important point to convey is that the authors’ rights system is better suited for the development of democracy, the rights and obligations of the individual, and provides the individual with a better basis for upholding high standards of quality and ethics.
b) World Trade Organisation (TRIPS)
It is important to pay close attention to initiatives concerning the TRIPS Agreement and to be prepared to actively oppose new trade initiatives in the field of immaterial rights of authors and performers (See above).
C) European Union
Unless the system of authors’ rights is actively supported by the EU and EU legislation and by the EU in WIPO, the system will not survive. As the Continental European level of legislative protection of the rights of authors and performers is the highest in the world, it is in the best interests of everyone – including authors and performers outside of Europe – to focus attentive lobbying on the EU.
This is a fact of which publishers and producers world-wide are very much aware. There is no hearing or open meeting within the EU in which one does not meet many USA producers, lawyers and other international lobbyists. The entertainment and information industry spends enormous sums in order to exert continuous influence on the political and administrative processes within EU.
The fight for the work-for-hire principle and the hopes of producers and publishers that added competition will tip the balance of power in favour of a lower level of protection in the UK, Ireland and the Netherlands has by no means ended.
Besides counteracting the lobbying of the producers and publishers, authors and performers have their own agendas. At the top of their agendas is the strong wish for moral rights to be harmonised at the high Continental European level. Top priority must also be given to the harmonisation of definitions of protected works, etc. These points are essential in order to raise the level of protection, especially in the UK, Ireland and the Netherlands.
In fact, there is a real need to strive even further. Even in countries where authors’ rights protection is the highest, freelance authors are finding it impossible to exert their rights because of the overwhelming monopoly global companies have in the present online environment in making news, entertainment and culture available to the public.
Thus far, authors and performers have thought it sufficient to combat proposals for presumptions of transfer of rights in favour of publishers and producers, thereby upholding the right of free negotiation.
If authors and performers are to be able to exert their rights and thereby preserve some little influence on the future uses of their work in the online environment, freelances should be covered by a legal presumption in their favour. Such a rule must ensure that the rights remain with the freelance unless otherwise clearly specified by contract. Furthermore, employed authors and performers must be free to negotiate and not be hampered by rules of presumption in favour of publishers and producers who are by far the stronger party.
For all of these reasons it is important that the national and international organisations representing authors and performers become more sophisticated at co-ordinating their lobbying efforts and their resources.
Co-ordinating Effort and Convincing Allies
The IFJ has taken an initiative to form a Creators’ Forum inviting participation by representatives of all major international organisations representing authors and performers. Two meetings have been held and another will be planned during the conference, Authors’ Rights for All - Summit 2000.
One suggestion that has arisen at these meetings recommends that relevant organisations meet and confer before attending important international meetings at the WIPO, EU etc. Another proposes that we call meetings when matters arise on the authors’ rights scene that urgently call for action, whether they concern new legislation or contractual struggles.
The Summit 2000 Web Site and the work in connection with following up the conference will be a significant step in this direction.
Convincing the population (and thereby consumers and, hopefully, also politicians) of one’s own country is perhaps the most important step of all. In this respect it is encouraging to observe the campaigning activities of authors and performers in the USA and the UK. That the campaigns are effective is illustrated by the following citation from Gerald Dworkin (King’s College, University of London) who, in his paper ”The Exercise and Waiver of Moral Rights: The International State of Play” (April 1999), states:
‘the concept of moral rights is now accepted widely as an integral part of the international structure of copyright law. … Those countries (mainly common law countries) which have steadfastly resis¬ted the express incorporation into their legislation of the moral rights of paternity and integrity, as required by Article 6bis of the Berne Convention, by maintaining that such rights are already ade¬quately protected indirectly in the interstices of the general common law and that such matters are best left to contractual arrangement, are gradually losing ground”.
Organisations representing authors and performers must also look inwards. Authors’ rights is a complicated topic and, too often, we are not effective enough at raising awareness among our own respective members about the important issues at stake, even though these are often more important than the everyday struggle for adequate wages and fees.
a) Existing World Conventions and Treaties
b) Suggestions for supplementary reading
c) Article on “Internet ad the Applicable Copyright Law”
a) Existing World Conventions and Treaties
The Berne Convention (administered by WIPO)
The first legislation on copyright and authors’ rights was promulgated in Europe and in the USA during the period between 1710 and around 1790. In some of the Latin American countries laws were passed in 1834 (Chile), 1849 (Peru), 1869 (Argentina) and 1871 (Mexico).
Around the 1850’s bilateral agreements were concluded among European nations, but not all of these provide adequate protection of works outside their respective countries of origin.
The need for a uniform system of protection led to the Berne Convention for the Protection of Literary and Artistic Works adopted in Berne, Switzerland on 9 September 1886.
The Original text has been revised many times since (Berlin 1908, Rome 1928, Brussels 1948, Stockholm 1967 and Paris 1971).
In recent years many more countries have acceded to the Berne Convention due to the growing economic and cultural importance of protection of authors’ rights and neighbouring rights.
The Basic Elements
There are two basic elements of protection under the Berne Convention:
1) National treatment, according to which works originating in one of the Member States must be protected in each of the Member States in the same way that such states protect the works of their own nationals.
2) Minimum rights, which means that the laws of Member States must provide the minimum levels of protection established by the Convention.
No Registration Needed
Member States are not allowed to make registration a precondition for protection, or any other such formality.
The Berne Convention contains an illustrative, non-exhaustive list of protected works, which include “any original production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. Some categories of works may be excluded from protection: texts of a legislative, administrative and legal nature, works of applied art, lectures, addresses and other oral works, and states can require that works must be fixed in some material form in order to be protected.
Protection for the benefit of the author
The Convention states that protection is to operate for the benefit of the author and his successors in title. For some categories of works the question of who is the author or rights holder is a matter for legislation in the country where protection is claimed. (This is the case for cinematographic works).
Eligibility for protection
Authors who are nationals or residents of a country, which is a member of the Berne Convention, are protected. The same holds for others if they first publish their works in a Berne member country, or simultaneously publish in a non-member and a member country.
Article 6bis provides for the minimum protection of the moral rights of the author, the right of the author to be named the author of his work and to object to any distortion, mutilation or other modification of or other derogatory action in relation to the work which would be prejudicial to his honour or reputation.
Economic rights protected
The exclusive economic rights granted to authors under the Convention are
• the right of translation
• the right of reproduction
• the right of public performance (dramatic, dramatico-musical and musical works)
• the right of broadcasting and communication to the public by wire, by re-broadcasting or by loudspeaker or any other analogous instrument of the broadcast of the work
• the right of public recitation
• the right of adaptation
• the right of making cinematographic adaptation and reproduction of works and
• the right of distribution of the works thus adapted and reproduced
The “droit de suite” (resale of original works of art and manuscripts) is optional and may be subject to reciprocity.
The Berne Convention allows certain limitations on economic rights in order to achieve an appropriate balance between authors and users of protected works. These limitations are defined in Articles 9 (2) (reproduction in certain special cases), 10 (quotations and use of works by way of illustration for teaching purposes), 10bis (reproduction of newspaper or similar articles and use of works for the purpose of reporting current events) and 11bis(3) (ephemeral recordings for broadcasting purposes).
Non-Voluntary licenses allowed in only two cases
Member countries may implement non-voluntary licenses in respect of the right of re-broadcasting (and similar, Article 11bis(2)) and in respect of the right of sound recording of musical works (the recording of which has already been authorised) (Article 13(1).
Duration of Protection
The minimum term of protection includes the life of the author plus 50 years after his death. For cinematographic works the term is 50 years after the work has been made available to the public or, alternatively; 50 years after the making of such a work.
For photographic works and works of applied art, the minimum term of protection is 25 years from the making. The duration of the moral rights must be for at least as log as the duration of the protection of the economic rights.
More Members of the Berne Convention
In 1970 there were only 59 member countries to the Berne Convention. In 1999 there were 142.
The Rome Convention and the Phonogram Convention
The Rome Convention concerns neighbouring rights (related rights of performers and producers). These rights are largely the result of technological development (the possibilities of fixating of performances on phonogram records, tapes etc.). The Rome Convention where the text was finally adopted took place in October1961.
Article 1 of the Rome Convention, called the “safeguard clause”, provides that the protection granted under the Convention shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. No provision of the Rome Convention may be interpreted as prejudicing such protection.
Like the Berne Convention the Rome Convention consists basically of the national treatment that a state grants under its domestic law to domestic performances, phonograms and broadcasts. This national treatment is, however, subject to the minimum levels of protection specifically guaranteed by the Convention, and also to the limitations provided for in the Convention.
The minimum protection
The minimum protection guaranteed by the Convention to performers is provided by “the possibility of preventing” certain acts done without their consent. Performer are to be granted the “possibility of preventing”
• broadcasting or communication to the public of a “live” performance
• recording an unfixed performance
• reproducing a fixation of the performance, provided that the original fixation was made without the consent of the performer or the reproduction is made for purposes not permitted by the Convention or the performer
Producers of phonograms are provided the right to authorise or prohibit the direct or indirect reproduction of their phonograms.
Broadcasting organisations have the right to authorise or prohibit the simultaneous rebroadcasting of their broadcasts, the fixation of their broadcasts, the reproduction of unauthorised fixations of their broadcasts or reproduction of lawful fixations for illicit purposes and the communication to the public of their television broadcasts by means of receivers in places accessible to the public against payment.
If a phonogram published for commercial purposes is used directly for broadcasting or any communication to the public, an equitable remuneration shall be paid by the user to the performers, to the producers of the phonogram or to both.
Like the Berne Convention, the Rome Convention permits Member States to establish certain limitations on rights. Private use, use of short excerpts in connection with reporting current events, uses for the sole purpose of teaching or scientific research, ephemeral fixations for broadcasting purposes etc.
Duration of protection
The minimum term is 20 years from the year in which the fixation was made or the performance took place or the broadcast took place.
The USA has never ratified the Rome Convention.
Other international conventions for concerning neighbouring rights
Apart from the Rome Convention there are also the Phonograms Convention (Geneva, 1971), the Satellites Convention (Brussels, 1974) and the TRIPS agreement which also has provisions on related rights.
The New WIPO treaties
Below is a very short summary of the main content of the two new WIPO Treaties: The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
The main purpose of the Treaties is to establish new norms for the digital age.
Common provisions in WIPO Copyright Treaty (WCT) and WPPT
Right of Reproduction
Both Treaties provide for the exclusive right of reproduction. The scope of the right of reproduction in the digital environment is not dealt with in the text of the Treaties themselves, but in Agreed Statements which state that the reproduction right is fully applicable to the digital environment, as are the permissible limitations and exceptions to the right. The Agreed Statements also confirm that the storage of a work in an electronic medium constitutes a reproduction.
Right of Making available (transmissions) in interactive, on-demand networks
The WCT and WPPT provide that authors, performers and producers of phonograms must be granted exclusive rights to authorise “the making available” of their works etc., by wire or wireless means, in such a way that members of the public may access those works etc., from a place and at a time individually chosen by them (that is, interactive, on-demand services).
Right of Distribution
The WCT and the WPPT grant authors and performers an exclusive right to authorise making their works available to the public and a n exclusive right of distribution.
The WCT provides for a right of commercial rental of computer programs, cinematographic works and, according to national law, works embodied in phonograms. The WPPT also grants certain exclusive rights of commercial rental.
Limitations and exceptions
The WCT and the WPPT both adopt the “three-step” test of the Berne Convention to determine whether or not limitations fall within the allowed scope.
Technological protection, rights management information, enforcement etc.
Both Treaties have provisions concerning the above in order to oblige Contracting Parties to provide adequate legal protection and effective remedies against the circumvention of measures used to protect the rights of authors, performers and phonogram producers.
Provisions specific to the WCT
It is confirmed that computer programs are protected as literary works and that databases are protectable as copyright works. The minimum term of protection in respect of photographs is extended to 50 years.
Provisions specific to the WPPT
For the first time at an international level, moral right are conferred upon performers.
Furthermore Article 15 of the WPPT provides to performers and producers of phonograms a right of remuneration in respect of the broadcasting and communication to the public of phonograms.
b) Supplementary Reading
• The Berne Convention, The Rome Convention, the new WIPO treaties and many other documents can be accessed atWWW.WIPO.ORG
• For a short and easily understood overview of Applicable Copyright Law on the Internet see the article attached as appendix c) ”Internet and the Applicable Copyright Law: A Scandinavian Perspective by Peter Schønning.
The Global Legal Landscape
(Document prepared by the chair of the Authors’ Rights Expert Group of the EFJ, Anne Louise Schelin for the summit meeting: “Authors’ Rights for All” in June 2000)