WIPO New Instrument Meetings

Attached is my summary of the three days of meetings at WIPO this week on the New Instrument for protection of performers and producers of phonograms.

I did not prepare this summary sooner because: (1) I started sleeping better once the jet lag wore off. (2) I received a number of positive and negative comments at WIPO concerning the fact that I had prepared and distributed these summaries over the Internet. I wanted to consider these comments before acting further. My conclusion was, as many delegates told me, on balance it was a good thing. Personally, I became somewhat concerned that any summary, no matter how detailed, can never fully capture certain intended nuances in diplomatic language. Consequently, this summary largely addresses issues discussed, and only identifies a few governmental speakers.

The delegate from Canada, Bruce Couchman, asked that I include his internet address in my next summary: couchman.bruce[_at_]istc.ca

     From December 12-15, 1994, the Committee of Experts held its third session at WIPO to consider a possible instrument for the protection of the rights of performers and producers of phonograms (the "New Instrument"). After the first two sessions, the Committee had considered all issues in the proposed WIPO document, so this meeting considered the issues for the second time in some greater detail.

     The Chairman (Jukka Liedes of Finland) suggested that, to make greater progress, issues previously discussed in great detail at the prior week's Berne Protocol meeting and issues already resolved in TRIPS might not require full debate. Nevertheless, progress was quite slow; only a few issues were discussed in detail, and some may still be far from resolved.

Scope of the New Instrument; Inclusion of Audiovisual Fixations

     The general debate, opened only to governments, concerned the scope of the instrument and the order of work to be considered. It was noted by the Chairman and the International Bureau (Mr. Ficsor) that the scope as defined by the WIPO governing body did not specifically include performers in fixations of audiovisual works (e.g., actors in films), but nothing precluded the discussion of such audiovisual fixations. (The WIPO proposed text thus addresses only fixations of sounds in audiovisual works, but not the audiovisual work itself.)

     Most governmental delegations, led by the delegation from the Commission on the European Union ("EC"), argued that rights in performances fixed in audiovisual works should be included on the agenda. (It was observed that at the second meeting, WIPO had agreed to prepare a memorandum specifically addressing such rights.) The major dissenting party in this debate was the United States, which prefers that the rights of performers in fixations of audiovisual works be managed by contract rights and not by a prescribed legal regime. Another delegation said they preferred that WIPO would separately study this issue.

     Numerous delegations noted the impact of new digital technologies and delivery systems on the New Instrument, and sid that the forthcoming results of studies underway in several countries could influence the future course of the instrument.

     Several governments described new provisions in their laws affecting the rights of performers and producers of phonograms. The United States (Mike Keplinger) explained the federal antibootlegging laws recently approved as part of the GATT implementing legislation, and he provisions to restore copyrights in post-1972 sound recordings where protection expired for failure to renew or failure to comply with formalities. He remarked that a bill to grant performance rights in sound recordings, limited to digital broadcasts and transmissions, was introduced last Congress and had the support of the Administration. He said the bill was not passed, but that he expected the bill to be reintroduced in the next session. The Canadian delegation noted that its TRIPS implementing legislation containing, inter alia, provisions against unauthorized fixation, broadcast or transmission of live performances, was pending before Parliament with passage expected soon.

Economic Rights -- Definitions

     The debate on specific provisions of the WIPO draft first addressed definitions, the sense being that it might be easier to discuss substantive rights with some general consensus as to the terms used. Views on definitions were so varied that at the end of the debate, rather than summarize the opinions, the Secretariat decided to issue in several months a near-verbatim transcript of the delegations' views. A few of the definitions and issues discussed are summarized below:

_communication to the public_: should it cover all forms of
dissemination, including broadcasting, cable, satellite and digital delivery? Should the definition also cover point-to- point transmissions? Should _public_ be defined (as the normal circle of family and closest social acquaintances) or be left to national laws? Should "broadcasting," and "communication to the public be subsets of a broader definition of "transmission to the public"?

_fixation_: should the definition make clear that the first
fixation is what is intended? Should the definition refer to the "authorized" fixation? Should it be broad enough to cover any fixation capable of being communicated or transmitted?

_public performance_: should exceptions be included for
performance in certain places, for example, classrooms and places of worship?

_performers_: should audiovisual performers be included?

_phonograms_: is "digital representations of sounds"
necessary so as to cover computer codes used to reproduce sounds but not representing sounds (such as MIDI files)? Should such "digital representations" be placed in a separate category? Should the word "digital" be omitted from the definition so as not to make the definition technology-dependent (hence, potentially obsolete in the future)? Should it be made clear that digital remastering of a pre-existing analog phonogram is not production of a phonogram, so as to avoid extending indefinitely the term of protection? Should the definition be linked to "fixation" rather than representation of sounds? Should "phonograms" include music videos? Should the definition make clear that digital phonograms may include incidental text, images or codes? Does a phonogram have to be a fixation of a work? Are fixations of "expressions of folklore" adequately covered?

_publication_: should the standard be "reasonable
availability"? Should the consent of the author of the works embodied in the phonogram be required before a publication occurs?

_reproduction_: should only copying of substantial portions
of a phonogram be covered, or should the copying of any amount be covered? Or is "substantial" qualitative rather than quantitative? Should reproductions of even transitory duration in computer memory be covered, as the definition currently suggests? Should the quality of the reproduction matter?

     It was noted by the Chairman at the conclusion of the debate that there seemed to be consensus that definitions were important in this instrument, despite the virtual absence of definitions from the Berne Convention or the TRIPS agreement.

Economic Rights -- Distribution, Exhaustion/Importation and Rental

     This debate largely mirrored the debate on these issues held last week with respect to the Berne Protocol.

     There was general acceptance of a right of distribution. IFPI (phonogram producers) suggested that the right should extend to distributions by any technological means or process. CISAC (broadcast music licensing) thought IFPI's proposal was premature (presumably in light of their position that any transmission is a performance rather than a distribution).

     Regarding importation, there was general agreement that the instrument should provide the right to prevent importations of unauthorized fixations; but as to authorized fixations, there was a split of opinion as to whether any unauthorized importation should be prohibited, whether any authorized fixation should be freely importable, or whether there should be exhaustion on a regional basis. Several smaller or remote countries supported importation of authorized recordings. Others noted that an importation right was critical to the development of a GII. IFPI thought that in would be a mistake to allow a "suitcase exemption" for works transported by individuals, and that rights should not be denied because of the impossibility of general enforcement.

     Rental rights were accepted, with the possibility for a limited time of allowing rental in exchange for equitable remuneration. Several delegations asked that public lending rights should be excluded.

     Regarding the right of communication to the public, several delegations noted the overlap between this concept and broadcasting, and wondered whether the rights should not be structured differently. Some delegations questioned whether digital communications were of such a different character that there should be higher levels of protection; and, if so, should such higher levels of protection apply to broadcast, satellite or cable, or just to on-demand delivery. The European Commission and several European countries, in particular, expressed hesitation over the concept that on-demand systems were qualitatively different so as to support different treatment. The UK doubted that the difference was between digital and analog, but rather between whether the content of the transmission was determined by the user or the provider. Several delegations supported the proposal that rights of broadcast or communication generally could be subject to a right of equitable remuneration for the communication, rather than an exclusive right to prevent it. Many delegates supported further study of this issue.

     The United States (Mike Keplinger) emphasized the importance of this issue to the development of the GII. He said a right of remuneration was not appropriate, and that exclusive rights were necessary in light of the potential for such transmissions to substitute for sales. While collective administration of these rights might be one way to address the issue of remuneration, he opposed making collective administration mandatory, preferring instead to let develop a marketplace solution such as electronic licensing. he then asked Register of Copyrights Marybeth Peters to explain the project to develop an Electronic Copyright Management System for licensing. The project "testbed" system permits such faculties as electronic registration, digital signatures for authenticity, electronic deposit, and a definition of terms and conditions of permissible use. A unique identifier could be assigned to the works by the Internet Society, along with public key/private key encryption to control authorization and access. This would create a national library that could connect to other licensing systems and collective administration agencies. The user keys in to the work, obtains access or a copy, and could make requested payments in a manner that would direct the money to the rightholders in a manner transparent to the user. However, she said, this is one idea and that other systems are being developed.

     Among the non-governmental organizations, broadcasters generally took the position that broadcasting is no different in analog or digital forms, and that broadcasting and on-demand systems were different. They opposed performance royalties for broadcasts in light of the fact that broadcasting stimulates sales. IFPI and the Max Planck Institute argued that subscription services such as Digital Music Express or Digital Cable Radio should be treated the same as on-demand delivery. A few producer and performer representatives argued that remuneration was necessary in light of the possibility of home recording. EIA argued that any right to performance royalties was a separate issue from home recording, in light of the small amount of home recording of broadcasts. AFTRA (representing performers) and CISAC (representing songwriters) "squared off" on whether the exclusive rights should remain with the singer or the songwriter.

Moral Rights and Adaptation Rights

     Most delegations supported moral rights for performers in phonograms. As to the term of protection, most agreed that the duration of the moral rights should at least be coextensive with the economic rights granted, and should be inheritable. A few delegations supported a longer term. Several delegations supported or, conversely, questioned the necessity of qualifications to the right, i.e., that any right of paternity (to be identified with the work) should be "as far as practicable"; and that any right of integrity should be only the right to object to "serious" distortion, mutilation or modification, or that the resulting prejudice to reputation should be "grave." A number of delegations, including the United States, said that care must be taken so as not to inhibit parody or satire.

     Regarding a right to control adaptation, several delegations opined that the right was unnecessary in light of the right to control reproduction. Some delegations said that any adaptation should have to be substantially similar to be actionable. Others, including many non-governmental organizations, noted that a right of adaptation was essential in light of sampling and other digital technologies that can economically exploit small portions of sound recordings.

Conclusion -- Next Session

     Because of the length of the debates on these few issues, the Committee never resumed the discussion of enforcement and technical protections, left over from last week. EIA distributed a position paper on this issue, which is attached hereto.

     At the end of the session, it was decided that the next meeting will occur in the last week of August, with debate on the issues from Monday through Friday, as a joint meeting of the Berne Protocol and New Instrument committees. The report would be issued either the following Tuesday or Wednesday. It was left open as to whether the work would proceed simultaneously on both instruments, or should be separated in some manner. The discussions will be based on documents that are to be submitted to WIPO by the governments on or before June 15, 1995. WIPO will prepare for the meeting a memorandum addressing rights of performers in fixations of audiovisual works.

     The view expressed privately by some representatives is that while progress on the Berne Protocol was significant, the New Instrument may be stalled absent resolution over the issue of audiovisual performers' rights. The August meeting may potentially be a critical point in the process.

     WIPO also has scheduled a symposium for the Mexico City between April 22-25, 1995. This symposium may be significant; several governments that currently are working on reports should be giving presentations on their respective conclusions.

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