IMRO

Documents Archive

The New Wipo Treaties Evolution of the International Copyright System

INTRODUCTION
On December 20th, 1996, a Diplomatic Conference organised by the World Intellectual Property Organization (WIPO) ended in Geneva. The concluding plenary session lasted only 20 minutes but it was at this session, after three weeks of intensive and often tough negotiations, that delegates of 128 governments, in the presence of representatives of about 100 international organizations, adopted the results of five years' preparatory work by WIPO Expert Committees.

The main purpose of the Diplomatic Conference was to update the international regime of copyright established by the 1886 Berne Convention for the Protection of Literary and Artistic works. To date, some 120 states have joined the Berne Convention. Since its conclusion, the Berne Convention has been revised every twenty years but more than quarter of a century has now elapsed since the 1967-1971 twin revision conferences. In this period, information technology has made staggering progress. The capabilities of current digital technology mean that we are on the verge of the all-time deepest and broadest convergence of the media and content industries. The need to update the international norms of copyright was therefore generally recognised.

In addition to the updating the copyright regime, the need to update the international protection of performers and producers of phonograms was also clear. The basic convention on these so-called neighbouring rights, the Rome Convention, was done in 1960, thirty-six years ago. Joined so far by some 50 states, the Rome Convention has never been revised. It is a complex piece of international law and it seems that it does not have the potential to become a truly international basis for the protection of these groups of rightholders.

Intellectual property rights, especially copyright, are significant because of their multi-faceted nature. Some of their functions are direct and some of them are indirect. Copyright stimulates creativity by ensuring a reward for the author's individual and intellectual contributions. A stable legal framework promotes availability of the creative work; the author and the publisher may put the work into circulation having the proper means to combat illegal exploitation. Copyright also safeguards investments in production, stimulates economic activities in general, and thus contributes to the creation of jobs throughout the whole chain of production and trade. In addition to all these economic implications, copyright guarantees the author protection of his honour and reputation.

The development of digital infrastructures has made the marketplace for literature, music, images, computer programs, databases etc. a genuinely global one. Protection of works of the mind must be a part of this new digital environment. Harmonisation of national laws is vital in order to avoid unacceptable market distortions. One example of a global phenomenon which has established a new environment is the Internet. Global phenomena can only be dealt with by a global approach and, when necessary, by global rules. This is why international treaties are an absolute necessity.

Globally, the extent of economic activity in the construction of the digital environment is huge. At the moment the construction of infrastructures represents the major sector of development. One research institute has estimated that the value of the core economy directly linked to the Internet amounted in 1996 to 2.2 billion USD in the U.S. alone. The same institute forecasts that by the year 2000, this figure will have risen to 45.5 billion USD.

The financial basis of the production and distribution of information services, audiovisual services, computer programs, music, entertainment etc. is ever more dependent on the existence of a clear and stable underlying legal framework. Authors, producers, publishers and other rightholders are unlikely to make their productions available in the networked environment unless they are accorded sufficient legal security.

The purpose of international treaties in the field of intellectual property is to enable the market to perform its proper function. It has been said that each article in a treaty in the copyright field has a value measured in billions of dollars on the world market. But purely commercial values do not provide any reasonable basis for a balanced regulatory system. It must be possible to provide for limitations to rights at national level. Such limitations are introduced in order to serve crucial sectors in society - science, education, culture - and other important common interests.

THE HISTORY OF INTERNATIONAL HARMONIZATION
Copyright is an a priori territorial right. States give protection according to their legislation to persons belonging to the field of application of their laws as regards the relevant acts performed in their territory. By international agreements, states are bound also to give protection to copyright holders coming from other countries.

Eight years ago, in 1989, a WIPO Committee of Experts was set up to prepare the updating of the Berne regime by the addition of a Protocol to the Berne Convention. From 1992 onwards two Committees of Experts continued the work, one for the Berne Protocol on copyright and another for a New Instrument for the protection of performers and producers of phonograms.

The TRIPS Agreement concluded in 1994 at the Uruguay Round of GATT negotiations remedied some of the defects in the system of conventions. It addressed, however, many of the inadequacies only at a very basic level and touched on only a limited number of the problems resulting from technological progress. Even though it greatly reinforced the law on international intellectual property, it left unanswered many questions which have been waiting to be settled. Some of the questions which are topical today were not even identified during the Uruguay Round.

It was seen that a revision of the body of the Berne Convention would be either impossible or extremely difficult because of the requirement for unanimity. This led to the idea of a new instrument, nicknamed "the Protocol", which would be attached to the Berne Convention. In addition, another "New Instrument" was prepared to protect performers and producers of phonograms.

Conclusion of the GATT Uruguay Round resulted in an intensification of the preparatory work. The new pace was primarily set by the recognition of the profound impact of digital technology throughout the world. In 1993, the Clinton Administration gave the National Information Infrastructure high political priority. On the basis of the Bangemann Report, European heads of state accepted an Action Plan at their Corfu summit in June 1994 to stimulate activity in the market. In Geneva, as part of the preparations for the updating of the international copyright regime, "a digital agenda" was established to run alongside the "traditional issues".

The Road to the Diplomatic Conference 1989 - 1996
In 1989, the Assembly and the Conference of Representatives of the Berne Union adopted the program of WIPO making a provision for convening a Committee of Experts to examine questions concerning a possible protocol to the Berne Convention for the Protection of Literary and Artistic Works. The objective of convening the Committee of Experts was to examine whether the preparation of a protocol to the Berne Convention should commence. According to the WIPO program for the 1990-91 biennium "[t]he protocol would be mainly destined to clarify the existing, or establish new, international norms where, under the present text of the Berne Convention, doubts may exist as to the extent to which that Convention applies".

The Committee of Experts was convened in two sessions, the first in November 1991 and the second in February 1992. The sessions were started on the basis of working documents covering a broad range of topic areas including the subject matter of copyright, certain particular rights, the applicability of minima, and the obligation of granting national treatment. Among the questions concerning subject matter was the desirability of covering the rights of producers of sound recordings in the protocol.

The Assembly and the Conference of Representatives of the Berne Union determined in 1992 that the work of the Committee of Experts would be most effectively advanced by the formation of two Committees of Experts, one for the preparation of a possible protocol to the Berne Convention and the other for the preparation of a possible new instrument on the protection of the rights of performers and producers of phonograms.

The Committee of Experts on a Possible Protocol to the Berne Convention then held five further sessions between June 1993 and May 1996. The Committee of Experts on a Possible Instrument for the Protection of the Rights of the Performers and Producers of Phonograms held six sessions in the period June-July 1993 to May 1996. The last three sessions of the two Committees were convened on the same dates, and parts of the sessions were held jointly.

The work of the Committees of Experts was based on memoranda prepared by the International Bureau of WIPO until December 1994. Following the recommendation of the Committees of Experts, the Director General of WIPO invited Government members of the Committees and the European Commission to submit proposals for discussion at the September 1995 and February 1996 sessions.

As a result of these invitations WIPO received a great number of proposals from governments on matters concerning the draft treaties. The issue of a sui generis protection of databases was launched at this stage. In February 1996 the European Union presented a proposal which was based on a new Community Directive related to such protection. In May 1996, the U.S. presented a similar but not identical proposal.

The Committees of Experts recommended at the February 1996 sessions that a Diplomatic Conference for the conclusion of appropriate treaties be held in December 1996. In May 1996 the Preparatory Committee of the Diplomatic Conference, the General Assembly of WIPO and the Assembly of the Berne Union met in Geneva. It was decided that the Diplomatic Conference would be convened from December 2 to 20, 1996.

The Chairman of the Committees of Experts was entrusted at the February 1996 sessions with the task of preparing the draft texts ("the basic proposals") for the Diplomatic Conference. The WIPO International Bureau published the texts so prepared at the beginning of September 1996. The Director General of WIPO prepared the draft of the final clauses of the treaties.

Before the event there was no decision on the number of treaties to be proposed for adoption by the Diplomatic Conference in December 1996. Three draft treaties were tabled at last December's Diplomatic Conference in Geneva - one concerning copyright, one concerning the protection of performers and producers of phonograms, and one concerning sui generis rights for databases.

On the conference floor, two spectacular issues dominated the scene: arm-wrestling over the audiovisual question - the protection of the rights of actors, dancers and musicians in movies and in television productions - and the battle about the right of reproduction. Negotiations over the audiovisual question came to nought, the issue was deferred. Further discussion of the draft treaty on the protection of databases was also deferred. After three weeks of very hard work, two treaties were concluded - the WIPO Copyright Treaty (the "WCT") and the WIPO Performances and Phonograms Treaty (the "WPPT").

In addition to the two Treaties a long series of Agreed Statements on the interpretation of different provisions of the Treaties was adopted by the Conference. This is a new feature in the history of the WIPO Conferences. All the Agreed Statements, except one on the right of reproduction, were adopted unanimously.

CONTENTS OF THE TREATIES

WIPO COPYRIGHT TREATY
There are 25 Articles in the WCT out of which 14 contain substantive provisions. The Treaty complements the Berne Convention. There is, however, no formal link between the new Treaty and the Convention: states may choose to join one or the other or both.

Article 1 contains general provisions on the relationship of the new Treaty to the Berne Convention. The new Treaty is a special agreement within the meaning of Article 20 of the Berne Convention. It may not derogate from existing obligations that contracting parties have to each other under the Berne Convention. In fact, the Berne Convention has been included in the new Treaty: contracting parties shall, according to the provision of Article 1(4), comply with Articles 1 to 21 of the Berne Convention.

The proposed article on the notion and place of publication as well as the article on the abolition of certain non-voluntary licences were deleted from the draft Treaty during the Conference. A completely new Article 2 concerning the scope of copyright protection was added. Modelled after Article 9.2 of the TRIPS Agreement the new Article 2 states that copyright protection does not extend to ideas, procedures or methods of operation.

The provisions concerning international application and application in time were borrowed from Articles 3 to 6 and Article 18 of the Berne Convention. These provisions are applicable by reference without reproducing the language of the Articles concerned.

Computer Programs
Concerning Article 4 on computer programs it was discussed whether the phrase "Computer programs are protected as literary works" should remain as it was proposed or whether it should be formulated as "shall be protected ". The TRIPS Agreement limits protection to computer programs which are only in source code or object code form. In the draft Treaty it was proposed that the protection should apply to the expression of a computer program in any form. After negotiations the are form was adopted and a phrase concerning the scope of protection ("whatever may be the mode or form of their expression"), borrowed from Article 2 of the Berne Convention, was inserted into the relevant provision. In addition, an Agreed Statement was adopted; this states that the provision adopted is consistent with the Berne Convention and on a par with the TRIPS Agreement.

Databases
Some minor changes were made to the Article concerning the protection of databases. Instead of the word "collection" used in the Berne Convention, the word "compilation" was adopted. This underlines the unique and specific nature of databases as objects for protection when compared to traditional categories of works. A similar agreed statement to that concerning computer programs was also adopted for databases.

Right of Communication
Perhaps the most important Article of the new Treaty is Article 8 concerning the right of communication to the public. The provisions of the Berne Convention do not provide full certainty when they are applied to the interactive on-demand transmission of protected works over information networks. In international discussions, it was suggested that the "solution" should be based on rights already well established such as the right of reproduction, the right of public performance or the right of communication to the public, or alternatively on a completely new "right of transmission".

The actual solution adopted in the WCT was based on the concept of the right of communication. "Communication" means transmission other than broadcasting to a public not present in the place where the communication originates. Good examples of communication are cable television and transmissions over networks.

This right has now been updated and adapted to operation in the digital environment. Regulated in the Berne Convention in only a fragmented manner, the right of communication as there defined covers only certain categories of works such as musical and dramatic works, recitations of literary works and cinematographic works. Article 8 of the new Copyright Treaty extends the right of communication to all categories of works including literary works in written form (including computer programs), photographic works and works of pictorial art.

The WCT also makes it clear that the right of communication is without doubt applicable to interactive on-demand deliveries over digital networks. The actual wording of the provision in Article 8 is that the right of communication includes "the making available to the public of their works, by wire or wireless means, in such a way that members of the public may access these works from a place and at a time individually chosen by them". This provision will now function as the basic rule for digital department stores, digital bookstores, and digital record and video shops. Providing access to protected works is covered by authors' rights. The provision links national legislations which use different concepts to describe the same transaction. Contracting parties can fulfil the requirements of the treaty by granting authors a right of communication, "a right of transmission", or "a right of distribution by transmission" or some other right.

The concept of this provision gave rise to some dispute before the Conference. Telecommunications companies were concerned they might be held liable for activities which merely constituted the act of providing a conduit for transmissions of copyrighted material. In his notes for the Diplomatic Conference on the proposal, the Chairman of the Expert Committees explained: "The relevant act is the making available of the work by providing access to it. What counts is the initial act of making the work available, not the mere provision of server space, communication connections, or facilities for the carriage and routing of signals". Legal security for on-line service providers and telecommunications companies was assured by adopting an agreed statement along the same lines. The precise wording is "The mere provision of physical facilities for enabling or making a communication does not itself amount to communication within the meaning of this treaty or the Berne Convention". It seemed that all parties were satisfied with this outcome.

It is worth mentioning that the general rules taken into the new treaties allowing exceptions to rights do not preclude reasonable solutions in contracting parties' national legislation. The conditions already established in the Berne Convention concerning exceptions to the right of reproduction were generalised in Article 10 of the WCT to govern any limitations to the rights. Also the right of communication may be subject to limitations or exceptions. Any limitations imposed must be in accordance with the provisions of the said Article. A reference to the so-called "minor reservations" that traditionally are accepted should also be made here.

A reference should also be made to the important Agreed Statement on reservations adopted unanimously by the Conference. This statement declares that in their national legislation contracting parties may carry forward and extend appropriately into the digital environment limitations which are acceptable under the Berne Convention, and even device new exceptions.

Duration of the Protection of Photographic Works
Presently, the minimum term of protection for photographic works according to Article 7(4) of the Berne Convention is 25 years counted from the year of the making of the photograph. According to Article 9 of the WCT contracting parties undertake not to apply the said provision and thus "normalize" the minimum duration of the protection of photographic works which will now therefore be regulated by the general terms of the Berne Convention.

WIPO PERFORMANCES AND PHONOGRAMS TREATY
In the WIPO Performances and Phonograms Treaty there are 33 Articles; 23 of these contain substantive provisions. The WPPT is intended to be an independent and comprehensive Treaty covering all the relevant aspects of the protection of performers and producers of phonograms. The WPPT is not linked to the Rome Convention (International Convention for the Protection of Performers and Producers of Phonograms and Broadcasting Organizations done in Rome, October 26, 1961). Article 1 of the WPPT contains safeguard clauses concerning existing obligations under the Rome Convention and the protection of copyright in literary and artistic works. The solution found in Article 1.3 of the TRIPS Agreement on the international application of TRIPS, which is itself based on the provisions of the Rome Convention, has been repeated in Article 3(2) of the WPPT. The provision in Article 22 of the WPPT on application in time makes Article 18 of the Berne Convention applicable by reference.

The method of expression used in the WPPT follows the language of the Berne Convention and the WCT. In the WPPT performers are granted genuine exclusive rights instead of the Rome Convention-style "possibility of preventing".

Audiovisual Question
The Basic Proposal prepared for the Conference included alternative possible solutions for a very important aspect in the scope of the protection of performers. Before the Conference there was no international understanding of whether protection should extend to audiovisual fixations of performers' performances or whether protection should be confined to aural fixations and phonograms only. Tough negotiations proved that it was not possible to extend the protection of performers to cover audiovisual productions. The U.S. and the EU were the most active parties in negotiations on this matter. The U.S. made a very interesting proposal according to which it was ready to accord statutory rights in line with the WPPT to performers in foreign audiovisual productions. This was subject to (1) the acceptance of an irrebuttable presumption on the transfer of rights from the performer to the producer, (2) full national treatment, and (3) on freedom to implement rights through any means, including the application of collective bargaining agreements. The proposal was studied sympathetically by many delegations. In the end, the international federations of actors and musicians could not endorse it, some key delegations turned against the proposal, and negotiations on this and other proposals on the audiovisual question came to nought.

Definitions

In the same way as the Rome Convention, the WPPT contains an important Article on definitions. Such Articles are not found in the Berne Convention or in the WCT. The definition of 'performers' is broader than the corresponding definition in the Rome Convention: it includes performers of expressions of folklore. The definitions of 'phonogram' and 'producer of a phonogram' have been modernized so that, in addition to the fixation of sounds, they also cover fixation of a representation of sounds. In many cases the whole or part of a phonogram is produced without fixing "real" audible sounds but by writing the digital signs representing sounds directly into the memory of a computer. The definition of 'broadcasting' now explicitly covers transmission by satellite and transmission of encrypted signals. The definition of 'communication to the public' has been tailored to fit the relevant operative provisions of the Treaty.

Moral Rights of Performers
In Article 5 of the WPPT, performers are granted moral rights in their live aural performances and performances which are fixed in phonograms. These provisions represent an important breakthrough in principle, even if their scope is narrow and the language used differs somewhat from that of Article 6bis of the Berne Convention.

Unfixed Performances
According to Article 6 of the WPPT, performers enjoy exclusive rights in respect to their live performances. It is worth noting that this Article has a degree of audiovisual coverage: television broadcasts of performances are included.

Right of Reproduction
The Articles in the WPPT concerning the right of reproduction of performers and producers of phonograms are a mixture of the provisions in Article 9(1) of the Berne Convention and Article 10 of the Rome Convention. The right of reproduction covers direct and indirect reproduction, in any manner or form.

Right of Making Available to the Public
In Articles 10 and 14 performers and producers of phonograms are accorded a new exclusive right concerning the making available to the public of their performances fixed in phonograms, or of their phonograms, by interactive on-demand delivery methods. This right corresponds to the interactive part of the right of communication granted to authors in the WCT. The founding of a digital record shop operating over networks is subject to authorization by both performers and producers.

Right to Remuneration for Broadcasting and Communication to the Public
The right to remuneration which corresponds to Article 12 of the Rome Convention has been modernized in Article 15 of the WPPT. It now applies to both direct and indirect use of phonograms published for commercial purposes for broadcasting, or for any communication to the public. This right must be granted to both performers and producers. It was, however, necessary to introduce the possibility of making a reservation in respect to this right. The reservations may be as far-reaching as the reservations permitted in Article 16 of the Rome Convention: a contracting party may declare that it does not apply the provisions of Article 15 of the WPPT at all.

"CLUSTER ISSUES" - PROVISIONS IN BOTH TREATIES

Right of Distribution
Before the conclusion of the new treaties there were no general provisions in the international conventions on the right of distribution in the field of copyright and neighbouring rights. In both new treaties the right of distribution has been introduced. Concerning the concept of exhaustion there were two alternative solutions presented in the Basic Proposals. One of these was based on the national or regional exhaustion of the right: according to this it would only be permissible to distribute further copies that have been sold in the territory of a contracting party. This solution was strongly supported by the U.S. and many other industrialized nations. The alternative solution was based on the so-called international exhaustion of the right of distribution. According to this, copies sold anywhere in the world with the authorization of the rightholder could be lawfully distributed further. International exhaustion was supported by the Asian group of developing countries, China, some Latin American and some industrialized countries. International exhaustion was the solution chosen by the Conference. Contracting parties are free to determine the conditions, if any, under which the exhaustion applies. Recognition of the right of distribution is an important step in the light of the international distribution of copies of phonograms, videograms, books, copies of computer programs etc. Distribution of copies that have been sold without authorization is therefore illegal and may be prevented.

Right of Rental
In the WCT an exclusive right of rental has been accorded to computer programs, cinematographic works and works embodied in phonograms. In the case of cinematographic works there is no obligation to grant this right if widespread copying does not materially impair the right of reproduction. In the WPPT the exclusive right of rental has been fully recognized with the exception of contracting parties who, on April 15, 1994, had and continue to have in force a system of equitable remuneration. In negotiations at the Diplomatic Conference it was made clear that the right of rental has been included in the new treaties at the TRIPS level.

Limitations and Exceptions
The WCT extends the application of the three-step test of Article 9(2) of the Berne Convention to the rights in both the WCT and the Berne Convention. With regard to the rights in the WPPT the same kinds of limitations or exceptions can be made to performers' and producers' rights as the contracting parties provide for authors' rights in their national legislation. This corresponds to the provisions of Article 15.1 of the Rome Convention. The three-step test also applies.

Concerning limitations and exceptions, an important statement was unanimously adopted. This declares that in their national legislation, contracting parties may carry forward and extend into the digital environment, as appropriate, limitations which are acceptable under the Berne Convention. The treaties also permit contracting parties to devise new exceptions which are appropriate in the digital network environment. This statement applies mutatis mutandis to the WPPT.

Technological Measures
Before the Conference, the legal treatment of technological protection measures had become a matter of international dispute. The provisions on this matter in the Basic Proposals were modelled after the prototype provision in UK law and the corresponding provision in the U.S. NII Copyright Bill of 1995. The telecommunications and hardware industry criticized the proposal heavily while the rightholders' organizations defended it. At the Conference it became evident that the proposal was too detailed: there was a risk that some general-purpose devices, such as PCs, would have fallen within the field of application of the draft proposal. Intensive negotiation between interested parties led to a simplified draft provision which was officially proposed by the African group of countries. This proposal was adopted, virtually unchanged. Emphasis of the provision was moved from sanctioning the manufacture or importation of the protection-defeating devices to remedies against the circumvention of effective technological measures used by rightholders.

Rights Management Information
Fresh provisions on obligations concerning rights management information was taken into both Treaties. An element requiring connection to an infringement was added to these provisions by the Conference: the legal remedies provided for shall be applicable against any person who performs the acts concerned, knowing that it will induce, enable, facilitate or conceal an infringement.

Enforcement of Rights

The provisions on enforcement of rights were one of the most delicate political issues. In the Basic Proposals two alternative solutions had been presented. Both were based on Articles 41 to 61 of the TRIPS Agreement. The first alternative made these provisions applicable by making them an integral part of the Treaties, inserting them as an annex. The second alternative made the same provisions applicable mutatis mutandis by reference. The Jamaican delegate's proposal was decisive. She proposed that the general clause in Article 41(1) of the TRIPS Agreement should be taken into the new Treaties. To add to the beauty of this solution, the clause of Article 36(1) of the Berne Convention was also inserted into the new Treaties.

ADMINISTRATIVE CLAUSES

Assembly
Assemblies were established by the two treaties to deal with matters concerning the maintenance and development of the treaties, their application and operation. The Assemblies have also the task of deciding on the convocation of any diplomatic conference for the revision of the treaties.

Parties to the Treaties
All member states of WIPO may become parties to the new Treaties.

One of the questions subjected to the most intensive negotiation at the Conference was the conditions on which intergovernmental organizations may become parties to the treaties. Three conditions were taken into the treaties: the organization in question has to declare that (1) it is competent in respect of, (2) it has its own legislation binding on all its member states on matters covered by the treaties, and (3) that it has been duly authorized to become party to the treaties. The European Community may, according to these conditions, become party to the treaties.

Intergovernmental organizations may participate in votes in the Assembly, taking the place of their member states with a number of votes that is equal to the number of their member states which are party to the treaties. The much-discussed condition of the presence of member states at Assembly meetings was not taken into the treaties.

Entry into Force

The clauses on the entry into force of the treaties were debated before and during the Conference. The three regional groups of developing countries claimed that instead of the customary five or seven states, a higher number of states should deposit their instruments of ratification or accession before the entry into force the treaties. The figure of 30 was adopted. One effect of this higher number is that some time may pass before the entry into force of the treaties. On the other hand, when that time comes the treaties will immediately cover a significant geographical area of the world.

THE BATTLE OVER THE RIGHT OF REPRODUCTION
The right of reproduction is one of the core elements of copyright. The basic provisions on this right are found in Article 9 of the Berne Convention. According to this provision, the exclusive right of authorising the reproduction of their works in any manner or form is vested in the authors of literary and artistic works. The scope of this right is therefore already very broad, but there remains some room for interpretation. One example of this is in respect to the lifespan of a copy established by an act of reproduction.

In the computer and network environment many economically relevant uses of protected works are based on temporary copies in the memory devices of computers. Such uses should not be outside of the scope of copyright rules. It was therefore proposed in Article 7 of the Draft Copyright Treaty that the scope of the right of reproduction would be harmonised. Paragraph 1 of the proposed Article 7 established that the scope of the reproduction right in Article 9 of the Berne Convention includes both permanent and temporary reproduction. Paragraph 2 of the proposed Article 7 allowed contracting parties to legislate for provisions limiting the reproduction right in the case of transient or incidental reproductions. These exceptions were to cover reproductions made in the working memory of a computer while browsing material from the Internet, and auxiliary, technologically-indispensable reproductions which are part of the transmission process across the Internet. Exceptions under the proposed Paragraph 2 were intended to allow the exclusion from the field of operation of copyright of acts of reproduction that have no economic relevance. As is usual in these matters, the proposed Paragraph 2 allowed contracting parties to introduce the exceptions in their national legislation.

In general, representatives of the contents industries and rightholders were comfortable with Article 7 as proposed, but the Internet industry resisted the proposal strongly. The hardware industry joined the opposition. The coalitions and associations lobbying on behalf of the telecommunications industry and library institutions found common interests. Fears held by the former group centred around the risk of excessive liabilities, while the latter evinced their genuine concern that the public's access to information would be in jeopardy. The critics demanded either mandatory exceptions for certain types of incidental reproduction, or deletion of the whole of Article 7 as proposed.

Lobbying was very intense. The African group of countries and many Asian countries took the view that both the browsing and telecommunication exceptions to the right of reproduction should be mandatory. Negotiations became very complex with the EU and U.S. delegations working intensively to keep the proposed Article 7 in the treaty with the rule about exceptions being optional.

In the end, time ran out. The conflict over the rule about specific exceptions sank the whole of Article 7. The U.S. accepted its deletion on the condition that a statement on the right of reproduction was adopted. After long and difficult deliberations and roll-call voting an agreed statement was adopted. This important statement declares that the reproduction right, as set out in the Berne Convention, "fully applies in the digital environment". The statement also confirms that the storage of a protected work in digital form in an electronic medium constitutes a reproduction.

The result of the battle over Article 7 was a disappointment to some, but satisfactory to most parties. The detailed functioning of the reproduction right was subjected to a very high degree of analysis. The right is already very broad ("in any manner or form") and the agreed statement further clarifies its application. For probably most of the countries of the world the proposals in Article 7 concerning the reproduction right implied nothing new. Legislation in numerous countries, e.g. in all member states of the EU, already covers temporary reproduction. Deletion of the proposed article from the treaty means that the question of reproduction in the context of browsing and transmitting over networks is still a matter to be dealt with by each contracting party.

DATABASE TREATY DEFERRED
No precipitate action concerning the sui generis protection of databases took place at the Conference. The Draft Treaty on databases, which was the third in a series of three draft treaties prepared for the Diplomatic Conference, was in actual fact not discussed at all. Because of the time constraints priority was placed on the two first treaties. The database treaty talks will be reactivated in 1997.

The draft treaty on the protection of databases prepared for the Diplomatic Conference defined a database as a "collection of independent works, data or other materials arranged in a systematic or methodical way and capable of being individually accessed by electronic or other means". As proposed, the Draft Treaty would extend sui generis protection to any database if the collection, verification or other steps in its production are the subject of substantial investment. Such investment might consist of the use of human or financial resources or both.

The maker of a database would enjoy an exclusive right to authorize, or to prohibit, the extraction or utilization of the contents of his database. Protection provided by the proposed treaty would cover only the extraction or utilization of all or a substantial part of a database. A part is substantial if it is of qualitative or quantitative significance to the value of the database. Protection would therefore in no case extend to any insubstantial parts of a database. Is "substantiality" too vague a term to determine the borderline between the protected and unprotected? A decision on this can be made by considering current practice in different fields of legislation. For instance the system of copyright is largely based on flexible norms which in practice delimit protection satisfactorily.

According to the Draft Treaty a database has to be a "collection" of "independent" works, data, or other materials. Consequently, that which is not collected by the maker of the database, and which does not consist of items which were independent at the time they were collected by the maker of the database remains outside the scope of protection. A data file which consists of a notation representing a natural phenomenon in which the elements or qualities are a priori in a given order, e.g. sequence data for the human genome or data in a digital recording would not be protected as such. On the other hand, a compilation of several such data files would fall within the definition of a database in the Draft Treaty and could therefore be protected if other requirements are met.

The Draft Treaty would allow contracting parties to leave databases made by government entities outside the scope of protection. The term of protection would be a fixed number of years: the United States has proposed 25 years and the EU 15 years counted from the date of making of the database, or the date on which the database was made available to the public. It has been pointed out that "dynamic", i.e. continuously-updated databases would appear to enjoy perpetual protection. This would not in fact be so. Each version made or published would enjoy its own protection and become public domain according to the general rule.

Internationally, the production and distribution of databases has become an extensive commercial activity requiring significant levels of investment. On the other hand, identical copies of existing databases can be made and distributed further at practically no cost at all. Once established, protection would function as an incentive for investments in the production of, and trade in, databases. It would also provide protection against outright piracy and the misappropriation of the labour and effort of others. The clear target here is commercial activity. Rights granted under the proposed Draft Database treaty would be in addition to any copyright protection already available, and would not affect other legal rights or obligations. In the United States, the kind of protection proposed would, to a great extent, restore the "sweat of the brow" principle rejected by the Supreme Court in 1991 in a case in which a regional telephone company wanted to make use of the white pages in a telephone book which had been generated by a local telephone company.

At the Geneva Conference, there was insufficient time to begin negotiations about this new form of database protection. Consultations with regional groups from the developing countries showed only limited readiness to discuss the matter. Scientific and library communities, governmental and other institutions handling large volumes of data had adopted a critical view, some of them urging that no action at all should be taken.

The fact that the matter was left open has given both governments and interested circles time to further consider this new form of protection. The Diplomatic Conference in Geneva adopted a recommendation that work on the subject be continued.

This does not mean that a vacuum in this area currently exists. Provided that they meet the requirements for protection, databases are protected by copyright and the new WIPO Copyright Treaty actually contains a provision that removes any uncertainty about this, since Article 5 confirms that copyright extends to databases. Protection does not extend to the actual data or material contained in the database. A database is protected as such, if, by reason of the selection or arrangement of its contents, it constitutes an intellectual creation. Although the actual data is not protected, a database may also consist of works that are themselves, as such, protected.

Before the Diplomatic Conference in Geneva, one persistent element of "misinformation" was that there would be no place under the proposed treaty for appropriate exceptions to rights in recognition of the particular needs of scientific research or education to use and freely exchange information. In fact, the provisions on exceptions in the Draft Database Treaty were modelled on the Article concerning the right of reproduction in the Berne Convention. This clearly allows exceptions which correspond e.g. the 'fair use' exemption in United States legislation or more specific limitations of rights in other legislations. By way of illustration it can be mentioned that in the Nordic Countries legal provisions on the sui generis protection of collections of data have existed for 35 years. The protection provided has been limited by making all the relevant exceptions to traditional copyright applicable.

Another topic much discussed before the Conference was the assertion that protection would break the principle of full and open exchange of scientific and other data between scientific institutions. In reality, no form of protection precludes the compilers of databases from exchanging their data. The protection proposed in the Draft Database Treaty provides for the possibility of making a database available against payment of a fee. Another fact of life is that irrespective of legal protection for compilations of data, there is a tendency (at least in Europe) to start charging for the services produced by public bodies such as national statistical organizations or meteorological institutes. This is a development fostered both by technological developments and the harsh laws of economics.

CONCLUDING REMARKS
The two new treaties finalised in Geneva are a great deal more than just another two international agreements. The fact that they were concluded proves that it is possible to come to terms on new and complex issues in WIPO, a community comprising 160 member nations. The new treaties are not only clear evidence of a new dynamism. They also hold a promise for the future: further agreements on new rules should be possible.

At the Diplomatic Conference, both the developing countries and the industrialised countries discovered that they do have a degree of common interest. Many developing countries in Africa, Asia and Latin America favour high levels of protection, something previously considered to be more in the interests of the developed countries. The political climate in this field has undergone radical change. With only a single exception (the agreed statement on the right of reproduction) decisions at the conference, including the adoption of the new treaties, were made unanimously.

The new treaties are the first step in updating the international regime of copyright and neighbouring right to meet the challenges of the digital development. They are a concrete beginning of a new evolution of this branch of law. Further steps will be necessary in the future. New questions will arise and new solutions have to be found.

The two new treaties represent the level of protection at which global harmonisation is possible today. This harmonisation will not take place automatically. WIPO member states must join the treaties and amend their national legislation. Only time will show the pace at which these events take place.

On Thursday and Friday this week the Assembly of the Berne Convention and the WIPO General Assembly have discussed and possibly decided about the methods and timetable for handling the matters left unresolved by the Diplomatic Conference - the audiovisual question and the sui generis database right.

Two other processes on related subjects will begin this year. In April, WIPO will organise two important meetings which will explore the possible need for new international rules: the first of these, a Unesco-WIPO World Forum on the protection of folklore, will take place in Phuket, Thailand; the second, a WIPO World Symposium on broadcasting, new communication technologies and intellectual property will be organised in Manila, capital of the Philippines.

© (1997) Mr Jukka Liedes Special Government Adviser, Ministry of Education, Science and Culture, Finland