Advanced Copyright Issues on the Internet - Fenwick & West LLP

in the case of Article 7, an earlier proposed version of Article 11 contained the phrase “whetherpermanent or temporary,” but this phrase was deleted in the final adopted version. 55Both Articles 7 and 11 define the rights recited therein in terms of “phonograms.”“Phonogram” is defined in Article 2(b) as any “fixation” of the sounds of a performance or ofother sounds other than incorporated in a cinematographic or other audiovisual work.“Fixation” is defined broadly in Article 2(c) as “the embodiment of sounds or therepresentations thereof, from which they can be perceived, reproduced or communicated througha device.” Storage in RAM would seem to satisfy this definition of fixation. Thus, anyunauthorized transmission of a performance, or of the sounds embodied in a phonogram fixingsuch performance, to RAM memory would potentially violate the rights of both the owner of theperformance and of the phonogram. 565556Article 11(2) in an earlier draft, similar to the proposed and later deleted Article 7(2), was also deleted. Article11(2) would have provided: “Subject to the conditions under, and without prejudice to the scope ofapplicability of, Article 19(2), it shall be a matter for legislation in Contracting Parties to limit the right ofreproduction in cases where a temporary reproduction has the sole purpose of making the phonogram audible orwhere a temporary reproduction is of a transient or incidental nature, provided that such reproduction takesplace in the course of use of the phonogram that is authorized by the producer of the phonogram or permittedby law in accordance with this Treaty.”The WIPO Performances and Phonograms Treaty contains a number of important provisions relevant to theInternet that are not discussed elsewhere in this paper. Article 4 requires Contracting Parties to afford nationaltreatment to nationals of other Contracting Parties. Article 5(1) affords moral rights to performers:“Independently of a performer’s economic rights, and even after the transfer of those rights, the performershall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to beidentified as the performer of his performances, except where omission is dictated by the manner of the use ofthe performance, and to object to any distortion, mutilation or other modification of his performances thatwould be prejudicial to his reputation.” A proposed Article 5(4), which was deleted in the final version, wouldhave allowed any Contracting Party to declare in a notification deposited with the Director General of WIPOthat it will not apply the provisions of Article 5.Article 6 grants performers the exclusive right of authorizing the broadcasting and communication to the publicof their unfixed performances (except where the performance is already a broadcast performance) and thefixation of their unfixed performances. Articles 9 and 13 grant performers and producers of phonograms,respectively, the exclusive right of authorizing the commercial rental to the public of the original and copies oftheir performances fixed in phonograms and of their phonograms.Article 15 provides that “[p]erformers and producers of phonograms shall enjoy the right to a single equitableremuneration for the direct or indirect use of phonograms published for commercial purposes for broadcastingor for any communication to the public.” The Agreed Statement for Article 15 provides: “It is understood thatArticle 15 does not represent a complete resolution of the level of rights of broadcasting and communication tothe public that should be enjoyed by performers and phonogram producers in the digital age. Delegations wereunable to achieve consensus on differing proposals for aspects of exclusivity to be provided in certaincircumstances or for rights to be provided without the possibility of reservations, and have therefore left theissue to future resolution.”Under Article 17(1), the term of protection to be granted to performers under the Treaty is at least 50 yearsfrom the end of the year in which the performance was fixed in a phonogram. Under Article 17(2), the term ofprotection to be granted to producers of phonograms under the Treaty is at least 50 years from the end of theyear in which the phonogram was published, or failing such publication within 50 years from fixation of thephonogram, 50 years from the end of the year in which the fixation was made.- 27 -