WIPO final outcome


Subject: WIPO final outcome
From: Emanuella Giavarra (ecup.secr@dial.pipex.com)
Date: ma 23 joulu  1996 - 17:53:18 EET


Dear list members,

I have just returned from Geneva and would like to inform you about the
final outcome of the WIPO Diplomatic Conference.

After long nights and early mornings of negotiations and discussions a
fairly good compromise on the WIPO Copyright Treaty was adopted just
before midnight of the 20th December 1996. The plenary session continued
after that and the Treaty was signed by most of the members at 2 o'clock
in the morning of 21st December 1996.

Also the WIPO Performances and Phonograms Treaty was adopted and as
you already know the Database Treaty has been left for a later occasion.
In a separate message I will give the outcomes of the Performances
and Phonograms Treaty.

I will start by giving you a summary of the results important to the
library community and will continue with the approved text of the
SUBSTANSIVE PROVISIONS OF TREATY N0.1: WIPO COPYRIGHT TREATY.

The full text of the two treaties will be available from the WIPO
secretariat at the end of January 1997. In this message I have put the
text which was handed out at the WIPO Conference. Please note that the
numbering of the articles of the final text (given in this message)
differ from the numbering in the previous WIPO documents.

SUMMARY

WIPO COPYRIGHT TREATY
* addition to the Preamble as proposed by EBLIDA
* deletion of Article 7 - Right of Reproduction, replaced by partly
an agreed statement and partly a voted statement
* adoption of Alternative B of Article 8 - Right of Distribution with
amendments
* Article 9 - Right of Rental only applies to commercial rental
* adoption of Article 10 with amendments and an agreed statement
* adoption of Article 12 with amendments and an agreed statement

An agreed statement is given as an interpretation tool for the articles
adopted by the members of the Union at the Diplomatic Conference.
Individual statements given at the meeting for certain articles do not
have this status.

SUBSTANSIVE PROVISIONS OF TREATY No.I

Preamble

The Contracting Parties,

Desiring to develop and maintain the protection of the rights of authors
in their literary and artistic works in a manner as effective and uniform
as possible,

Recognizing the need to introduce new international rules and clarify the
interpretation of existing rules in order to provide adequate solutions
to the questions raised by new econonomic, social, cultural and
technological developments,

Recognizing the profound impact of the development and convergence of
information and communication technologies on the creation and use of
literary and artistic works,

Emphasizing the outstanding significance of copyright protection as an
incentive for literary and artistic creation,

Recognizing the need to maintain a balance between the rights of authors
and the larger public interest, particularly education, research and
access to information, as reflected in the Berne Convention,

Have agreed as follows:

ARTICLE 1

RELATION TO THE BERNE CONVENTION

(1) This Treaty is a special agreement within the meaning of Article 20
of the Berne Convention for the Protection of Literary and Artistic
Works, as regards Contracting Parties that are countries of the Union
established by that Convention. This Treaty shall not have any connection
with treaties other than the Berne Convention, nor shall it prejudice
any rihghts and obligations under any other treaties.

(2) Nothing in this Treaty shall derogate from existing obligations that
Contracting Parties have to each other under the Berne Convention for the
Protection of Literary and Artistic Works.

(3) Hereinafter,"Berne Convention" shall refer to the Paris Act of July
24, 1971 of the Berne Convention for the Protection of Literary and
Artistic Works.

(4) Contracting Parties shall comply with Articles 1 to 21 and the
Appendix of the Berne Convention

AGREED STATEMENT FOR THE RIGHT OF REPRODUCTION (PREVIOUS ARTICLE 7)

Contracting Parties confirm that 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

UNAGREED STATEMENT FOR THE RIGHT OF REPRODUCTION (ADOPTED BY VOTE)

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.

ARTICLE 2

SCOPE OF COPYRIGHT PROTECTION

Copyright protection extends to expressions and not to ideas, procedures,
methods of operation or mathematical concepts as such.

AGREED STATEMENT ARTICLE 2: It is understood tat in applying Article 2 of
this Treaty, the expression "country of the Union" in Article 2 to 6 of
the Berne Convention will be read as if it were a reference to a
Contracting Party to this Treaty, in the application of those Berne
Articles in respect of protection provided for in this Treaty. It is also
understood that the expression "country outside the Union" in those
Articles in the Berne Convention will, in the same circumstances, be read
as if it were a reference to a country that is not a Contracting Party to
this Treaty, and that "this Convention" in Articles 2(8), 3, 4 , and 5 of
the Berne Convention will be read as if it were a reference to the Berne
Convention and this Treart. Finally, it is understood that a reference in
Articles 2 to 6 of the Berne Convention to a "national of one of the
countries of the Union" will, when these Articles are applied to this
Treaty, mean, in regard to an intergovernmental organization that is
Contracting Party to this Treaty, a national of one of the countries that
is member of that organization.

ARTICLE 3

APPLICATION OF ARTICLES 2 to 6 OF THE BERNE CONVENTION

Contracting Parties shall apply mutatis mutandis the provisions of
Articles 2 to 6 of the Berne Convention in respect of the protection
provided for in this Treaty.

ARTICLE 4

COMPUTER PROGRAMS

Computer programs are protected as literary works within the meaning of
Article 2 of the Berne Convention. Such protection applies to computer
programs, whatever may be the mode or form of their expression.

AGREED STATEMENT ARTICLE 4: The scope of protection for computer programs
under Article 4 of this Treaty, read with Article 2, is consistent with
Article 2 of the Berne Convention and on a par with the relevant
provisions of the TRIPS Agreement.

ARTICLE 5

COMPILATION OF DATA (DATABASES)

Compilations of data or other material, in any form, which by reason of
the selection or arrangement of their contents consitute intellectual
ceations, as protected as such. This protection does not extend to the
data or the material itself and is without prejudice to any copyright
subsisting in the data or material contained in the compilation.

AGREED STATEMENT ARTICLE 5: The scope of protection for compilations of
data (databases) under Article 5 of this Treaty, read with Article 2, is
consistent with Article 2 of the Berne Convention and on a par with the
relevant provisions of the TRIPS Agreement.

ARTICLE 6

RIGHT OF DISTRIBUTION

(1) 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.

(2) Nothing in this Treaty shall affect the freedom of Contracting
Parties to determine the conditions, if any, under which the exhaustion
of the right in paragraph (1) applies after the first sale or other
transfer of ownership of the original or a copy of the work with the
authorization of the author.

ARTICLE 7

RIGHT OF RENTAL

(1) Authors of:

(i) computer programmes;
(ii) cinematographic works; and
(iii) works embodied in phonograms as determined in the national law of
Contracting Parties, shall enjoy the exclusive right of authorizing
commercial rental to the public of the originals or copies of their
works.

(2) Paragraph (1) shall not apply:

(i) in the case of computer programs where the program itself is not the
essential object of the rental; and
(ii) in the case of cinematographic works, unless such commercial rental
has led to widespread copying of such works materially impairing the
exclusive right of reproduction.

(3) Notwithstanding the provisions of paragraph (1), a Contracting Party
that, on April 15, 1994, had and continues to have in force a system of
equitable remuneration of authors for the rental of copies of their works
embodied in phonograms may maintain that system provided that the
commercial rental of works embodied in phonograms is not giving rise to
the material impairment of the exclusiove rights of reproduction of
authors.

AGREED STATEMENT ARTICLES 6 AND 7: As used in these Articles, the
expressions "copies" and "original and copies," being subject to the
right of distribution and the right of rental under the said Articles,
refer exclusively to fixed copies that can be put into circulation as
tangible objects.

AGREED STATEMENT ARTICLE 7: It is understood that the obligation under
Article 7(1) does not require a Contracting Party to provide an exclusive
right of commercial rental to authors who, under that Contracting Party's
law, are not granted rights in respect of phonograms. It is understood
that this obligation is consistent with Article 14(4) of the TRIPS
Agreement.

ARTICLE 8

RIGHT OF COMMUNICATION TO THE PUBLIC

Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i)
and (ii), 11ter (1)(ii), 14(1)(ii) and 14 bis(1) of the Berne Convention,
authors of literary and artistic works shall enjoy the exclusive right of
authorizing any communication, to the public of their works, by wire and
wireless means, including the making available to the public of their
works in such a way that members of the public may access these works
from a place and at a time individually chosen by them.

AGREED STATEMENT ARTICLE 8: It is understood that the mere provision of
physical facilities for enabling or making a communication does not in
itself amount to communication within the meaning of this Treaty or the
Berne Convention. It is further understood that nothing in Article 10
precludes a Contracting Party from applying Article 11bis(2).

ARTICLE 9

DURATION OF THE PROTECTION OF PHOTOGRAPHIC WORKS

In respect of photographic works, the Contracting Parties shall not apply
the provisions of Article 7(4) of the Berne Convention.

ARTICLE 10

LIMITATION AND EXCEPTIONS

(1) Contracting Parties may, in their national legislation, provide for
limitations of or exceptions to the rights granted to authors of literary
and artistic works under this Treaty in certain special cases that do not
conflict with a normal exploitation of the work and do not unreasonably
prejudice the legitimate interests of the author.

(2) Contracting Parties shall, when applying the Berne Convention,
confine any limitations of or exceptions to rights provided for therein
to certain special cases which do not conflict with a normal exploitation
of the work and do not unreasonably prejudice the legitimate interests of
the author.

AGREED STATEMENT ARTICLE 10: It is understood that the provisions of
Article 10 permit Contracting Parties to carry forward and appropriately
extend into the digital environment limitations and exceptions in their
national laws which have been considered acceptable under the Berne
Convention. Similarly, these provisions should be understood to permit
Contracting Parties to devise new exceptions and limitations that are
appropriate in the digital network environment.

It is also understood that Article 10(2) neither reduces nor extends the
scope of applicability of the limitations and exceptions permitted by the
Berne Convention.

ARTICLE 11

OBLIGATIONS CONCERNING TECHNICAL MEASURES

Contracting Parties shall provide adequate legal protection and effective
legal remedies against the circumvention of effective technological
measures that are used by authors in connection with the excercise of
their rights under this Treaty or the Berne Convention and that restrict
acts, in respect of their works, which are not authorized by the authors
concerned or permitted by law.

ARTICLE 12

(1) Contracting Parties shall provide adequate and effective legal
remedies against any person knowingly performing any of the following
acts knowingly or, with respect to civil remedies having reasonable
grounds to know, that it will induce, enable, facilitate or conceal an
infringement and any right covered by this Treaty or the Berne
Convention:

(i) to remove or alter any electronic rights management information
without authority;
(ii) to distribute, import for distribution, broadcast or communicate to
the public, without authority, works or copies of works knowing that
electronic rights management information has been removed or altered
without authority.

(2) As used in this Article, "rights management information" means
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, when any of these items of information is attached to a copy
of a work or appears in connection with the communication of a work to
the public.

AGREED STATEMENT ARTICLE 12: It is understood that the reference to
"infringement of any right covered by this Treaty or the Berne
Convention" includes both exclusive rights and rights of remuneration.

It is further understood that Contracting Parties will not rely on this
Article to devise or implement rights management systems that would have
the effect or imposing formalities which are not permitted under the
Berne Convention or this Treaty, prohibiting the free movement of goods
or impeding the enjoyment of rights under this Treaty

ARTICLE 13

APPLICATION IN TIME

Contracting Parties shall apply the provisions of Article 18 of the Berne
Convention to all protection provided for in this Treaty.

ARTICLE 14

PROVISIONS ON ENFORCEMENT OF RIGHTS

(1) Contracting Parties undertake to adopt, in accordance with their
legal systems, the measures necessary to ensure the application of this
Treaty.

(2) Contracting Parties shall ensure that enforcement procedures are
available under their law so as to permit effective action against any
act of infringement of rights covered by this Treaty, including
expeditious remedies to prevent infringements and remedies which
constitute a deterrent to further infringements.

Kind regards,
Emanuella Giavarra



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