WIPO - new copyright treaties are signed

Newsletters and Bulletins / July 1997 / WIPO

WIPO - New Copyright Treaties

On December 20, 1996, two new WIPO sponsored treaties relating to copyright were signed in Geneva. Both treaties contain provisions on computer-related issues, in particular having regard to matters arising from use of the Internet. Each treaty will come into effect once it has been ratified by thirty of the signatory countries. The first of the new treaties, entitled WIPO Copyright Treaty, amends the Berne Convention in a number of ways. The second, entitled WIPO Performances and Phonograms Treaty, complements the Rome Convention (a convention to which the United States is not a party, although membership of the Rome Convention is not a pre-requisite to membership of the new convention). A further proposed treaty that was expected to be considered in Geneva relating to protection for matter extracted from databases was deferred for later consideration.

The new Copyright Treaty is in conformity with the GATT-TRIPS agreement and contains the major provisions relating to computer issues summarized below.

1) Copyright protection is for the expression of an idea and not for ideas, procedures, methods of operation or mathematical concepts as such.

2) Computer programs are to be protected as literary works.

3) Compilations of data which by reason of their selection or arrangement are intellectual creations are to be protected by copyright but this protection does not in itself extend to the data or material in the database, although this does not prejudice the possibility that such data or material may be entitled to protection in its own right.

4) In addition to a general distribution right applicable to all copyright owners, a specific rental right is provided for computer programs, cinematographic works and phonograms. Certain exceptions exist, however, to this provision and in particular in the computer program area the provision does not apply where the program is not "the essential object of the rental," presumably to avoid the possibility that, for example, car rental without the consent of the owner of the copyright in one of the computerized systems in the car would constitute a copyright infringement.

5) A new communication right is to be created that will permit owners of copyright in literary and artistic works to control the communication of their works to the public "by wire or wireless means". A proposed further right to clarify the extent to which temporary reproduction of a copyrighted work, for example, when browsing on the Internet, was not adopted, largely as a result of the opposition by the communications industry that was fearful that it would be exposed to copyright infringement actions for supply of such material over the Internet. In the end it was agreed to leave matters as they stand under the provisions of the Berne Convention.

6) The members of the convention obligated themselves to provide "effective legal remedies" to prevent circumvention of technological measures used by authors to protect their copyright from misuse and to prevent the knowing removal of electronic rights management information without consent or the knowing distribution of copies of a work from which such information has been deleted or on which it has been altered. Presumably this will apply to unauthorized decoders for decoding scrambled television broadcasts and the like but the wording is much broader than this.

The WIPO Performances and Phonograms Treaty sets out rights for actors, singers, musicians, dancers, etc. and others who perform literary or artistic works or expressions of folklore and for producers of phonograms. Discussions intended to include protection for producers of audiovisual works were not successful. The rights provided in both cases include distribution, rental and making available by wire or wireless means similar to those noted above for computer programs. Additionally provisions to prevent circumvention of protection devices and removal or alteration of rights management information are required.

In order to ratify the treaties two changes will be required in United States law. These relate to the provisions requiring member states to make it unlawful either to circumvent copyright protection devices or to remove or alter copyright management information.

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