[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.




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