Chapter 9 WIPO Copyright Treaty, and Performances and Phonograms Treaty

Chapter 9 WIPO Copyright Treaty, and Performances and Phonograms Treaty

Introduction
WIPO Copyright Treaty
Performances and Phonograms Treaty
Entry into force
Implementation
Costs
Consultation
Conclusion and recommendations

Introduction

9.1

Article 17.1.4 of the Australia-United States Free Trade Agreement (AUSFTA) requires that Australia accede to the World Intellectual Property Organisation (WIPO) Copyright Treaty (Geneva, 20 December 1996) (WCT) and WIPO Performances and Phonograms Treaty (Geneva, 20 December 1996) (WPPT). Accession is to have occurred prior to entry into force of the AUSFTA on 1 January 2005.1

9.2

The WPPT and WCT were adopted at the WIPO Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions in Geneva in December 1996. The treaties supplement the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention).2

9.3 The WCT entered into force generally on 6 March 2002, after being ratified or acceded to by 30 countries, in accordance with its provisions.3 The WPPT entered into force generally on 20 May 2002, after being ratified or acceded to by 30 countries.4
9.4

Australia actively participated in the making of these treaties and has worked towards accession since the conclusion of negotiations in 1996. Australia was one of the first countries to implement the main obligations of the treaties, with its enactment of the Copyright Amendment (Digital Agenda) Act 2000.5

9.5

The treaties expand the rights of copyright owners in works, films and sound recordings and for performers in the online environment. They also standardise the criteria for exceptions to copyright as applicable in the digital environment. 6 The WCT and WPPT mark ‘an important advance in improving international copyright standards to meet the challenges posed by digital technology’.7

9.6

According to Ms Helen Daniels of the Attorney-General’s Department,

Australian accession to the two treaties will help to secure better protection abroad for Australian works, films, sound recordings and performers. This is a clear benefit to the important cultural sector of our community. The treaty standards with which Australian law has to comply were painstakingly negotiated with active Australian participation and enjoy wide and growing acceptance by countries around the world. Accession will also strengthen Australia’s support for the work and role of WIPO in promoting international cooperation in the protection and use of intellectual property. Australia continues to be an active participant in WIPO consideration of the adequacy of international copyright standards and the negotiation of possible new standards.8

 

WIPO Copyright Treaty

Background

9.7

The National Interest Analysis (NIA) states that the WCT will benefit Australian copyright owners and performers by

providing adequate economic benefits to Australian copyright owners by securing improved protection for their works and productions in the markets of our major trading partners and a growing number of other overseas markets.9

9.8

Ms Daniels explained to the Committee that,

The WIPO Copyright Treaty adds to protection under the Berne convention in the following ways. It provides for expanded rights for owners of copyright in works and films; protection of new categories of works; and specific obligations concerning the protection of technological protection measures and concerning rights management information. In addition, contracting parties must comply with substantive provisions of the Berne convention. This last requirement was included because non Berne convention members are eligible to accede to the WIPO Copyright Treaty without also acceding to the Berne convention.10

9.9

The Committee notes that, given that Australian law is already compliant with the majority of obligations under the WCT, it is beneficial to ratify the treaty so that Australian performers and copyright owners receive a similar level of protection in other member countries as they do in Australia.11

 

Key benefits of the WCT

9.10

The NIA outlines numerous benefits expected to occur as a result of Australian ratification of the WCT

 

Key obligations under the WCT

9.11

The NIA also notes obligations to be incurred by Australia upon accession to the WCT

 

Performances and Phonograms Treaty

Background

9.12

The NIA states that the WPPT will benefit Australian copyright owners and performers by

securing improved protection for their productions and performances in the markets of our major trading partners and other overseas markets.30

9.13

The Committee notes that, given that Australian law is already compliant with the majority of obligations under the WPPT, it is beneficial to ratify the treaty so that Australian performers and copyright owners receive a similar level of protection in other member countries as they do in Australia.31

9.14

The NIA explains that the WPPT

provides for the protection of rights of performers, other than rights in relation to audiovisual fixations of their performances, and the rights of producers of phonograms (ie, sound recordings). The WPPT provides for expanded rights for both producers and performers (notably rights of reproduction, distribution, rental and making available online to the public). It also provides for specific rights for performers, including moral rights and rights authorising the broadcasting and communication of unfixed (ie, unrecorded) performances. Specific obligations are also placed on Contracting Parties concerning protection of technological measures and rights management information, which parallels provisions in the WCT.32

9.15

The operation and development of the WPPT will be governed by the Assembly of Contracting Parties, which will meet every two years.33

 

Key benefits of the WPPT

9.16

The NIA outlines numerous benefits expected to occur as a result of Australian ratification of the WPPT

 

Key obligations under the WPPT

9.17

The NIA also notes obligations to be incurred by Australia upon accession to the WPPT

 
Reservations
9.18 Generally, reservations to the WPPT are not permitted.55 However, Parties may take advantage of those limitations permitted in the Rome Convention, regarding the extent to which protection will be extended to the nationals of other Parties, based on the criteria of nationality, fixation and publication.56
9.19

Due to the interaction between Articles 15(1) and 15(3) of the WPPT and Article 17.1.6 of the AUSFTA, Australia may take advantage of a reservation to the WPPT made by the United States, regarding an exception to national treatment with respect to the secondary use of phonograms in analogue communications and free-to-air radio broadcasting.57

 

Entry into force

9.20

The WPPT entered into force on 20 May 2002, and will bind Australia from the end of three months after Australia’s deposit of its instrument of accession.58

 

Implementation

9.21

The main obligations of the WPPT and WCT were implemented by the Copyright Amendment (Digital Agenda) Act 2000. Further obligations are met by the US Free Trade Agreement Implementation Act 2004.59

9.22

Implementation of the WPPT will require amendment to the Copyright Act to extend performers’ rights over sound recordings of their performances. 60 Further, performers must be granted moral rights performers as required by the WPPT. These moral rights are provided for in the US Free Trade Agreement Implementation Act 2004.61

9.23

Consistent with implementation of the WCT, US Free Trade Agreement Implementation Act 2004 amended the Copyright Act to extend the duration of the term of photographic copyright to life of the author plus 70 years.62

9.24

The Copyright (International Protection) Regulations 1969 will also be amended to extend protection granted under the Copyright Act to nationals of WPPT and WCT member countries.63

9.25

Other requirements of the WPPT and WCT regarding copyright in the digital environment were incorporated into Australian law by the Copyright Amendment (Digital Agenda) Act 2000.64

9.26

The Committee notes that advice was sought from the Office of International Law to ensure that all aspects of Australian copyright law, notwithstanding the above mentioned amendments, are in compliance with the WPPT and the WCT.65

 

Costs

9.27

There will be no costs incurred as a result of Australia’s accession to the WPPT and WCT apart from those associated with participating in the WPPT’s Assembly of Contracting Parties and the WCT’s Assembly of Members States. As Australian law is compliant with the majority of the obligations of both treaties, the enforcement of these rights will not incur additional costs.66

 

Consultation

9.28

The Committee notes that these treaties have been the subject of formal and informal consultations with copyright stakeholders over a period of years from 1996 to 2004.67

9.29

In 1997 the Attorney General’s Department sought comment on those aspects of the WPPT and WCT to be incorporated into the Copyright Amendment (Digital Agenda) Act 2000, legislation relating to performers’ rights and the proposed extension of the copyright term over photographs.68

9.30 Meetings have been held with representatives from the record, film, television and radio industries, including performers, producers and broadcasters. The NIA states that ‘most stakeholders do not object to amending the law to give new rights to performers and thus for Australia to be in a position to accede to the WPPT treaty’.69
9.31

Recently, consultations were carried out with 64 copyright stakeholders.70 These stakeholders were contacted in May 2004 to seek their views on possible accession to the WCT and WPPT. As of June 2004, four submissions were received, from the Australian Broadcasting Corporation (ABC), Commercial Radio Australia (CRA), the Australian Library and Information Association (ALIA) and the Australian War Memorial (which did not comment).71 ALIA’s concern related to the speed of the AUSFTA implementation process.72

9.32

In regard to the ABC, the NIA states that

The ABC has raised concerns about being adversely affected by new laws pertaining to performers rights due to the breadth of material that it administers.73

9.33

Mr Christopher Creswell of the Attorney-General’s Department advised the Committee that the ABC’s concerns were due to the fact that

through the diversity of activities, they are both a producer and a broadcaster of sound recordings and also employ performers so they have to consider these various capacities in which they operate in considering the impact of the proposed new performers’ rights.74

Mr Creswell reassured the Committee that

after these extensive consultations in which we have carefully responded to their comments of substance, they are reasonably satisfied that they can manage the impact of the new rights.75

9.34

The concerns of CRA are also outlined in the NIA

The CRA has recommended that national treatment in relation to remuneration for broadcasting rights be provided only on a reciprocal basis. It should be noted that the AUSFTA contains an exception in Article 17.1.6 allowing a Party to the agreement to limit the rights of performers and producers of the other Party with respect to the secondary use of phonograms by means of analogue communications and free over-the-air radio broadcasting.76

9.35

Mr Creswell assured the Committee that the CRA’s concerns are addressed in the AUSFTA exception and national treatment provisions, and that Australian radio stations will not have to pay remuneration for broadcasting US recordings when this does not occur in the US.77

9.36

In regard to consultation with State and Territory Governments, the NIA states that

The States and Territories were notified of Australia’s proposed accession to the WPPT in the Standing Committee on Treaties (SCOT) through the SCOT Schedule of Treaties. To date there has been no request for further information. Given that copyright falls within the legislative power of the Commonwealth, Australia’s proposed accession to the WPPT will have a negligible impact on the legislative and administrative functions of the States and Territories.78

 

Conclusion and recommendations

9.37

The Committee notes that, given that Australian law is already compliant with the majority of obligations under the WPPT and WCT, it is beneficial to accede to the treaty so that Australian performers and copyright owners receive a similar level of protection in other member countries as they do in Australia. Accession will also be beneficial in fulfilling Australia’s obligations under the AUSFTA and the SAFTA.

 

Recommendation 9

The Committee supports the WIPO Copyright Treaty, adopted by the Diplomatic Conference at Geneva on 20 December 1996 and recommends that binding treaty action be taken.

 

Recommendation 10

The Committee supports the WIPO Performances and Phonograms Treaty, adopted by the Diplomatic Conference at Geneva on 20 December 1996 and recommends that binding treaty action be taken.

 
 
 
  Dr Andrew Southcott MP
Committee Chair


Footnotes

1 World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty (WPPT) National Interest Analysis (NIA), para. 2; WIPO Copyright Treaty (WCT) NIA, para. 2. Back
2 WPPT NIA, para. 6; WCT NIA, para. 6. Back
3 WCT NIA, para. 3. Back
4 WPPT NIA, para. 3. Back
5 Ms Helen Daniels, Transcript of Evidence, 9 August 2004, p. 14. Back
6 Ms Helen Daniels, Transcript of Evidence, 9 August 2004, p. 14. Back
7 Ms Helen Daniels, Transcript of Evidence, 9 August 2004, p. 14. Back
8 Ms Helen Daniels, Transcript of Evidence, 9 August 2004, p. 16. Back
9 WCT NIA, para. 6. Back
10 Ms Helen Daniels, Transcript of Evidence, 9 August 2004, p. 15. Back
11 WCT NIA, para. 6. Back
12 WCT NIA, para. 7. Back
13 WCT NIA, para. 11. Back
14 WCT NIA, para. 8. Back
15 WCT NIA, para. 22. Back
16 WCT NIA, para. 9. Back
17 WCT NIA, para. 10. Back
18 WCT NIA, para. 12. Back
19 WCT NIA, para. 13; WCT Article 6. Back
20 WCT NIA, para. 14; WCT Article 7. Back
21 WCT NIA, para. 15; WCT Article 8. Back
22 WCT NIA, para. 16; WCT Article 9. Back
23 WCT NIA, para. 17; WCT Article 4. Back
24 WCT NIA, para. 17; WCT Article 5. Back
25 WCT NIA, para. 18; WCT Articles 11 and 12. Back
26 WCT NIA, para. 19; WCT Article 10. Back
27 Ms Helen Daniels, Transcript of Evidence, 9 August 2004, p. 15. Back
28 WCT NIA para. 20; WCT Article 14(2). Back
29 WCT NIA, para. 21; WCT Article 3; Berne Convention Articles 2 - 6. Back
30 WPPT NIA, para. 7. Back
31 WPPT NIA, para. 7. Back
32 WPPT NIA, para. 14. Back
33 WPPT NIA, para. 27; WPPT Article 24. Back
34 WPPT NIA, paras. 8 and 12. Back
35 WPPT NIA, para. 9. Back
36 WPPT NIA, para. 10. Back
37 WPPT NIA, para. 11. Back
38 WPPT NIA, para. 13. Back
39 WPPT NIA, para. 14. Back
40 WPPT NIA, para. 15; WPPT Article 4(1). Back
41 WPPT NIA, para. 13. Back
42 WPPT NIA, para. 16; WPPT Article 5(1). Back
43 WPPT NIA, para. 17; WPPT Article 6. Back
44 WPPT NIA, para. 18; WPPT Articles 7 and 11. Back
45 WPPT NIA, para. 19; WPPT Articles 8 and 12. Back
46 WPPT NIA, para. 20; WPPT Articles 9 and 13. Back
47 WPPT NIA, para. 21; WPPT Articles 10 and 14. Back
48 WPPT NIA, para. 22; WPPT Article 15. Back
49 WPPT NIA, para. 23; WPPT Article 17. Back
50 WPPT NIA, para. 23; AUSFTA, Article 17.4.4. Back
51 WPPT NIA, para. 23. Back
52 WPPT NIA, para. 24; WPPT Articles 18 and 19. Back
53 WPPT NIA, para. 25, WPPT Article 16. Back
54 WPPT NIA, para. 26; WPPT Article 23. Back
55 WPPT NIA, para. 38; WPPT Article 21. Back
56 WPPT NIA, para. 38; WPPT Article 3(3). Back
57 WPPT NIA, para. 37; Ms Helen Daniels, Transcript of Evidence, 9 August 2004, p. 15. Back
58 WPPT NIA, para. 3. Back
59 Ms Helen Daniels, Transcript of Evidence, 9 August 2004, p. 15. Back
60 WPPT NIA, para. 28. Back
61 Ms Helen Daniels, Transcript of Evidence, 9 August 2004, p. 16. Back
62 WCT NIA, para. 22. Back
63 WPPT NIA, para. 29; WCT NIA , para. 23. Back
64 WPPT NIA, para. 30; WCT NIA , para. 24. Back
65 Ms Helen Daniels, Transcript of Evidence, 9 August 2004, p. 16. Back
66 WPPT NIA, para. 31; WCT NIA , para. 25. Back
67 WPPT NIA, Annex 1; WCT NIA, Annex 1. Back
68 WPPT NIA, Annex 1; WCT NIA, Annex 1. Back
69 WPPT NIA, Annex 1; WCT NIA, Annex 1. Back
70 WPPT NIA, para. 33; WCT NIA, para. 27. Back
71 Ms Helen Daniels , Transcript of Evidence, 9 August 2004 , pp. 16-17. Back
72 WPPT NIA, Annex 1; WCT NIA, Annex 1. Back
73 WPPT NIA, Annex 1; WCT NIA, Annex 1. Back
74 Mr Christopher Creswell, Transcript of Evidence, 9 August 2004, p. 17. Back
75 Mr Christopher Creswell, Transcript of Evidence, 9 August 2004, p. 17. Back
76 WPPT NIA, Annex 1; WCR NIA, Annex . Back
77 Mr Christopher Creswell , Transcript of Evidence, 9 August 2004 , p. 17. Back
78 WPPT NIA, para. 32; WCT NIA, para. 26. Back

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