Impact of New Technologies on

Copyright and Related Rights:

The WCT and WPPT

WIPO Intermediate Interregional Seminar, Geneva, October 8

2008

Víctor Vázquez, Senior Legal Counsellor Copyright E-

commerce, Technology and Management Division, WIPO

1
The Berne Convention
 Adopted in 1886
 Revised at regular intervals to respond to new
technological developments over the last century
 Sound recording technology
 Photography
 Radio
 Film
 Television

2
The Berne Convention
 ‘guided development’ in the 1970s-80s
 Based on interpretation of existing international norms
 To respond to new technologies such photocopying, video
technology, compact cassettes & home taping, satellite
broadcasting, cable transmissions, increasing importance of
computer programs, ‘multi media’ works, electronic databases
 By the end of 1980s, it became clear that new
binding international standards had to be agreed
upon
 UruguayRound GATT negotiations (TRIPS)
 WIPO Committee of Experts

3
The Berne Convention
 TRIPS (1994) incorporated some results of the
period of ‘guided development’ but did not
respond to all issues posed by the latest
technological advancements that were occurring
throughout the period of GATT negotiations
 Digital technology and the Internet
 WIPO Diplomatic Conference in December 1996
adopted 2 new treaties – WCT & WPPT

4
 Reasons for New WIPO
Treaties
WCT WPPT

 Clarify existing standards / norms

 To provide some answers to technological
developments which have fundamentally
affected ways in which works may be
created, disseminated & utilized
5
Subject Matter of the Treaties
 WCT
 Sameconcept & extent of literary and artistic
works as is applicable under the Berne
Convention
 WPPT
 Performances
 Phonograms

6
WCT – link to Berne
 WCT is a special agreement under Article 20 of
Berne Convention
 Art. 20 – “governments … reserve the right to enter
into special agreements among themselves, in so far as
such agreements grant to authors more extensive rights
than those granted by the Convention, or contain other
provisions not contrary to this Convention”
 Crucial Link - interpretation of WCT cannot lead
to lower level of protection given by Berne
(WPPT - no such link)

7
WCT – further link to Berne
 Articles 1 to 21 & Appendix of Berne
Convention to be applied by members
(including Article 6bis, unlike TRIPS)
 The 1971 Paris Act of Berne Convention
 Any member country of WIPO, irrespective of
whether it is a party to Berne, can accede to
WCT
 No links to any other treaty
8
 WCT - Storage/Reproduction
in an Electronic Medium
“The reproduction right, as set out in Article 9 of
the Berne Convention, and the exceptions
permitted thereunder, fully apply in the digital
environment, in particular to the use of works in
digital form. It is understood that the storage of a
protected work in digital form in an electronic
medium constitutes a reproduction within the
meaning of Article 9 of the Berne Convention.”
9
 WCT - Storage of works in digital
form in electronic medium
 Agreed Statement that Article 9 of Berne fully
applies in the digital environment. Hence:
 Art. 9(1)-Reproduction in ‘any manner or form’
irrespective of duration; and whether of a
temporary nature
 Art. 9(2)-Justified exceptions, such as for transient
and incidental copies, provided they comply with
the 3-step test

(Reference : WCT [Article 1(4)] & WPPT [Articles 7 &11]

10
WCT - Storage of works in digital
form in electronic medium
 In consequence: storage of a protected
work in digital form in an electronic
medium is reproduction within Article 9,
Berne (Agreed statement concerning
article 1.4- reference to BC)

11
 WCT – Right of making available
(Transmissions in interactive digital networks)

 2 possible existing rights were identified

 Communication to the public
 Distribution
 These Berne Convention rights do not offer full coverage
– the former does not extend to certain category of works
while the latter expressly covers only cinematographic
works
 National laws also differed greatly in this respect; difficult
to arrive at a consensus

12
 WCT – Right of making available
(Transmissions in interactive digital networks)

 ‘Umbrella’ Solution
 Act of digital transmission should be described in a neutral
way
 Should convey the interactive nature of digital transmissions
 The gaps in Berne in the coverage of the relevant rights
should be eliminated
 In the actual choice of rights, countries should be left with
sufficient freedom

13
 WCT – Right of making available
(Transmissions in interactive digital networks)
 ‘Umbrella’ Solution – because the number of
countries which preferred the option of using the right
of communication to the public were more:
 WCT extends applicability of right of communication to
public to all categories of works
 Clarifies that the right also covers transmission in
interactive systems
 However, Parties free to implement this obligation (of
making available to the public) through a right other
than the right of communication to the public, such as
distribution right or a specific new right
14
 WCT – Right of making available
(communication to the public)

 Authors of literary and artistic works given exclusive

right of authorizing any communication to the public
of their works, by wire or wireless means, including
the making available to the public of their works in
such a way that members of the public may access
from a place and time individually chosen by them.
• (Article 8, WCT)

(Similar provision for performers and phonogram producers in Articles 10

& 14, WPPT)

15
 WCT – Right of making available

• Agreed Statement - the mere provision of physical

facilities for enabling or making a communication
does not in itself amount to a communication within
the meaning of the treaty

• But liability can arise from other acts than mere

transmission

16
Technological measures of protection
Rights management information
 “The answer to the machine lies in the
machine” (Charles Clark)
 Legal measures needed to protect the
technological protection measures and rights
management information

17
Technological measures of protection
Rights management information
Obligation to provide adequate legal protection
and remedies against
 circumvention of technological measures that
restrict unauthorized acts,
 removal/alteration of electronic rights
management information.

(Ref : WCT Articles 11 & 12, WPPT Articles 18 & 19)

18
Technological measures of protection
Rights management information
 ‘Rights Management Information’ defined as
“information which identifies the work, the
author of the work, the owner of any right in
the work, or information about the terms and
conditions of use of the work, and any numbers
or codes that represent such information …”

19
WCT - The Right of Distribution

 Q: Can a distribution right be deduced as an

indispensable part to the right of
reproduction (concept of implicit recognition
of the right of distribution), or should a
separate right be clearly specified?

20
WCT-The Right of Distribution
 Article 6(1), WCT – “Authors of literary and
artistic works shall enjoy the exclusive right
of authorizing the making available to the
public of the original and copies of their
works through sale or other transfer of
ownership”
 Clarification
of obligations under Berne
Convention (and also under TRIPS); or
 Berne + TRIPS +

21
 WCT - Rental Rights
Authors of :
- computer programs;
- cinematographic works; and
- works embodied in phonograms,
shall have exclusive right of commercial rental
to public of originals or copies of their works
(WCT, Article 7)
Identical to Articles 11 & 14.4 of TRIPS
22
 WCT - Limitations on Rental
Rights
 If computer program not essential object of
the rental
 Films – unless rental has led to widespread
copying materially impairing the
reproduction right
 State can maintain existing equitable
remuneration for rental, provided this does
not materially impair reproduction rights

[Rental Rights in WPPT - Articles 9 & 13] 23

WCT- Clarifications & Others
 Computer programs protected as literary works
(Art 4)
 Compilations of data or other material, in any
form, which by reason of the selection or
arrangement of their contents constitute
intellectual creations, are protected as such
(Art 5)
 Photographs - duration extended to 50 years
24
WPPT - Linkage to other Treaties
 No link with the Rome Convention, unlike the
link between WCT and Berne
 Application of substantive provisions of Rome is
not an obligation
 Only a few provisions of Rome are included by
reference (relating to criteria for eligibility)

25
WPPT - Rights of Performers
 The coverage of rights of performers under the
WPPT goes beyond the Rome Convention and
TRIPS Agreement
 Key difference in the nature of rights – exclusive
right versus ‘possibility of preventing’
 Economic rights:
 Right of broadcasting & communication to the public
of unfixed performances
 Reproduction right
 Rental right

26
WPPT - Performers’ Moral Rights
 Moral right for live aural performances
or performances fixed in phonograms
Right to object to distortion, mutilation or
modification of performances prejudicial to a
reputation
Right to claim to be identified as performer
 Exception - where omission dictated by manner
of use
 No performers’ rights in audio-visual
performances
27
WPPT - Rights of phonogram
producers
 Same rights as those granted under TRIPS
Agreement
 Reproduction right
 Rental right

 Direct or indirect reproduction in any

manner or form (article 7)

28
WPPT - Storage of works in digital
form in an electronic medium
 Agreed Statement that “the reproduction right, as set
out in Articles 7 & 11, and the exceptions permitted
under 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”

29
WPPT - Transmission of works in
digital networks (On-line transmissions)
 The ‘Umbrella’ Solution
 Articles 10 & 14 accord ‘the exclusive right of
authorizing the making available to the public of
performances fixed in phonograms, and of the
phonograms respectively, 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’

30
WPPT - Transmission of works in
digital networks (On-line transmissions)
 The ‘Umbrella’ Solution
 Differs from WCT in that WPPT grants a specific
right but, in identical manner with WCT, gives
freedom to C/Parties to implement it through
introduction of this specific right or via other rights
 WCT includes this as a part of the right of
communication to the public but gives freedom to
C/Parties to implement it via other rights

31
WPPT - Liability of Service and
Access Providers
 Although not expressly stated, it is clear
that the principle contained in the Agreed
Statement adopted with Article 8, WCT –
the mere provision of physical facilities for
enabling or making a communication does not in
itself amount to a communication - applies
mutatis mutandis to Articles 10 & 14 of
WPPT

32
WPPT - the Distribution Right
 Identical to Article 6 of WCT for both
performances and phonogram producers

33
WPPT - Remuneration for broadcasting
and communication to the public
 “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” (Article 15, WPPT)
 Largely similar to Article 12, Rome Convention
 Difference – while Rome leaves it to national legislation to
grant right to performer, producer or both, WPPT requires
that right must be granted to both, in the form of a single
remuneration

34
WPPT - Technological measures of
protection
Rights management information
 Similar to WCT provisions

35
Effective Dates/Accessions
 WCT (67 members as of 2008)
 Came into force on 6 March 2002

 WPPT (66 members as of 2008)

 Came into force on 20 May 2002

36
Exceptions and Limitations
WCT
 Article 1 to 21 Berne Convention. Article 1(4) and agreed statement
(reproduction in the digital environment)

 General exception: 3-step test. Article 10(1) and agreed statement:

Existing exceptions can be kept or extended to the digital environment.
New exceptions can be devised

WPPT
 Exceptions to the rights granted under WPPT must follow 3-step test.
Article 16(2)

 Any other copyright exception that exists for copyright. Article 16(1)

37
 Exceptions and Limitations
Environments: Analog different from digital?

 International Treaties do not extend or reduce the scope of

applicability of L&E permitted in the analog environment

 Whether new exceptions are needed in the digital environment

 Whether existing exceptions from the analog environment

remain appropriate in the digital environment, or need to be
restricted in some way in that environment

38
Exceptions and Limitations
Are existing exceptions still appropriate?
 News reporting, quotations
 Libraries and teaching purposes:
reproduction of material and
communication to the public and making
available under certain circumstances
 Private copying: quality of copies and
possibility of dissemination
39
Exceptions and Limitations
3-Step Test as a common rule
 Article 9(2) Berne Convention, Article 13 TRIPS
Agreement, Articles 10(2) WCT and 16(2) WPPT
 certain special cases
 do not conflict with normal exploitation
 do not prejudice the legitimate interests of right holders

 WTO Panel Decision, June 2000 (EU v. US)

home- style exception regarding playing of radio or television
broadcasts of musical works in certain bars, restaurants and other
retail establishments

40
Exceptions and Limitations
New Exceptions:

 Temporary electronic copies which occur as part of

the technical process of making Internet transmission.
 Caching and browsing: temporary reproduction which
occurs at the point of reception to enable the view of
the accessed material
 Making available of content in the premises of a
cultural institution

41
Exceptions and Limitations
SCCR 16 Brasil, Chile, Nicaragua and
Uruguay Proposal
Three areas of work:
 1. Identification, from the national intellectual property systems of
Member States, of national models and practices concerning
exceptions and limitations.
 2. Analysis of the exceptions and limitations needed to promote
creation and innovation and the dissemination of developments
stemming therefrom.
 3. Establishment of agreement on exceptions and limitations for
purposes of public interest that must be envisaged as a minimum in all
national legislations for the benefit of the community; especially to
give access to the most vulnerable or socially prioritized sectors
42
Exceptions and Limitations
WIPO activities

 Studies and meetings

 Studies on limitations and exceptions in the digital environment
 Information meetings on digital content for the visually impaired,
libraries and educational uses
 DRM study on distance education and visually impaired

 Technical legal assistance to developing countries

 needs of countries / implementation of treaties
 model law on copyright and related rights

43
Exceptions and Limitations
Possible Future Works
 Use and abuse of technological measures of protection, digital
rights management, and contract law
 Privacy concerns: ISPs are often requested by right owners to
disclose information about users
 Inadequate information for users: copy protection,
interoperability
 Access to knowledge and public domain (orphan works)
 Preservation of cultural heritage.

44
Thank you!

45