Professional Documents
Culture Documents
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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
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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
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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
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Reasons for New WIPO
Treaties
WCT WPPT
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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)
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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
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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.”
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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
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WCT – Right of making available
(Transmissions in interactive digital networks)
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
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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
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WCT – Right of making available
(communication to the public)
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WCT – Right of making available
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
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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.
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WCT - The Right of Distribution
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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 +
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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
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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
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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
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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
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WPPT - Rights of phonogram
producers
Same rights as those granted under TRIPS
Agreement
Reproduction right
Rental right
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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”
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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’
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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
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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
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WPPT - the Distribution Right
Identical to Article 6 of WCT for both
performances and phonogram producers
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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
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WPPT - Technological measures of
protection
Rights management information
Similar to WCT provisions
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Effective Dates/Accessions
WCT (67 members as of 2008)
Came into force on 6 March 2002
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Exceptions and Limitations
WCT
Article 1 to 21 Berne Convention. Article 1(4) and agreed statement
(reproduction in the digital environment)
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)
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Exceptions and Limitations
Environments: Analog different from digital?
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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
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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
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Exceptions and Limitations
New Exceptions:
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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
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Exceptions and Limitations
WIPO activities
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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.
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Thank you!
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