[Federal Register Volume 65, Number 229 (Tuesday, November 28, 2000)]
[Notices]
[Pages 70886-70888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30331]


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DEPARTMENT OF COMMERCE

United States Patent and Trademark Office

RIN 0651-AB28


Request for Comments on Basic Proposals for an Instrument on the 
Protection of Audiovisual Performances to be Considered by the WIPO 
Diplomatic Conference

AGENCY: United States Patent and Trademark Office, Commerce.

ACTION: Request for comments.

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SUMMARY: The World Intellectual Property Organization (WIPO) will 
convene a Diplomatic Conference on the Protection of Audiovisual 
Performances, in Geneva, Switzerland, during December 7-20, 2000. Two 
Basic Proposals will form the basis for the negotiations: the Basic 
Proposal for the Substantive Provisions of an Instrument on the 
Protection of Audiovisual Performances to be Considered by the 
Diplomatic Conference (document IAVP/DC/3), which was prepared by the 
Chairman of the Standing Committee on Copyright and Related Rights 
(SCCR), is available on the WIPO website at http://www.wipo.int. The 
Basic Proposal for Administrative and Final Provisions of the 
Instrument (document IAVP/DC/4), prepared by the International Bureau 
of WIPO, is also available on the WIPO website. The United States 
Patent and Trademark Office (``USPTO''), in cooperation with the United 
States Copyright Office and the United States Department of State, is 
seeking views of the public on this effort and any consequent potential 
changes to United States law and practice. Comments received will be 
shared among the relevant agencies.

DATES: Comments should be submitted on or before December 6, 2000.

ADDRESSES: Persons wishing to offer written comments should address 
those comments to the Director of the United States Patent and 
Trademark Office, Box 4, United States Patent and Trademark Office, 
Washington, DC 20231, marked to the attention of Elizabeth Shaw. 
Comments may also be submitted by facsimile transmission to (703) 305-
7575 or by electronic mail through the Internet to 
[email protected]. All comments will be maintained for public 
inspection in Room 902 of Crystal Park II, 2121 Crystal Drive, 
Arlington, Virginia. The relevant negotiating documents may be found at 
the WIPO website: http://wipo.int/news/en/
index.html?wipo__content__frame=/news/en/conferences.html.

FOR FURTHER INFORMATION CONTACT: Linda S. Lourie by telephone at (703) 
305-9300; by facsimile at (703) 305-8885; by electronic mail to 
[email protected]; or by mail addressed to the Director of the 
United States Patent and Trademark Office, Box 4, Washington, DC 20231, 
marked to the attention of Linda S. Lourie, Attorney-Advisor.

SUPPLEMENTARY INFORMATION:

Background

    WIPO will convene a Diplomatic Conference on the Protection of 
Audiovisual Performances in Geneva, Switzerland, during December 7-20, 
2000. Two Basic Proposals will form the basis for the negotiations. The 
Basic Proposal for the Substantive Provisions of an Instrument on the 
Protection of Audiovisual Performances, which will be considered by the 
Diplomatic Conference (document IAVP/DC/3), was prepared by the 
Chairman of the SCCR. The Basic Proposal for Administrative and Final 
Provisions of the Instrument (document IAVP/DC/4) was prepared by the 
International Bureau of WIPO. The texts of both the Basic Proposal for 
the Substantive Provisions and the Basic Proposal for Administrative 
and Final Provisions, along with other documents relating to the 
forthcoming Diplomatic Conference, are available on the WIPO website.
    The issues considered under the Basic Proposal for the Substantive 
Provisions were initially considered within the framework of the 1996 
Diplomatic Conference on Certain Copyright and Neighboring Rights 
Questions, which concluded with the signing of the WIPO Copyright 
Treaty (``WCT'') and the WIPO Performances and Phonograms Treaty 
(``WPPT''). However, at that time, no international consensus developed 
to provide for protection for audiovisual performances and the decision 
was taken by the Diplomatic Conference to postpone consideration of 
this issue for further discussion by the Standing Committee on 
Copyright and Neighboring Rights. During the consideration over the 
past four years of existing national and regional legislation 
concerning audiovisual performances and information on the de facto 
situation, including contractual practice, the United States has put 
forward a number of proposals to advance the protection of performers 
of audiovisual works in line with current U.S. practice; many of these 
proposals have found their way into the Basic Proposal. Various 
proposals have been submitted by other WIPO members, including Korea, 
the Group of African States, Canada, the United Republic of Tanzania 
and Japan. The European Community also submitted proposals on behalf of 
its member states. In light of the extensive study of the issues, the 
present Diplomatic Conference is now being convened.
    The United States position reflects the broad private sector 
consensus that has developed among performers unions, motion picture 
producers and other affected groups. Four provisions, in particular, 
are of primary importance for U.S. interests in light of current 
industry practices, namely those pertaining to national treatment, 
moral rights, the transfer of rights from the performer to the producer 
and the broadcast and communication to the public right. The Basic 
Proposal addresses each of these issues (Articles 4, 5, 11 and 12, 
respectively).

Brief Summary of the Basic Proposals

    The Basic Proposal for the Substantive Provisions of an Instrument 
on the Protection of Audiovisual Performances would update the 
international norms on the rights offered to audiovisual performers, 
compliment our existing international obligations and further our 
policy of strong intellectual property protection.
    Essentially, the Instrument has four objectives, namely: (1) To 
develop and maintain the protection of rights of performers in their 
audiovisual performances in a manner as effective and uniform as 
possible, consistent with the goal of facilitating the exploitation of 
audiovisual works in the global marketplace, (2) to introduce new 
international rules in order to provide adequate solutions to the 
questions raised by economic, cultural and technological developments, 
(3) to offer responses to the challenges of digital technology and (4) 
to provide a balance between the rights of audiovisual peformers and 
the larger public interest, particularly education, research and access 
to information.
    To achieve these objectives, the Instrument will include:
     An exclusive right of reproduction for performers in 
respect of their

[[Page 70887]]

performances fixed in audiovisual fixations, with a related provision 
on exceptions (corresponding to the WPPT);
     The recognition of a right of distribution for performers 
(corresponding to the WPPT);
     The provision allowing Contracting Parties to determine 
conditions for the territorial effect of the exhaustion;
     An exclusive right for performers to authorize the making 
available of their performances fixed in audiovisual fixations, by wire 
or wireless means, in an interactive, on-demand system consistent with 
the equivalent right provided under the WPPT;
     An exclusive right of rental for performers where 
commercial rental has led to widespread copying that ``materially 
impairs'' the performers' exclusive right of reproductions (this is the 
same ``material impairment test'' as found in the TRIPs Agreement and 
the WCT with respect to authors of cinematographic works);
     ``Moral rights'' for performers, including the right to 
claim to be identified as the performer of his or her performances, 
except where omission is dictated by the manner of the use of the 
performance, and the right to object to distortions, mutilations or 
other modifications of their performances that would be prejudicial to 
their reputations (performers would not be able to object to 
modifications that are consistent with the normal exploitation of a 
performance);
     Exclusive rights of performers to authorize the 
broadcasting and communication to the public of their performances 
fixed in audiovisual fixations or a right to equitable remuneration for 
such uses, consistent with the WPPT;
     A mechanism to ensure that the rights necessary to exploit 
the film can be effectively secured by the producers;
     A 50-year term of protection for the rights of performers 
(corresponding to the WPPT); and
     The relevant definitions (``audiovisual fixation,'' 
``broadcasting,'' and ``communication to the public'') adapted to the 
requirements of digital technology.
    The Instrument may also include:
     An obligation to provide adequate legal protection and 
effective legal remedies against the circumvention of effective 
technological measures that are used by performers to protect their 
rights, such as was provided for in the WPPT;
     An obligation to make unlawful the removal and alteration 
of electronic rights-management information without authority, as well 
as the related acts of distribution, importation for distribution and 
communication to the public, such as was provided for in the WPPT; and
     An obligation to provide for effective enforcement 
measures necessary to protect the rights granted under this Basic 
Proposal (corresponding to the WPPT, the Berne Convention and the TRIPs 
Agreement).
    The Basic Proposal presents two alternatives for national 
treatment: a broad national treatment approach that obliges Contracting 
Parties to grant national treatment to nationals of other Contracting 
Parties (a Contracting Party may limit the protection beyond that which 
is provided for under this Basic Proposal to nationals of other 
Contracting States on a reciprocal basis); and a narrower one that 
corresponds to the WPPT. The second provision would provide for 
national treatment only in respect of the exclusive rights specifically 
granted in the Basic Proposal and any right to equitable remuneration 
where such a right is offered in lieu of the right of authorization for 
broadcasting and communication to the public.
    No reservations are allowed under the Basic Proposal. However, the 
Basic Proposal gives members the option of providing protection to 
fixed performances in existence at the time of the entry into force of 
the Instrument and to all performances, whether or not fixed, that 
occur after the entry into force of the Instrument.
    To set forth terms on the formal matters, the Basic Proposal for 
the Administrative and Final Provisions contains specific 
Administrative Provisions relating to the administration and 
implementation of the Basic Proposal. The first issue for consideration 
by the Diplomatic Conference will be whether this Basic Proposal shall 
be a self-standing Treaty or a Protocol to the WPPT. One of the 
implications for this distinction is whether a member State can be a 
Contracting Party of the present Instrument without being a member of 
the WPPT, a Treaty which has not yet entered into force (to date, only 
16 of the necessary 30 ratifications or accessions have been deposited 
with the Director General of WIPO). The other alternative offered 
provides for a separate Assembly where the Instrument becomes a self-
standing Treaty.
    With either alternative, any intergovernmental organization, such 
as the European Community, may participate in the vote, in place of its 
member States, with a number of votes equal to the number of its member 
States party to the Instrument; no intergovernmental organization is 
permitted to vote if any of its member States votes for itself.

Issues for Public Comment

    The USPTO, in cooperation with the United States Copyright Office 
and the United States Department of State, is interested in assessing 
support for the effort to negotiate an Instrument for the Protection of 
Audiovisual Performances. Interested members of the public are invited 
to present written comments on any issues they believe to be relevant 
to protection of audiovisual performances or any aspects of the 
proposed Basic Proposal. Comments are particularly welcome on the 
following specific issues:
    1. What relationship would you wish to see the proposal Instrument 
have to the WPPT?
    2. What effect, if any, would the designation of the proposed 
Instrument as a self-standing Treaty, as opposed to a Protocol to the 
WPPT, have on current U.S. or international practices?
    3. The Basic Proposal presents two alternatives for determining 
National Treatment, namely the obligation to grant national treatment 
for exclusive rights, rights of remuneration, and additional rights, 
which may be limited by reciprocity, as well as a more limited national 
treatment rule such as appears in the WPPT. Which alternative would be 
preferable in light of current U.S. and international practice?
    4. What changes in current practices, including collective 
bargaining agreements, and broadcasting agreements, would be needed in 
light of the proposal on broadcasting rights, whether an exclusive 
right or right of remuneration?
    5. The Basic Proposal presents four alternatives for determining 
the relationship between performers and producers, including a 
presumption of transfer from the performer to the producer, the 
entitlement by the producer to exercise the exclusive rights of 
authorization, a conflict of laws approach, and silence on the issue. 
In your experience, what would be the relative benefits/disadvantages 
you would expect in each of these situations? What would be the most 
predictable and fair solution?
    6. The Basic Proposal does not mandate the protection for fixed 
performances that exist at the time of the entry into force of the 
Instrument but does permit Member States to do so. In your experience, 
what benefits or disadvantages would you foresee in allowing for such 
protection of pre-existing works?

[[Page 70888]]

    7. How should the issue of moral rights be treated, both in 
relation to current and future industry practices and past fixed 
performances not protected by this Instrument? Should they be waivable 
or transferable? Has the Basic Proposal addressed concerns adequately? 
Would any additional language be helpful in clarifying U.S. current 
practices?
    8. One mechanism for indicating a consensus in the WCT and WPPT 
where treaty language was not appropriate was the Agreed Statement. 
What, if any, Agreed Statements would be desirable to use to augment 
the Basic Proposal?
    In your response, please include the following: (1) Clearly 
identify the matter being addressed; (2) provide examples, where 
appropriate, of the matter being addressed; (3) identify, if possible, 
any relevant legal authorities applicable to the matter being 
addressed; and (4) provide suggestions regarding how the matter should 
be addressed by the United States.

    Dated: November 22, 2000.
Q. Todd Dickinson,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 00-30331 Filed 11-27-00; 8:45 am]
BILLING CODE 3510-16-M