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unauthorized reproduction of their phonograms, for performers to prevent certain reproductions and fixations of their performances and it provides limited rights for broadcasting organizations. The Rome Convention requires that these rights endure for a period of 20 years. It also provides for protection against certain "secondary uses" of phonograms, such as broadcasting, but it contains the ability for members to reserve, or decline to implement, this right. The United States is not a signatory to the Rome Convention.


The Geneva Phonograms Convention provides for the protection of phonograms against unauthorized reproduction and distribution for a minimum term of 20 years. It does not require signatories to provide a performance right in sound recordings. The United States belongs to the Geneva Phonograms Convention.

WIPO has convened a Committee of Experts on a Possible Protocol to the Berne Convention to account for developments since the 1971 revision of the Convention, and a Committee of Experts on a Possible New Instrument for the Protection of Performers and Producers of Phonograms to consider how to provide improved rights for performers and producers of phonograms.


In addition to the traditional WIPO forum, other international fora now have a significant role in intellectual property policy formulation. The TRIPs Agreement, , concluded during the recent Uruguay Round Negotiations, is administered by the World Trade Organization (WTO). The TRIPs Agreement sets significant standards for the protection of copyright and related rights. Perhaps most importantly, it contains provisions to ensure that parties to the TRIPs Agreement fully implement obligations under it.

After defining the relationship between the TRIPs Agreement and the Berne Convention, the TRIPs Agreement reiterates the basic principle of copyright


protection -- that protection extends only to expression and not to ideas, methods of operation, or mathematical concepts.

Article 10 of the TRIPs Agreement confirms that all types of computer programs are "literary works" under the Berne Convention, and requires each WTO country to protect them as such. It also requires copyright protection for compilations of data or other material that are original by reason of their selection or arrangement.

Article 11 of the TRIPs Agreement requires member countries to provide exclusive rights for authors or their successors in title to authorize or to prohibit commercial rental to the public of originals or copies of their copyrighted works for at least computer programs and cinematographic works. The obligation as to rental rights for cinematographic works need not be implemented unless rental has led to widespread copying that is having a material effect on the author's exclusive right of reproduction.

Article 12 of the TRIPs Agreement provides minimum standards for the term of protection for copyrighted works. The term of protection for most works is the life of the author plus 50 years, but whenever the term of protection is not linked to the life of a person, it must be a minimum of fifty years, except for works of applied art or photographs.

Article 9(2) of the Berne Convention bars imposition of limitations on, or exceptions to, the reproduction right except when such limits or exceptions do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. Article 13 of the TRIPs Agreement widens the scope of this provision to all exclusive rights in copyright and related



This fundamental principle is set forth in Section 102(b) of the U.S. Copyright Act. See discussion supra pp. 32-35.


rights, thus narrowly circumscribing the limitations and exceptions that WTO member countries may impose.

Article 14 of the TRIPs Agreement goes beyond the obligations of the Rome Convention and the Geneva Phonograms Convention and requires member countries to provide sound recording producers a 50-year term of protection and the rights to authorize or prohibit the direct or indirect reproduction and commercial rental of their sound recordings. However, a WTO member country that on April 15, 1994, had a system of payment of equitable remuneration to compensate for rental of recordings is permitted to keep that system.

The Agreement requires WTO countries to make it possible for performers to prevent unauthorized sound recording or reproduction of their live performances. Broadcasting organizations are to be accorded similar rights, although member countries have the option of providing protection consistent with the Rome Convention or providing owners of copyright in works broadcast the right to prevent the same acts. The Agreement also makes Article 18 of the Berne Convention regarding copyright protection of existing works applicable to sound recordings.




Countries with common-law copyright systems such as the United States, and countries with authors' rights systems such as those in Europe, have in some cases defined the rights of certain categories of right holders differently. For instance, European performers, both in audiovisual works and in sound recordings, enjoy certain statutory rights that U.S. performers do not. In the United States,


This approach is consistent with Section 107 of the U.S. Copyright Act (relating to fair use of copyrighted works).


Only Japan and Switzerland qualify under this exception.

these performers rights are guaranteed under contractual or collective bargaining agreements between the audiovisual producers and the performers' unions. Broadcasters have been concerned that harmonization of protection along European lines might have implications for the establishment of performance rights in sound recordings. A consequence of this divergence is that U.S. performers and producers have been denied the ability to share in remuneration for the use of their products and performances in some countries.


The principle of national treatment is the cornerstone of the great international intellectual property treaties Berne and Paris. It also has been the keystone of international trade treaties, such as the General Agreement on Tariffs and Trade and the recently established WTO. It is of enormous significance to our copyright industries. As a general matter, the principle of national treatment means that under a nation's laws, a foreigner enjoys no lesser rights and benefits than a citizen of that nation receives, subject to the specific terms of the relevant international conventions. In copyright terms, it means, for example, that a German work for which copyright enforcement is sought in the United States would be treated under U.S. law exactly as if it were a U.S. work.



Some argue, however, that intellectual property rights should be granted only on the basis of reciprocity. The concept of "material reciprocity" means that the United States should grant a right to a foreigner only if his or her country grants U.S. citizens the same right. Under this scenario, the work of a German citizen would only be able to obtain protection under the U.S. law to the extent that German law provided the same, or at least equivalent, protection to works of a U.S. citizen.


Article 5(1) and 5(2) of the Berne Convention establish the principle of national treatment for works protected by copyright.*39 Under Article 5(1), there is an obligation to

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(1) Authors shall enjoy, in respect of works for which they are
protected under this Convention, in countries of the Union other
than the country of origin, the rights which their respective laws
do now or may hereafter grant to their nationals, as well as the
rights specially granted by this Convention.
(2) The enjoyment and the exercise of these rights shall not be
subject to any formality; such enjoyment and such exercise shall
be independent of the existence of protection in the country of
origin of the work. Consequently, apart from the provisions of
this Convention, the extent of protection, as well as the means of
redress afforded to the author to protect his rights, shall be
governed exclusively by the laws of the country where protection
is claimed.
(3) Protection in the country of origin is governed by domestic
law. However, when the author is not a national of the country of
origin of the work for which he is protected under this
Convention, he shall enjoy in that country the same rights as
national authors.
(4) The country of origin shall be considered to be:


(a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection;

(b) in the case of works published simultaneously in a country outside the Union and in a country of the Union, the

latter country;

(c) in the case of unpublished works or of works first published in a country outside the Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national, provided that:

(i) when these are cinematographic works the maker of which has his headquarters or his habitual residence in a country

а of the Union, the country of origin shall be that country, and

(ii) when these are works of architecture erected in a country of the Union or other artistic works incorporated in a

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