1 Impact of New Technologies on Copyright and Related Rights: The WCT and WPPT WIPO Intermediate Interregional Seminar, Geneva, October Víctor Vázquez, Senior Legal Counsellor Copyright E- commerce, Technology and Management Division, WIPO

2 The Berne Convention n Adopted in 1886 n Revised at regular intervals to respond to new technological developments over the last century u Sound recording technology u Photography u Radio u Film u Television

3 The Berne Convention n ‘guided development’ in the 1970s-80s u Based on interpretation of existing international norms F To respond to new technologies such photocopying, video technology, compact cassettes & home taping, satellite broadcasting, cable transmissions, increasing importance of computer programs, ‘multi media’ works, electronic databases n By the end of 1980s, it became clear that new binding international standards had to be agreed upon u Uruguay Round GATT negotiations (TRIPS) u WIPO Committee of Experts

4 The Berne Convention n TRIPS (1994) incorporated some results of the period of ‘guided development’ but did not respond to all issues posed by the latest technological advancements that were occurring throughout the period of GATT negotiations u Digital technology and the Internet n WIPO Diplomatic Conference in December 1996 adopted 2 new treaties – WCT & WPPT

5 Reasons for New WIPO Treaties ¶ Clarify existing standards / norms ¶ To provide some answers to technological developments which have fundamentally affected ways in which works may be created, disseminated & utilized WPPT WCT

6 Subject Matter of the Treaties n WCT u Same concept & extent of literary and artistic works as is applicable under the Berne Convention n WPPT u Performances u Phonograms

7 WCT – link to Berne n WCT is a special agreement under Article 20 of Berne Convention u Art. 20 – “governments … reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention” n Crucial Link - interpretation of WCT cannot lead to lower level of protection given by Berne (WPPT - no such link)

8 WCT – further link to Berne n Articles 1 to 21 & Appendix of Berne Convention to be applied by members (including Article 6bis, unlike TRIPS) u The 1971 Paris Act of Berne Convention u Any member country of WIPO, irrespective of whether it is a party to Berne, can accede to WCT n No links to any other treaty

9 WCT - Storage/Reproduction in an Electronic Medium “ The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.”

10 WCT - Storage of works in digital form in electronic medium n Agreed Statement that Article 9 of Berne fully applies in the digital environment. Hence: u Art. 9(1)-Reproduction in ‘any manner or form’ irrespective of duration; and whether of a temporary nature u Art. 9(2)-Justified exceptions, such as for transient and incidental copies, provided they comply with the 3-step test (Reference : WCT [Article 1(4)] & WPPT [Articles 7 &11 ]

11 WCT - Storage of works in digital form in electronic medium n In consequence: storage of a protected work in digital form in an electronic medium is reproduction within Article 9, Berne (Agreed statement concerning article 1.4- reference to BC)

12 WCT – Right of making available (Transmissions in interactive digital networks) n 2 possible existing rights were identified u Communication to the public u Distribution F These Berne Convention rights do not offer full coverage – the former does not extend to certain category of works while the latter expressly covers only cinematographic works F National laws also differed greatly in this respect; difficult to arrive at a consensus

13 WCT – Right of making available (Transmissions in interactive digital networks) n ‘Umbrella’ Solution u Act of digital transmission should be described in a neutral way u Should convey the interactive nature of digital transmissions u The gaps in Berne in the coverage of the relevant rights should be eliminated u In the actual choice of rights, countries should be left with sufficient freedom

14 WCT – Right of making available (Transmissions in interactive digital networks) n ‘Umbrella’ Solution – because the number of countries which preferred the option of using the right of communication to the public were more: u WCT extends applicability of right of communication to public to all categories of works u Clarifies that the right also covers transmission in interactive systems n However, Parties free to implement this obligation (of making available to the public) through a right other than the right of communication to the public, such as distribution right or a specific new right

15 WCT – Right of making available (communication to the public) n Authors of literary and artistic works given exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access from a place and time individually chosen by them. (Article 8, WCT)(Article 8, WCT) (Similar provision for performers and phonogram producers in Articles 10 & 14, WPPT)

16 WCT – Right of making available Agreed Statement - the mere provision of physical facilities for enabling or making a communication does not in itself amount to a communication within the meaning of the treaty But liability can arise from other acts than mere transmission

17 Technological measures of protection Rights management information n “The answer to the machine lies in the machine” (Charles Clark) n Legal measures needed to protect the technological protection measures and rights management information

18 Technological measures of protection Rights management information Obligation to provide adequate legal protection and remedies against n circumvention of technological measures that restrict unauthorized acts, n removal/alteration of electronic rights management information. (Ref : WCT Articles 11 & 12, WPPT Articles 18 & 19)

19 Technological measures of protection Rights management information n ‘Rights Management Information’ defined as “information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information …”

20 WCT - The Right of Distribution n Q: Can a distribution right be deduced as an indispensable part to the right of reproduction (concept of implicit recognition of the right of distribution), or should a separate right be clearly specified?

21 WCT-The Right of Distribution n Article 6(1), WCT – “Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership” u Clarification of obligations under Berne Convention (and also under TRIPS); or u Berne + TRIPS +

22 WCT - Rental Rights Authors of : - computer programs; - cinematographic works; and - works embodied in phonograms, shall have exclusive right of commercial rental to public of originals or copies of their works (WCT, Article 7) Identical to Articles 11 & 14.4 of TRIPS

23 WCT - Limitations on Rental Rights n If computer program not essential object of the rental n Films – unless rental has led to widespread copying materially impairing the reproduction right n State can maintain existing equitable remuneration for rental, provided this does not materially impair reproduction rights [Rental Rights in WPPT - Articles 9 & 13]

24 WCT- Clarifications & Others n Computer programs protected as literary works (Art 4) n Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such (Art 5) n Photographs - duration extended to 50 years

25 WPPT - Linkage to other Treaties n No link with the Rome Convention, unlike the link between WCT and Berne u Application of substantive provisions of Rome is not an obligation u Only a few provisions of Rome are included by reference (relating to criteria for eligibility)

26 WPPT - Rights of Performers n The coverage of rights of performers under the WPPT goes beyond the Rome Convention and TRIPS Agreement n Key difference in the nature of rights – exclusive right versus ‘possibility of preventing’ n Economic rights: u Right of broadcasting & communication to the public of unfixed performances u Reproduction right u Rental right

27 WPPT - Performers’ Moral Rights n Moral right for live aural performances or performances fixed in phonograms - Right to object to distortion, mutilation or modification of performances prejudicial to a reputation - Right to claim to be identified as performer F Exception - where omission dictated by manner of use n No performers’ rights in audio-visual performances

28 WPPT - Rights of phonogram producers n Same rights as those granted under TRIPS Agreement u Reproduction right u Rental right n Direct or indirect reproduction in any manner or form (article 7)

29 WPPT - Storage of works in digital form in an electronic medium n Agreed Statement that “the reproduction right, as set out in Articles 7 & 11, and the exceptions permitted under Article 16, fully apply in the digital environment, in particular to the use of performances and phonograms in digital form. It is understood that the storage of a protected performance or phonogram in digital form in an electronic medium constitutes a reproduction within the meaning of these Articles”

30 WPPT - Transmission of works in digital networks (On-line transmissions) n The ‘Umbrella’ Solution u Articles 10 & 14 accord ‘the exclusive right of authorizing the making available to the public of performances fixed in phonograms, and of the phonograms respectively, 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’

31 WPPT - Transmission of works in digital networks (On-line transmissions) n The ‘Umbrella’ Solution u Differs from WCT in that WPPT grants a specific right but, in identical manner with WCT, gives freedom to C/Parties to implement it through introduction of this specific right or via other rights u WCT includes this as a part of the right of communication to the public but gives freedom to C/Parties to implement it via other rights

32 WPPT - Liability of Service and Access Providers n Although not expressly stated, it is clear that the principle contained in the Agreed Statement adopted with Article 8, WCT – - applies mutatis mutandis to Articles 10 & 14 of WPPT n Although not expressly stated, it is clear that the principle contained in the Agreed Statement adopted with Article 8, WCT – the mere provision of physical facilities for enabling or making a communication does not in itself amount to a communication - applies mutatis mutandis to Articles 10 & 14 of WPPT

33 WPPT - the Distribution Right n Identical to Article 6 of WCT for both performances and phonogram producers

34 WPPT - Remuneration for broadcasting and communication to the public n “Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public” (Article 15, WPPT) n Largely similar to Article 12, Rome Convention u Difference – while Rome leaves it to national legislation to grant right to performer, producer or both, WPPT requires that right must be granted to both, in the form of a single remuneration

35 WPPT - Technological measures of protection Rights management information n Similar to WCT provisions

36 Effective Dates/Accessions n WCT (67 members as of 2008) u Came into force on 6 March 2002 n WPPT (66 members as of 2008) u Came into force on 20 May 2002

37 Exceptions and Limitations WCT n Article 1 to 21 Berne Convention. Article 1(4) and agreed statement (reproduction in the digital environment) n General exception: 3-step test. Article 10(1) and agreed statement: Existing exceptions can be kept or extended to the digital environment. New exceptions can be devised WPPT n Exceptions to the rights granted under WPPT must follow 3-step test. Article 16(2) n Any other copyright exception that exists for copyright. Article 16(1)

38 Exceptions and Limitations Environments: Analog different from digital? n International Treaties do not extend or reduce the scope of applicability of L&E permitted in the analog environment n Whether new exceptions are needed in the digital environment n Whether existing exceptions from the analog environment remain appropriate in the digital environment, or need to be restricted in some way in that environment

39 Exceptions and Limitations Are existing exceptions still appropriate? n News reporting, quotations n Libraries and teaching purposes: reproduction of material and communication to the public and making available under certain circumstances n Private copying: quality of copies and possibility of dissemination

40 Exceptions and Limitations 3-Step Test as a common rule n Article 9(2) Berne Convention, Article 13 TRIPS Agreement, Articles 10(2) WCT and 16(2) WPPT u certain special cases u do not conflict with normal exploitation u do not prejudice the legitimate interests of right holders n WTO Panel Decision, June 2000 (EU v. US) home- style exception regarding playing of radio or television broadcasts of musical works in certain bars, restaurants and other retail establishments

41 Exceptions and Limitations New Exceptions: n Temporary electronic copies which occur as part of the technical process of making Internet transmission. n Caching and browsing: temporary reproduction which occurs at the point of reception to enable the view of the accessed material n Making available of content in the premises of a cultural institution

42 Exceptions and Limitations SCCR 16 Brasil, Chile, Nicaragua and Uruguay Proposal Three areas of work: n 1.Identification, from the national intellectual property systems of Member States, of national models and practices concerning exceptions and limitations. n 2.Analysis of the exceptions and limitations needed to promote creation and innovation and the dissemination of developments stemming therefrom. n 3.Establishment of agreement on exceptions and limitations for purposes of public interest that must be envisaged as a minimum in all national legislations for the benefit of the community; especially to give access to the most vulnerable or socially prioritized sectors

43 Exceptions and Limitations WIPO activities n Studies and meetings u Studies on limitations and exceptions in the digital environment u Information meetings on digital content for the visually impaired, libraries and educational uses u DRM study on distance education and visually impaired n Technical legal assistance to developing countries u needs of countries / implementation of treaties u model law on copyright and related rights

44 Exceptions and Limitations Possible Future Works n Use and abuse of technological measures of protection, digital rights management, and contract law n Privacy concerns: ISPs are often requested by right owners to disclose information about users n Inadequate information for users: copy protection, interoperability n Access to knowledge and public domain (orphan works) n Preservation of cultural heritage.

45 Thank you !