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CHAPTER III


WIPO CRNR/DC/5 ORIGINAL: English DATE: August 30, 1996


CHAPTER III

RIGHTS OF PRODUCERS OF PHONOGRAMS


Notes on Article 14

14.01 Article 10 of the Rome Convention accords a right of reproduction to producers of phonograms. It provides that "producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms".

14.02 Article 14 of the proposed Treaty contains a proposal concerning the right of reproduction of producers of phonograms.

14.03 In paragraph (1) , it is proposed that producers of phonograms shall enjoy the exclusive right of authorizing direct and indirect reproduction of their phonograms, whether permanent or temporary, in any manner or form.

14.04 The language of this provision is in harmony with the corresponding provision on performers' rights. It is proposed that producers of phonograms would be granted "the exclusive right of authorizing" direct or indirect reproduction. In this respect, there are no differences between the proposal and Article 10 of the Rome Convention.

14.05 There are two elements in the proposal that differ from the provisions of the Rome Convention and that imply an improvement in the level of protection. According to an explicit clause in the Article, the reproduction right would extend to both permanent and temporary reproduction. The result of reproduction may be a tangible permanent copy like a phonogram, a recording or a CD-ROM. It may as well be a copy of the phonogram on the hard disk of a PC, or in the working memory of a computer. Phonograms that are stored for a very short time may be reproduced or communicated further, or they may be made perceptible by an appropriate device.

14.06 Under the proposed Article 14, producers of phonograms would enjoy the exclusive right of authorizing reproduction "in any manner or form". This element manifests the broad scope of the right. Thus, storage of a phonogram in any electronic medium, for instance, constitutes reproduction. Reproduction includes such acts as uploading and downloading a phonogram to or from the memory of a computer. Digitization, i.e. the transfer of a phonogram embodied in an analog medium to a digital one constitutes always an act of reproduction. The expression "in any manner or form" is already found in Article 9(1) of the Berne Convention concerning the right of reproduction enjoyed by authors. It has been included in the present proposal to make it clear that there is no difference between the rights of producers of phonograms and authors in this respect.

14.07 According to paragraph (2) of the present proposal, it would be a matter for the legislation of Contracting Parties to limit the right of reproduction in the case of temporary reproduction of a phonogram, in whole or in part, in certain specific cases, namely where the purpose of the temporary reproduction is solely to make the phonogram perceptible or where the reproduction is of a transient or incidental nature. Moreover, the temporary reproduction must always take place in the course of use of the phonogram that is authorized by the producer of the phonogram or permitted by law. The purpose of this provision is to make it possible to exclude from the scope of the right of reproduction acts of reproduction that are not relevant in economic terms. By reference to Article 20(2), the limitations are further confined to cases that pass the three-step test in that Article, which corresponds to the test in Article 9(2) of the Berne Convention.

14.08 The European Community and its Member States proposed at the May 1996 session of the Committees of Experts that the proposed Treaty include a clause on the right of reproduction of producers of phonograms (document BCP/CE/VII/1-INR/CE/VI/1). The European Community and its Member States also proposed that the following points should be included in the "Records of the Conference"/"General Report": "Contracting Parties confirm that the permanent or temporary storage of a protected phonogram in any electronic medium constitutes a reproduction. This includes acts such as uploading and downloading of a phonogram to or from the memory of a computer."

14.09 The proposal by the European Community and its Member States received a positive reaction from many Government members of the Committee. In the discussions at the May 1996 session, several Delegations proposed that a provision with the same contents should be included in the proposed Treaty.

14.10 The proposal included in paragraph (1) of this Article is in substantial conformity with the proposal of the European Community and its Member States. At the same time, it meets the proposals referred to above in the discussions of the Committees of Experts.

14.11 For the February 1996 session of the Committees of Experts Argentina made a proposal on the definition of "reproduction": " 'Reproduction' of a phonogram or performance fixed on a phonogram means the act of making one or more originals or copies of all or a substantial part thereof, regardless of the method used to make the copy or the medium in which it is made, including storage of the phonogram or of the performance fixed on a phonogram in electronic form, regardless of the duration of the storage." The proposal corresponds in substance to the earlier proposal made by the International Bureau of WIPO. As was stated in Note 2.10 above, no definition of "reproduction" is included in the proposed Treaty. It appears, however, that the operative clause on the right of reproduction includes all the essential aspects of the proposal made by Argentina.

14.12 As further support for the proposal in Article 14, the following points may be made.

14.13 Technological developments have had a great impact on the means that may be used for reproduction. Complete and accurate reproductions may be made quickly and in such a way that the material reproduced resides only a short while in the memory of a computer. In some cases, a certain phonogram or piece of data may never be reproduced as a whole in the memory of a computer; only those parts of the material that are necessary to achieve a certain result may be reproduced, for instance in order to make a phonogram perceptible. In such cases, the successive reproduction of portions of a phonogram may, over a period of time, cover the whole phonogram.

14.14 Some relevant uses may, now or in the future, become totally based on a temporary reproduction.

14.15 Today, different countries may interpret the right of reproduction in different ways. Some countries may consider that temporary reproduction, at least some acts of reproduction the results of which live a very short time, does not fall under the right of reproduction, whereas other countries may take a contrary position. The Rome Convention does not serve to harmonize the right of reproduction among the Contracting States of that Convention.

14.16 The interpretation of a right of such importance as the right of reproduction should be in fair and reasonable harmony all over the world. A uniform interpretation is necessary. Already, the need for legal certainty and predictability has been felt and found lacking in concrete cases. The need for a uniform interpretation is dictated by the need to secure the functioning of the system of rights in a digital future.

14.17 The only way to harmonize effectively the interpretation of the scope of the right of reproduction is to confirm that temporary reproduction falls within the scope of the right.

14.18 It has been asserted in the discussions in the Committees of Experts that a reproduction right of wide scope might have some unintended and problematic effects. In principle, there are two ways to avoid such effects. The first is to narrow the definition of the reproduction. The second is by way of limitations of the right. It seems that many countries, having freedom of interpretation with respect to these rights, have already excluded the first possibility. This leaves only the second option: designing a limitations clause which makes it possible to avoid any problematic and unintended effects.

14.19 The provisions proposed in paragraph (2) are intended to focus on incidental, technical, and in some cases technically indispensable instances of reproduction which form part of another authorized or otherwise lawful use of a protected phonogram. The cases shall pass the three-step test of Article 20(2).

14.20 Note 18.06, concerning liability issues, applies with equal force to this Article.

14.21 Proposals concerning the right of reproduction of producers of phonograms were presented for the February 1996 session of the Committees of Experts by Argentina, Brazil, the European Community and its Member States, Japan, the People's Republic of China, the Sudan, the United States of America, and Uruguay. Canada suggested that economic right for producers of phonograms in their phonograms would be included in the Treaty. The European Community and its Member States made a further proposal on this issue for the May 1996 session of the Committee of Experts.

14.22 Article 7 contains provisions concerning the right of reproduction of performers; it corresponds closely to this Article. The Notes on Article 7 concerning comparable elements are parallel to those above.

[End of Notes on Article 14]


Article 14

Right of Reproduction

(1) Producers of phonograms shall enjoy the exclusive right of authorizing the direct or indirect reproduction, whether permanent or temporary, of their phonograms, in any manner or form.

(2) Subject to the provisions of Article 20(2), it shall be a matter for legislation in Contracting Parties to limit the right of reproduction in cases where a temporary reproduction has the sole purpose of making the phonogram audible or where the reproduction is of a transient or incidental nature, provided that such reproduction takes place in the course of use of the phonogram that is authorized by the producer of the phonogram or permitted by law.

[End of Article 14]


Notes on Article 15

15.01 Article 15 provides producers of phonograms with the exclusive right to control modification of their phonograms.

15.02 The Article combines proposals made by Argentina, the United States of America, and Uruguay. Argentina used the term "modification" in its proposal, whereas the other proposals used the terms "adaptation" and "alteration". The term "modification" has been used in proposed Article 8 because it is sufficiently neutral and general and because it does not imply any interference with Article 2(3) of the Berne Convention, according to which certain adaptations and alterations of works may be protected.

15.03 It was suggested in sessions of the Committees of Experts that no separate right of alteration, adaptation, or modification is necessary. It has been argued that any alteration or modification of a performance or a phonogram cannot occur without reproducing the fixation of the performance or the phonogram. This modification right is proposed, however, in order to cover any possible situation in which digital or other technological manipulation might be used to circumvent traditional notions of reproduction.

15.04 Article 8 contains provisions concerning the right of modification of performers; it corresponds closely to this Article. The Notes on Article 8 concerning comparable elements are parallel to those above.

[End of Notes on Article 15]


Article 15

Right of Modification

Producers of phonograms shall enjoy the exclusive right of authorizing the modification of their phonograms.

[End of Article 15]


Notes on Article 16

16.01 Producers of phonograms do not have a general right of distribution of their phonograms under any existing international agreement. The Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, done in Geneva, October 29, 1971, provides producers of phonograms with protection against unauthorized duplication and against unauthorized importation and distribution of duplicates of their phonograms.

16.02 During the discussions that led to the proposed Treaty, it became clear that the principle of a general right of distribution for producers of phonograms, accompanied by appropriate provisions on exhaustion has gained wide international acceptance. However, no convergence of views has developed in respect of the scope or extent of the right of distribution after the first sale or other transfer of ownership of a copy of a phonogram. National legislation differs in this respect. In many jurisdictions, the principle is that in respect of a copy of a phonogram the right of distribution ceases to exist, i.e. is exhausted, after the first sale of that copy. Views differ as to whether the exhaustion should be national, regional or global.

16.03 In many legal systems, the right of rental is considered to be a part of the general right of distribution, and it could even be dealt with in an international instrument in that context. For practical reasons, the right of rental is dealt with as a separate issue in Article 17 of the proposed Treaty. This structure follows the way in which these issues were approached during the preparatory stages.

16.04 Article 16 provides an exclusive right of distribution to producers of phonograms. Because of the differences described in Note 16.02, two alternatives are offered. Alternative A is based on the principle of national or regional exhaustion. Alternative B allows global or international exhaustion. The basic provision on the right of distribution is identical in both alternatives: producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their phonograms through sale or other transfer of ownership. Public lending falls outside the scope of this provision since it does not involve a sale or other transfer of ownership.

16.05 Alternative A also provides a right of importation, in addition to the general right of distribution, to the producers of phonograms in respect of copies of their phonograms.

16.06 Paragraph (1) of Alternative A provides for the exclusive right; item (i) delineates the right of distribution, and item (ii) delineates the right of importation.

16.07 Paragraph (2) allows Contracting Parties to provide in their national legislation that the right of distribution will not apply in respect of copies of phonograms that have been distributed with the consent of the rightholder in the territory of a Contracting Party. The right of importation is not affected by the first sale or other transfer of ownership. Paragraph (3) excludes from the scope of the right of importation those situations where the importation is effected by a person solely for personal and non-commercial use.

16.08 Some proposals presented for the February 1996 session of the Committee of Experts suggested that regional economic integration areas with their own legislation in this field might be explicitly mentioned in the clause concerning national or regional exhaustion. The obligations of the Treaty apply only to regional economic integration areas or organizations that are Contracting Parties to the Treaty. The territories of these Contracting Parties consist of the territories of their member countries. Thus, there is no need to make separate mention of regional economic integration areas.

16.09 Alternative B allows for international exhaustion. Contracting Parties may, in their national legislation, provide that the right of distribution will not extend to distribution after the first sale or other transfer of ownership of the original or copies of a phonogram by or pursuant to authorization. The first sale or transfer of ownership may have taken place in the Contracting Party or anywhere else.

16.10 No right of importation is provided for in Alternative B.

16.11 The rights provided for in the proposed Treaty, including the right of distribution, are minimum rights. Contracting Parties may provide a higher level of protection. A more restricted concept of exhaustion than international exhaustion represents a higher level of protection. Thus, the solution in Alternative B would not preclude any Contracting Party from applying any conditions or restrictions to the circumstances giving rise to exhaustion. National or regional exhaustion is in full conformity with this provision for those Contracting Parties that take this approach to the distribution right. Introduction of a right of importation is not excluded either.

16.12 The main contents of Alternative A follow the proposal of Argentina, Brazil, the European Community and its Member States, the Sudan, the United States of America, and Uruguay for the February 1996 session of the Committees of Experts. Alternative B is based on the main approach taken in the proposals made by Canada and Japan.

16.13 Article 9 contains provisions concerning the right of distribution of performers; it corresponds closely to this Article. The Notes on Article 9 concerning comparable elements are parallel to those above.

[End of Notes on Article 16]


Article 16

Alternative A

Right of Distribution and Right of Importation

(1) Producers of phonograms shall enjoy the exclusive right of authorizing:

(i) the making available to the public of the original and copies of their phonograms through sale or other transfer of ownership;

(ii) the importation of the original or copies of their phonograms, even following any sale or other transfer of ownership of the original or copies by or pursuant to authorization.

(2) National legislation of a Contracting Party may provide that the right provided for in paragraph (1)(i) does not apply to distribution of the original or any copy of a phonogram that has been sold or the ownership of which has been otherwise transferred in that Contracting Party's territory by or pursuant to authorization.

(3) The right of importation in paragraph (1)(ii) does not apply where the importation is effected by a person solely for his personal and non-commercial use as part of his personal luggage.


Alternative B

Right of Distribution

(1) Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their phonograms through sale or other transfer of ownership.

(2) A Contracting Party may provide that the right provided for in paragraph (1) does not apply to distribution after the first sale or other transfer of ownership of the original or copies of phonograms by or pursuant to an authorization.

[End of Article 16]


Notes on Article 17

17.01 The Rome Convention does not contain any provisions on the rental of copies of fixed performances or phonograms.

17.02 In the TRIPS Agreement, producers of phonograms were accorded a right of rental. Article 14.4 of the Agreement obligates Members to apply mutatis mutandis the provisions of TRIPS Article 11, which concerns rental, for the benefit of producers of phonograms and any other rightholders as may exist in phonograms under a Member's national law.

17.03 Paragraph (1) of Article 17 provides producers of phonograms with the exclusive right of authorizing the rental of the original and copies of their phonograms. The rental of phonograms has been defined in Article 2.

17.04 Paragraph (2) contains a clause permitting Contracting Parties to maintain, for a limited period of time, any systems they may have for providing equitable remuneration to producers of phonograms for the rental of copies. This clause has been modelled on Article 14.4 of the TRIPS Agreement. According to the TRIPS Agreement, Members "may maintain such systems provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders". Contracting Parties that, on April 15, 1994, had and continue to have such systems may maintain them; however, instead of leaving this possibility open for an indefinite period of time, a three-year time limit is proposed, beginning from the entry into force of the proposed Treaty.

17.05 The rental right for producers of phonograms was included in the proposals submitted for the February 1996 session of the Committees of Experts by Argentina, Brazil, the European Community and its Member States, Japan, the Sudan, the United States of America, and Uruguay.

17.06 Article 10 contains provisions concerning the right of rental of performers; it corresponds closely to this Article. The Notes on Article 10 concerning comparable elements are parallel to those above.

[End of Notes on Article 17]


Article 17

Right of Rental

(1) Producers of phonograms shall enjoy the exclusive right of authorizing the rental of the original and copies of their phonograms, even after distribution of them by or pursuant to authorization by the producer.

(2) Notwithstanding the provisions of paragraph (1), a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of producers of phonograms for the rental of copies of their phonograms, may maintain that system for a period of 3 years from the entry into force of this Treaty.

[End of Article 17]


Notes on Article 18

18.01 Article 18 introduces a new right for producers of phonograms: the exclusive right of making their phonograms available to the public. Article 18 is based on the May 1996 proposal made by the European Community and its Member States.

18.02 The proposed new right covers the making available of phonograms by wire or wireless means. A distinction is thus made between the distribution of copies of phonograms in physical, tangible form, which is covered by the right of distribution under Article 16, and the making available of phonograms by transmission.

18.03 The right of making available is limited to situations where members of public may access phonograms from a place and at a time individually chosen by them. Thus, the availability is based on interactivity and on on-demand access.

18.04 The proposed new right is designed to operate as a basic rule for the proper functioning of the electronic marketplace. The electronic or digital "record shop" can be compared to a record manufacturing plant or a CD factory. The functions of the manufacturing and distribution portions of the music industry and retail record shops may be replaced by a database open to the public for the direct delivery of music productions via communication networks to home computers.

18.05 The exclusive right laid down in Article 18 covers the making available of phonograms through systems that permit direct access to a certain phonogram stored in a database. The expressions "may access" and "from a place and at a time individually chosen" cover directly all situations that are interactive.

18.06 There are, however, systems and services based on particular technical arrangements and programming structures which make it possible to access the phonograms provided by the service without such access being fully interactive. Such services are offered on a subscription basis. From the point of view of the members of the public these services are "near to interactive". In many cases the only difference between interactive and "near to interactive" is in the time required for access. For both members of the public and rightholders, the shorter the delay, the closer the effect of such practices is to those of services that enable immediate access. The volume of protected subject matter that may be offered to the public in this way, combined with the fact that it may be made available through a number of parallel channels may add significantly to the ease of access. As the technical capacity of storage devices and communication networks grows these services are likely to develop further. They can be established by using cable or wire networks or by wireless means.

18.07 Practices described in the preceding Note could conflict with the normal exploitation of phonograms and unreasonably prejudice the legitimate interests of rightholders. Single channels offered on a subscription basis without being part of such services do not have these effects.

18.08 The proposed right of making available of phonograms in Article 18 is intended to cover both directly interactive ways of making available and services with similar effects, as described above. Both types of service fulfil the criteria laid down in Article 18 since members of the public may access phonograms from a place and at a time individually chosen by theme.

18.09 The right proposed in Article 18 is an exclusive right. This is fundamental.

18.10 It is strongly emphasized that Article 18 does not attempt to define the nature or extent of liability on a national level. The proposed international agreement determines only the scope of the exclusive rights that shall be granted to producers of phonograms in respect of their phonograms. The question of who shall be liable for the violation of these rights and what the extent of liability shall be for such violations is a matter for national legislation and case law according to the legal traditions of each Contracting Party.

18.11 Proposals concerning digital transmission were presented for the February 1996 session of the Committees of Experts by Argentina, the United States of America, and Uruguay. The European Community and its Member States made a proposal on this issue for the May 1996 session of the Committees of Experts.

18.12 Article 11 contains provisions concerning the right of making available of performers; it corresponds closely to this Article. The Notes on Article 11 concerning comparable elements are parallel to those above.

[End of Notes on Article 18]


Article 18

Right of Making Available of Phonograms

Producers of phonograms shall enjoy the exclusive right of authorizing the making available of their phonograms, 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.

[End of Article 18]


Notes on Article 19

19.01 Article 12 of the Rome Convention grants to performers and to producers of phonograms the right to a single equitable remuneration if their phonogram is published for commercial purposes or if a reproduction of the phonogram is used for broadcasting or any communication to the public. The remuneration is paid by the user to the performer or to the producer of the phonogram or to both. In the absence of an agreement between these parties, national legislation may lay down the rules that govern the sharing of this remuneration.

19.02 The right to remuneration is subject to the reservations permitted in Article 16 of the Rome Convention. Under Article 16, any state may declare that it will not apply the provisions of that Article or that it will not apply them in respect of certain uses. Furthermore, a state may declare that it will not apply the right to remuneration in respect of phonograms the producer of which is not a national of another Contracting State. A Contracting State may also make the right to remuneration subject to reciprocity as regards the extent to which, and the term for which, another state grants protection to phonograms fixed by a national of the state making such a reservation.

19.03 Article 19 of the proposed Treaty accords to the producers of phonograms a right to equitable remuneration for the use of their phonograms that are published for commercial purposes or the use of a reproduction of such phonograms for broadcasting or any communication to the public. In general, this right corresponds to the right provided for in Article 12 of the Rome Convention.

19.04 Paragraph (1) does, however, propose additional elements that are not included in Article 12 of the Rome Convention. The right to remuneration would cover not only direct uses of phonograms but also indirect uses for broadcasting or for communication to the public. Remuneration should always be received both by performers and producers. In this way, the proposed Article 19 excludes the possibility that producers of phonograms would not receive at least a single equitable remuneration.

19.05 "Broadcasting" and "communication" are defined in Article 2. The definition of broadcasting covers rebroadcasting as discussed in Note 2.23 above. Communication covers all cases of cable or wire transmission, such as cable-originated television transmissions and sound radio by cable or in communication networks. Because the right covers both direct and indirect uses of phonograms, all forms of retransmission by cable and wire also fall within the scope of the right. The definition of communication also covers situations where a phonogram is played directly to the public present at the same location. Indirect communication of a phonogram covers situations where a radio or television set or other apparatus is used to make a phonogram that is included in a broadcast or wire communication audible to the public in a cafe, restaurant, hotel lobby or other place that is open to the public.

19.06 Paragraph (2) permits Contracting Parties to establish rules governing the way in which remuneration is shared between performers and producers of phonograms and the way in which users pay the required remuneration. These are logistical concerns that are beyond the scope of international agreements.

19.07 As noted above, the right to remuneration under the Rome Convention is subject to reservations. This basic structure has been reproduced in the proposed Treaty. The reservations clause in paragraph (3) leaves the degree of reservation open, subject to the provisions of paragraph (4). Contracting Parties may make minute or more extensive reservations to the right of remuneration. Contracting Parties may even set reciprocity (as to particular terms, such as duration of protection, or complete reciprocity) as a condition for according the remuneration right to performers and producers of phonograms who fulfil the criteria of eligibility in relation to another Contracting Party. Paragraph (3) contains an explicit clause referring to reservations attached to reciprocity in Article 16.1(a)(iv) of the Rome Convention. However, Contracting Parties may not make any reservations to this Article, or the rights provided for therein, that would derogate from their obligations to each other under the Rome Convention; Article 1(1) of the proposed Treaty makes this clear.

19.08 In paragraph ( 4) it is proposed that the possibility of making a reservation to the right of remuneration laid down in this Article would not apply to broadcasting and communication to the public by wire or wireless means which is offered to the public in the form of subscription-based services. The reason for this proposal is that in the context of such services, phonograms are exploited directly for commercial gain.

19.09 The remuneration right proposed in this Article is an attempt to reconcile two extremes: on the one hand, there is the position that performers and producers of phonograms are not entitled to any right to remuneration in respect of the fruits of their labour, on the other hand, there is the position that the right to remuneration should be broad or even that the right should be exclusive. Written proposals concerning this matter were submitted for the February 1996 session of the Committees of Experts by Argentina, Brazil, the European Community and its Member States, Japan, the Sudan, the United States of America, and Uruguay.

19.10 Article 12 contains provisions concerning the right to remuneration of performers; it corresponds closely to this Article. The Notes on Article 12 concerning comparable elements are parallel to those above.

[End of Notes on Article 19]


Article 19

Right to Remuneration for Broadcasting and Communication to the Public

(1) Producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes or reproductions of such phonograms for broadcasting or for any communication to the public.

(2) Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration. In the absence of either national legislation or an agreement between the performer and the producer of a phonogram, the performer and the producer of the phonogram shall equally share the single equitable remuneration between them.

(3) Any Contracting Party may, subject to the provisions of paragraph (4), in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all. In availing itself of this possibility, any Contracting Party may apply the provisions of Article 16.1(a)(iv) of the Rome Convention mutatis mutandis.

(4) The provisions of paragraph (3) do not apply to any broadcasting or any communication by wire or wireless means which can only be received on the basis of subscription and against payment of a fee.

[End of Article 19]


Notes on Article 20

20.01 Article 20 sets forth limitations of and exceptions to the rights of producers of phonograms provided for in this Treaty.

20.02 Paragraph (1) reproduces the main principle of Article 15.2 of the Rome Convention. Contracting Parties may provide at the national level the same kinds of limitations or exceptions with regard to the protection of producers of phonograms under the proposed Treaty as they provide with regard to the protection of copyright in literary and artistic works.

20.03 As drafted, the proposed Treaty incorporates (in this Article) the structure employed in Article 9(2) of the Berne Convention to limit the scope of permitted limitations of and exceptions to authors' reproduction rights. The proposed Treaty applies this structure to all limitations and exceptions permitted to be taken hereunder. The structure includes a three-step test. Any limitations or exceptions must be confined to certain special cases. No limitations or exceptions may ever conflict with the normal exploitation of the protected subject matter. Finally, limitations or exceptions may never unreasonably prejudice the legitimate interests of producers of phonograms.

20.04 Paragraph (2) contains these provisions. Interpretation of them may follow the established interpretation of Article 9(2) of the Berne Convention.

20.05 Written proposals on limitations and exceptions were presented for the February 1996 session of the Committees of Experts by Argentina, Brazil, Canada, the European Community and its Member States, Japan, the Sudan, and the United States of America.

20.06 Article 13 contains provisions concerning limitations and exceptions of rights of performers; it corresponds closely to this Article. The Notes on Article 13 concerning comparable elements are parallel to those above.

[End of Notes on Article 20]


Article 20

Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of producers of phonograms as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works.

(2) Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with the normal exploitation of the phonogram and do not unreasonably prejudice the legitimate interests of the producer of phonograms.

[End of Article 20]


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