Berne Convention -- EU proposal

World Intellectual Property Organization, Geneva

Committee of Experts on a Possible Protocol to the Berne Convention, Seventh Session

Committee of Experts on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms, Sixth Session

Geneva, May 22 to 24, 1996

Proposals of the European Community and its Member States1

 

Text of the proposals

In view of the Seventh Session of the Committee of Experts on a Possible Protocol to the Berne Convention and the Sixth Session of the Committee of Experts on a Possible New Instrument for the Protection of Performers and Producers of Phonograms which will take place in Geneva from 22 to 24 May 2020, the European Community and its Member States would like to submit the following proposals:

Proposals:

  • as regards the Protocol to the Berne Convention:
  • I. Right of reproduction;
    II. Right of communication to the Public;
    III. Technical Protection Devices.
  • as regards the New Instrument for the Protection of Performers and Producers of Phonograms:
  • I. Right of reproduction;
    II. Right of Communication to the Public;
    III. Technical Protection Devices.

Submission to WIPO in view of the Seventh Session of the Committee of Experts on a Possible Protocol to the Berne Convention and the Sixth Session of the Committee of Experts on a Possible New Instrument for the Protection of Performers and Producers of Phonograms. (Geneva, May 22-24, 1996)

The present submission of the European Community and its Member States is being made in connection with the work of the Committees of experts of the World Intellectual Property Organization on a Possible Protocol to the Berne Convention and a Possible New Instrument for the Protection of Performers and Producers of Phonograms.

On the occasion of the last two Sessions of both Committees of Experts (Geneva, 4 to 5 and 12 September 2020 and 1 to 9 February 2020 respectively), the European Community and its Members States have submitted several proposals for the consideration of the Committees of Experts. These proposals cover a number of the points being discussed in the contexts of the Berne Protocol and the New Instrument as well as the possible international agreement on the sui generis protection of databases.

On the specific issue of the impact of new technologies on authors' rights and neighbouring rights the European Community and its Members States have made contributions to the debates which have taken place in the previous Committees of Experts, however, no specific written submission has been made so far.

Specific proposals of the European Community and its Member States concerning the impact of new technologies on authors' rights and neighbouring rights are contained in the annex. These proposals are intended to complement the previous submissions made to the Committees of Experts.

In this context the European Community and its Members States consider that the question of the impact of new technologies on Article 3(3) of the Berne Convention could be examined.

The European Community and its Member States consider that, as regards the rights proposed with respect to the Protocol to the Berne Convention, Contracting Parties should be able to apply certain limitations and exceptions traditionally considered acceptable under the Berne Convention. It is also considered that as regards exceptions and limitations to the rights to be included in the New Instrument a proposal on this issue should go along the lines of Article 15 of the Rome Convention.

The attached proposals will be further elaborated upon at the next Session of the Committees of Experts. They are without prejudice to the final views the European Community and its Member States might adopt on this matter in the future in the light of further developments on the discussions.

Proposals as regards the Protocol to the Berne Convention

I. Right of reproduction

Existing treaty language in the Berne Convention (Article 9) should not be modified. 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 work in any electronic medium constitutes a reproduction within the meaning of article 9(1) of the Berne Convention. This includes acts such as uploading and downloading of a work to or from the memory of a computer."

II. Right of communication to the public

Contracting Parties agree that:

"Without prejudice to the rights provided for in articles 11, 11bis, 11ter. 14 and 14bis of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorising any communication to the public of their works, including the making available to the public of their works, by wire or wireless means, in such a way that members of the public may access these works from a place and at a time individually chosen by them."

III. Technical Protection Devices

"Contracting Parties shall make unlawful, and provide for appropriate remedies against the manufacture, distribution and possession for commercial purposes of any device, means or product, by any person knowing or having reasonable grounds to know that its primary purpose or primary effect is to remove, deactivate or circumvent, without authority, any process, mechanism or system which is designed to prevent or inhibit the infringement of any of the rights under the Berne Convention or this Protocol.

 

"Contracting Parties shall make unlawful, and provide for appropriate remedies against the offer or performance of any commercial service by any person knowing or having reasonable grounds to know that its primary purpose or primary effect is to remove, deactivate, or circumvent, without authority any process, any mechanism or system which is designed to prevent or inhibit the infringement of any of the rights under the Berne Convention or this Protocol."

as regards the New Instrument for the Protection of Performers and Producers of Phonograms.

I. Reproduction:

(i) "Performers shall enjoy the exclusive right to authorise the direct or indirect reproduction of a fixation of their performances in any manner or form."

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 fixed performance in any electronic medium constitutes a reproduction. This includes acts such as uploading and downloading of a fixed performance to or from the memory of a computer."

(ii) "Producers of Phonograms shall enjoy the exclusive right to authorize the direct or indirect reproduction of their phonograms, in any manner or form."

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."

II. Right of communication to the public

The proposal regarding the communication to the public and broadcasting rights made by the European Community and its Member States (document INR/CE/V/2 dated 20 November 2020) should be completed with the following provision:

(i) "Performers shall enjoy the exclusive right to authorise the making available to the public of fixations of their performances, by wire or wireless means, in such a way that members of the public may access these fixed performances from a place and at a time individually chose by them."

(ii) "Producers of phonograms shall enjoy the exclusive right to authorise the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access these phonograms from a place and at a time individually chosen by them."

III. Technical Protection Devices

"Contracting Parties shall make unlawful, and provide for appropriate remedies against the manufacture, distribution and possession for commercial purposes of any device, means or product, by an person knowing or having reasonable grounds to know that is primary purpose or primary effect is to remove, deactivate or circumvent, without authority, any process, mechanism or system which is designed to prevent or inhibit the infringement of any of the rights under this Instrument.

Contracting Parties shall make unlawful, and provide for appropriate remedies against the offer or performance of any commercial service by any person knowing or having reasonable grounds to know that its primary purpose or primary effect is to remove, deactivate, or circumvent, without authority any process, mechanism or system which is designed to prevent or inhibit the infringement of any of the rights under this Instrument."

 

 

[End of document]


1

Reviewed by the Director General on May 25, 2020, in a letter signed by Messrs. Jean-Pierre Lang, Ambassador, Head of the Permanent Delegation of the European Commission and Giuseppe Balducci, Ambassador, Permanent Representative of Italy.

 

DFC Site Map

This site is operated by the Digital Future Coalition (DFC).

IF you have trouble with this site, please contact dfc@dfc.org

 

Display the top matches that score at least