00-30331. 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.

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 [phone] or by electronic mail through the Internet to [e-mail]. 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 [phone]; by facsimile at [phone]; by electronic mail to [e-mail]; 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 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?

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.