    [Senate Treaty Document 105-17]
    [From the U.S. Government Publishing Office]

    105th Congress                                              Treaty Doc.
                                    SENATE

     1st Session                                                     105-17
    _______________________________________________________________________

         WIPO COPYRIGHT TREATY (WCT) (1996) AND WIPO PERFORMANCES AND
                        PHONOGRAMS TREATY (WPPT) (1996)

                                   __________

                                    MESSAGE

                                      from

                       THE PRESIDENT OF THE UNITED STATES

                                  transmitting

    WORLD INTELLECTUAL PROPERTY ORGANIZATION COPYRIGHT TREATY AND THE WORLD
    INTELLECTUAL PROPERTY ORGANIZATION PERFORMANCES AND PHONOGRAMS TREATY,
    DONE AT GENEVA ON DECEMBER 20, 1996, AND SIGNED BY THE UNITED STATES ON
                                 APRIL 12, 1997

     July 28, 1997.--Treaty was read the first time and, together with the
    accompanying papers, referred to the Committee on Foreign Relations and
                ordered to be printed for the use of the Senate

                             LETTER OF TRANSMITTAL

                                  ----------

                                        The White House, July 28, 1997.
    To the Senate of the United States:
        I transmit herewith for Senate advice and consent to
    ratification the World Intellectual Property Organization
    Copyright Treaty and the World Intellectual Property
    Organization Performances and Phonograms Treaty, done at Geneva
    on December 20, 1996, and signed by the United States on April
    12, 1997. Also transmitted is the report of the Department of
    State with respect to the Treaties.
        These Treaties are in the best interests of the United
    States. They ensure that international copyright rules will
    keep pace with technological change, thus affording important
    protection against piracy for U.S. rightsholders in the areas
    of music, film, computer software, and information products.
    The terms of the Treaties are thus consistent with the United
    States policy of encouraging other countries to provide
    adequate and effective intellectual property protection.
        Legislation is required to implement certain provisions of
    the Treaties. Legislation is also required to ensure that
    parties to the Treaties are granted, under U.S. copyright law,
    the rights to which they are entitled under the Treaties. That
    legislation is being prepared and is expected to be submitted
    shortly.
        I recommend, therefore, that the Senate give early and
    favorable consideration to the WIPO Copyright Treaty and the
    WIPO Performances and Phonograms Treaty, and give its advice
    and consent to ratification, subject to a declaration under
    Article 15(3) of the WIPO Performances and Phonograms Treaty
    described in the accompanying State Department report.

                                                    William J. Clinton.

                              LETTER OF SUBMITTAL

                                  ----------

                                           Department of State,
                                             Washington, July 22, 1997.
    The President,
    The White House.
        The President: I have the honor to submit to you, with a
    view to their transmission to the Senate for advice and consent
    to ratification, the World Intellectual Property Organization
    (``WIPO'') Copyright Treaty and the WIPO Performances and
    Phonograms Treaty, both done at Geneva on December 20, 1996
    (hereinafter, ``the Treaties''). These Treaties were adopted
    under the auspices of the World Intellectual Property
    Organization to strengthen international standards for the
    protection of copyright.
        Each of the Treaties contains provisions that are the same
    as provisions in the other Treaty, as well as provisions
    specific to its own subject matter.
    Provisions common to the treaties
        The Treaties respond to the challenges of protecting works
    in the realm of digital technology. In that regard both
    Treaties oblige parties to ensure that rightsholders have the
    exclusive right to control on-demand transmissions of works to
    members of the public (Article 8, Copyright Treaty; Article 14,
    Performances and Phonograms Treaty). Both Treaties oblige
    parties to provide adequate legal protection against the
    circumvention of technologically based security measures, and
    to apply appropriate and effective remedies against protection-
    defeating devices or services (Article 11, Copyright Treaty;
    Article 18, Performances and Phonograms Treaty). Both require
    the provision of effective remedies against the knowing removal
    or alteration of electronic rights-management information
    without authority, and against the related acts of
    distribution, importation for distribution and communication to
    the public with knowledge that such information has been
    removed or altered (Article 12, Copyright Treaty; Article 19,
    Performances and Phonograms Treaty).
        Both Treaties oblige parties to adopt the measures
    necessary to ensure the application of the Treaties and to
    ensure that enforcement procedures are available under the
    parties' laws so as to permit effective action against any act
    of infringement of rights covered by the Treaties, including
    provision of expeditious remedies to prevent infringements and
    remedies which constitute a deterrent to further infringements
    (Article 14, Copyright Treaty; Article 23, Performances and
    Phonograms Treaty).
        In addition to these substantive obligations, each Treaty
    provides that not only WIPO member States, but also the
    European Community, as well as similar intergovernmental
    organizations, may become party to the Treaty. Admission of
    intergovernmental organizations other than the European
    Community will be subject to a decision by an Assembly created
    to administer each Treaty. To be eligible, such an organization
    must declare that it is competent in respect of, and have its
    own legislation binding on all its member States on, matters
    covered by the Treaty (Article 17, Copyright Treaty; Article
    26, Performances and Phonograms Treaty).
        Each party that is a State has a vote in the Assembly;
    intergovernmental organizations do not have an independent
    vote. However, an intergovernmental organization is permitted
    to participate in a vote on behalf of its memberStates that are
    party to the Treaty. There is no allowance for ``split voting''; either
    an organization votes on behalf of all member State parties, or each
    member State party votes individually (Article 15(3), Copyright Treaty;
    Article 24(3), Performances and Phonograms Treaty).
        In order to ensure that a party to one of the Treaties has
    recourse in the event of a dispute or non-compliance with
    treaty obligations by a party that is an intergovernmental
    organization or a member state of such an organization, each
    Treaty provides that each contracting party bears all the
    obligations under the treaty (Article 18, Copyright Treaty;
    Article 27, Performances and Phonograms Treaty).
        Each Treaty enters into force three months after thirty
    instruments of ratification or accession by states have been
    deposited with the Director General of WIPO. This number makes
    it impossible for the European Community and its Member States
    to be in a position to control the Assembly (Article 20,
    Copyright Treaty; Article 29, Performances and Phonograms
    Treaty).

    WIPO Copyright Treaty

        The WIPO Copyright Treaty provides in Article 1 that it is
    a special agreement within the meaning of Article 20 of the
    Berne Convention for the Protection of Literary and Artistic
    Works, revised at Paris, July 24, 1971, as amended (the ``Berne
    Convention''), to which the United States is a party (Article
    1). Article 20 of the Berne Convention provides that the states
    party to the Berne Convention reserve the right to enter into
    special agreements among themselves insofar as the special
    agreements grant to authors more extensive rights than those
    granted under the Berne Convention.
        The Copyright Treaty (Article 1(4)) requires that parties
    comply with the substantive obligations (Articles 1-21 and the
    Appendix) of the Berne Convention. Like the Berne Convention,
    the Copyright Treaty provides (Article 3) that parties may not
    impose formalities on the nationals of other parties as a
    condition for claiming protection under the Treaty.
        In Articles 4 and 5, the Copyright Treaty clarifies, along
    the lines of Article 10 of the World Trade Organization
    Agreement on Trade-Related Aspects of Intellectual Property
    Rights done at Marrakesh, April 15, 1994, (``TRIPS
    Agreement''), that computer programs are protected as literary
    works under the Berne Convention, and that original
    compilations of data (databases) that incorporate copyrightable
    authorship are also protected.
        The Copyright Treaty (Article 6) explicitly recognizes a
    right of distribution for all categories of works (which, under
    the Berne Convention and the TRIPS Agreement is granted
    explicitly only for cinematographic works).
        As does the TRIPS Agreement, the Copyright Treaty (Article
    7) provides for an exclusive post-first-sale right of rental
    for computer programs, cinematographic works and works embodied
    in phonograms; parties need not implement the rental right in
    respect of computer programs where the program itself is not
    the object of rental, and in the case of cinematographic works
    where rental does not lead to widespread copying impairing the
    right of reproduction.
        The Copyright Treaty (Article 8) extends to all categories
    of works the right of communication to the public (which under
    the Berne Convention and the TRIPS Agreement is required only
    to a varying extent for different categories of works), and
    clarifies that thisright covers making works available to the
    public by wire or wireless means, through an interactive, on-demand
    transmission.
        The Copyright Treaty (Article 9) extends the term of
    protection of photographic works to 50 years after the death of
    the author, as is already the case for all other categories of
    literary works. It does so by stating that parties shall not
    apply to provisions of Article 7(4) of the Berne Convention,
    which allows parties to limit the term of protection for such
    works to a minimum term of twenty-five years from the making of
    the work.
        The Copyright Treaty (Article 10) extends the application
    of the three-step test for exceptions established for the right
    of reproduction in Article 9(2) of the Berne Convention to all
    other rights (as in Article 13 of the TRIPS Agreement):
    limitations or exceptions to all rights may be made in certain
    special cases that do not conflict with a normal exploitation
    of the work and do not unreasonably prejudice the interests of
    the author.
        The Copyright Treaty (Article 22) does not allow any
    reservations to the obligations it sets forth.

    WIPO Performances and Phonograms Treaty

        Several important provisions of the WIPO Performances and
    Phonograms Treaty offer responses to the challenges of digital
    technology for performances and phonograms in digital form in
    the Internet and similar electronic networks. The relevant
    definitions (phonogram, fixation, producer of a phonogram,
    publication, broadcasting, communication to the public) are
    broad enough to cover the requirements of digital technology
    (Article 2). ``Moral rights'' are provided under Article 5 for
    performers in respect of their live aural performances or
    performances fixed in phonograms (although these rights cover
    many kinds of modifications, they may be particularly relevant
    in the case of digital manipulations of performances fixed in
    phonograms). In Articles 10 and 14, this Treaty provides an
    exclusive right for both performers and producers of phonograms
    to authorize making available their fixed performances and
    phonograms, respectively, by wire or wireless means, in an
    interactive, on-demand manner.
        the Performances and Phonograms Treaty (Article 4) obliges
    parties to grant national treatment in respect of the rights
    provided in the Treaty to nationals of other parties, except to
    the extent that another party makes use of reservations
    permitted under Article 15(3) of the Treaty. It also requires
    that protection not be subject to any formalities.
        Other important provisions of the Treaty are described
    below. Also noted are differences and similarities with the
    International Convention for the Protection of Performers,
    Producers of Phonograms and Broadcasting Organizations done at
    Rome, October 26, 1961 (``Rome Convention''), to which the
    United States is not a party, and the TRIPS Agreement. The
    Performances and Phonograms Treaty has no direct relationship
    to the Rome Convention. It includes some of the provisions of
    the Convention by reference (the provisions on criteria of
    eligibility for protection and on the possibility to apply
    reciprocity in respect of the right to remuneration for
    broadcasting and communication to the public), but there is no
    obligation to apply the other provisions of the Rome
    Convention. There is no legal relationship between the Treaty
    and the TRIPS Agreement.
        Article 6 of the Performances and Phonograms Treaty
    (Article 6) provides for the exclusive rights ofperformers to
    authorize the broadcasting and communication to the public of their
    unfixed performances, except where the performance is already a
    broadcast program, and the fixation of their unfixed performances (this
    generally corresponds to the standards in the Rome Convention and the
    TRIPS Agreement). This Treaty (Articles 7 and 11) also includes an
    exclusive right of reproduction for performers in respect of their
    fixed performances and for producers of phonograms (in harmony with the
    Rome Convention and the TRIPS Agreement).
        The Performances and Phonograms Treaty (Articles 8 and 12)
    provides recognition of a right of distribution (on which there
    is no provision in the Rome Convention or the TRIPS Agreement)
    for both performers and producers of phonograms.
        The Performances and Phonograms Treaty (Articles 9 and 13)
    includes an exclusive post-first-sale right of rental for both
    performers and producers of phonograms; such a right is not
    granted in the Rome Convention, but is granted in the TRIPS
    Agreement explicitly for producers of phonograms and left to
    national legislation as far as performers are concerned. The
    Performances and Phonograms Treaty, furthermore, allows those
    countries where a system of equitable remuneration was applied
    on April 15, 1994, to maintain such a system, rather than
    provide an exclusive right (such a ``grandfathering'' clause is
    also included in the TRIPS Agreement).
        The Performances and Phonograms Treaty (Article 15(1))
    includes the right to a single equitable remuneration for
    performers and producers of phonograms for the broadcasting and
    communication to the public of phonograms published for
    commercial purposes or reproductions of such phonograms. Such a
    right is provided in the Rome Convention, but not in the TRIPS
    Agreement. Article 15(2) allows parties to establish in
    national legislation that the remuneration shall be claimed
    from the user by the performer or the producer of a phonogram,
    or both. Article 15(3) permits any party to declare, in a
    notification to the Director General of WIPO, that it will
    apply the provisions of Article 15(1) only in respect of
    certain uses or will otherwise limit their application or that
    it will not apply these provisions at all.
        I recommend that, in accordance with Article 15(3), the
    United States include the following declaration in its
    instrument of ratification:

              Pursuant to Article 15(3), the United States declares
            that it will apply the provisions of Article 15(1) only
            in respect of certain acts of broadcasting and
            communication to the public by digital means for which
            a direct or indirect fee is charged for reception, and
            for other retransmissions and digital phonorecord
            deliveries, as provided under United States law.

        Article 16 of the Performances and Phonograms Treaty
    provides that limitations or exceptions to rights may be made
    in certain special cases that do not conflict with a normal
    exploitation of the performance or phonogram and do not
    unreasonably prejudice the interests of the performer or the
    producer of the phonogram. The same test is established in
    Article 9(2) of the Berne Convention, and is applied to the
    rights of performers and producers of phonograms under Article
    13 of the TRIPS Agreement.
        The Performances and Phonograms Treaty (Article 17)
    provides for a fifty-year term of protection for the rights of
    both performers and producers of phonograms (as in the TRIPS
    Agreement; the Rome Convention provides for only a twenty-year
    term).
        Except for the remuneration right for broadcasting in
    Article 15(3), no reservations are allowed under the
    Performances and Phonograms Treaty (Article 21).
        As provided in Article 22, this Treaty applies to
    performances that took place and phonograms that were fixed
    before the date of entry into force of the Treaty, provided
    that the term of protection has not expired, except that a
    party may limit the application of Article 5 concerning the
    moral rights of performers to performances after the entry into
    force of the Treaty.
        Statements agreed to at the Diplomatic Conference are found
    as footnotes in the texts of the Treaties. These statements
    represent the negotiators' understanding of the language of the
    Treaties and can aid in the interpretation of certain articles.
    In particular, the agreed statements explain that computer
    storage of works and phonograms is covered by the Treaties, and
    that the provisions governing limitations and exceptions
    provide sufficient flexibility for countries to provide for and
    extend appropriate limitations on rights when adapting their
    laws to the digital environment.
        Legislation is required to implement certain provisions of
    the Treaties. Legislation is also required to ensure that
    parties to the Treaties are granted, under U.S. copyright law,
    the rights of which they are entitled under the Treaties. That
    legislation is being prepared and is expected to be submitted
    shortly.
        Prompt ratification of the Treaties will advance United
    States policy in favor of strong intellectual property
    protection and is consistent with United States foreign policy
    in encouraging other countries to provide adequate and
    effective protection for intellectual property.
         I recommend, therefore, that the WIPO Copyright Treaty and
    the WIPO Performances and Phonograms Treaty be transmitted to
    the Senate as soon as possible for its advice and consent to
    ratification, subject to a declaration under Article 15(3) of
    the WIPO Performances and Phonograms Treaty, limiting the
    obligation of the United States to provide remuneration rights
    for the broadcast of sound recordings.
        Respectfully submitted,
                                                        Strobe Talbott.