Home » Leggi » Wipo Performances And Phonograms Treaty

Wipo Performances And Phonograms Treaty

adopted by the Diplomatic Conference on December 20, 1996

CHAPTER I: GENERAL PROVISIONS
Article 1: Relation to Other Conventions
Article 2: Definitions
Article 3: Beneficiaries of Protection under this Treaty
Article 4: National Treatment

CHAPTER II: RIGHTS OF PERFORMERS
Article 5: Moral Rights of Performers
Article 6: Economic Rights of Performers in their Unfixed Performances
Article 7: Right of Reproduction
Article 8: Right of Distribution
Article 9: Right of Rental
Article 10: Right of Making Available of Fixed Performances

CHAPTER III: RIGHTS OF PRODUCERS OF PHONOGRAMS
Article 11: Right of Reproduction
Article 12: Right of Distribution
Article 13: Right of Rental
Article 14: Right of Making Available of Phonograms

CHAPTER IV: COMMON PROVISIONS
Article 15: Right to Remuneration for Broadcasting and Communication to the Public
Article 16: Limitations and Exceptions
Article 17: Term of Protection
Article 18: Obligations concerning Technological Measures
Article 19: Obligations concerning Rights Management Information
Article 20: Formalities
Article 21: Reservations
Article 22: Application in Time
Article 23: Provisions on Enforcement of Rights

CHAPTER V: ADMINISTRATIVE AND FINAL CLAUSES
Article 24: Assembly
Article 25: International Bureau
Article 26: Eligibility for Becoming Party to the Treaty
Article 27: Rights and Obligations under the Treaty
Article 28: Signature of the Treaty
Article 29: Entry into Force of the Treaty
Article 30: Effective Date of Becoming Party to the Treaty
Article 31: Denunciation of the Treaty
Article 32: Languages of the Treaty
Article 33: Depositary

Preamble
The Contracting Parties,
Desiring to develop and maintain the protection of the rights of performers and producers of phonograms in
a manner as effective and uniform as possible,
Recognizing the need to introduce new international rules in order to provide adequate solutions to the
questions raised by economic, social, cultural and technological developments,
Recognizing the profound impact of the development and convergence of information and communication
technologies on the production and use of performances and phonograms,
Recognizing the need to maintain a balance between the rights of performers and producers of phonograms
and the larger public interest, particularly education, research and access to information,
Have agreed as follows:

CHAPTER I

GENERAL PROVISIONS

Article 1
Relation to Other Conventions
(1) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each
other under the International Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations done in Rome, October 26, 1961 (hereinafter the “Rome Convention”).
(2) Protection granted under this Treaty shall leave intact and shall in no way affect the protection of
copyright in literary and artistic works. Consequently, no provision of this Treaty may be interpreted as
prejudicing such protection (1).
(3) This Treaty shall not have any connection with, nor shall it prejudice any rights and obligat ions under,
any other treaties.

Article 2
Definitions
For the purposes of this Treaty:
(a) “performers” are actors, singers, musicians, dancers, and other persons who act, sing, deliver,
declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;
(b) “phonogram” means the fixation of the sounds of a performance or of other sounds, or of a
representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other
audiovisual work (2);
(c) “fixation” means the embodiment of sounds, or of the representations thereof, from which they can
be perceived, reproduced or communicated through a device;
(d) “producer of a phonogram” means the person, or the legal entity, who or which takes the initiative
and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the
representations of sounds;
(e) “publication” of a fixed performance or a phonogram means the offering of copies of the fixed
performance or the phonogram to the public, with the consent of the rightholder, and provided that copies
are offered to the public in reasonable quantity (3);
(f) “broadcasting” means the transmission by wireless means for public reception of sounds or of
images and sounds or of the representations thereof; such transmission by satellite is also ?broadcasting?;
transmission of encrypted signals is ?broadcasting? where the means for decrypting are provided to the
public by the broadcasting organization or with its consent;
(g) “communication to the public” of a performance or a phonogram means the transmission to the
public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the
representations of sounds fixed in a phonogram. For the purposes of Article 15, “communication to the
public” includes making the sounds or representations of sounds fixed in a phonogram audible to the public.

Article 3
Beneficiaries of Protection under this Treaty
(1) Contracting Parties shall accord the protection provided under this Treaty to the performers and
producers of phonograms who are nationals of other Contracting Parties.
(2) The nationals of other Contracting Parties shall be understood to be those performers or producers of
phonograms who would meet the criteria for eligibility for protection provided under the Rome Convention,
were all the Contracting Parties to this Treaty Contracting States of that Convention. In respect of these
criteria of eligibility, Contracting Parties shall apply the relevant definitions in Article 2 of this Treaty (4).
(3) Any Contracting Party availing itself of the possibilities provided in Article 5(3) of the Rome
Convention or, for the purposes of Article 5 of the same Convention, Article 17 thereof shall make a
notification as foreseen in those provisions to the Director General of the World Intellectual Property
Organization (WIPO) (5).

Article 4
National Treatment
(1) Each Contracting Party shall accord to nationals of other Contracting Parties, as defined in
Article 3(2), the treatment it accords to its own nationals with regard to the exclusive rights specifically
granted in this Treaty, and to the right to equitable remuneration provided for in Article 15 of this Treaty.
(2) The obligation provided for in paragraph (1) does not apply to the extent that another Contracting
Party makes use of the reservations permitted by Article 15(3) of this Treaty.

CHAPTER II

RIGHTS OF PERFORMERS

Article 5
Moral Rights of Performers
(1) Independently of a performer?s economic rights, and even after the transfer of those rights, the
performer shall, as regards his live aural performances or performances fixed in phonograms, have the right
to claim to be identified as the performer of his performances, except where omission is dictated by the
manner of the use of the performance, and to object to any distortion, mutilation or other modification of his
performances that would be prejudicial to his reputation.
(2) The rights granted to a performer in accordance with paragraph (1) shall, after his death, be
maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or
institutions authorized by the legislation of the Contracting Party where protection is claimed. However,
those Contracting Parties whose legislation, at the moment of their ratification of or accession to this Treaty,
does not provide for protection after the death of the performer of all rights set out in the preceding
paragraph may provide that some of these rights will, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted under this Article shall be governed by the
legislation of the Contracting Party where protection is claimed.

Article 6
Economic Rights of Performers in their Unfixed Performances
Performers shall enjoy the exclusive right of authorizing, as regards their performances:
(i) the broadcasting and communication to the public of their unfixed performances except where the
performance is already a broadcast performance; and
(ii) the fixation of their unfixed performances.

Article 7
Right of Reproduction
Performers shall enjoy the exclusive right of authorizing the direct or indirect reproduction of their
performances fixed in phonograms, in any manner or form (6).

Article 8
Right of Distribution
(1) Performers shall enjoy the exclusive right of authorizing the making available to the public of the
original and copies of their performances fixed in phonograms 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 fixed performance with the authorization of the performer (7).

Article 9
Right of Rental
(1) Performers shall enjoy the exclusive right of authorizing the commercial rental to the public of the
original and copies of their performances fixed in phonograms as determined in the national law of
Contracting Parties, even after distribution of them by, or pursuant to, authorization by the performer.
(2) 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 performers for the rental of copies of their
performances fixed in phonograms, may maintain that system provided that the commercial rental of
phonograms is not giving rise to the material impairment of the exclusive right of reproduction of
performers (8).

Article 10
Right of Making Available of Fixed Performances
Performers shall enjoy the exclusive right of authorizing the making available to the public of their
performances fixed in phonograms, by wire or wireless means, in such a way that members of the public
may access them from a place and at a time individually chosen by them.

CHAPTER III

RIGHTS OF PRODUCERS OF PHONOGRAMS

Article 11
Right of Reproduction
Producers of phonograms shall enjoy the exclusive right of authorizing the direct or indirect
reproduction of their phonograms, in any manner or form (9).

Article 12
Right of Distribution
(1) Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the
public of the original and copies of their phonograms 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 phonogram with the authorization of the producer of the
phonogram (10).

Article 13
Right of Rental
(1) Producers of phonograms shall enjoy the exclusive right of authorizing the commercial rental to the
public of the original and copies of their phonograms, even after distribution of them by or pursuant to
authorization by the producer.
(2) 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 producers of phonograms for the rental of
copies of their phonograms, may maintain that system provided that the commercial rental of phonograms is
not giving rise to the material impairment of the exclusive rights of reproduction of producers of
phonograms (11).

Article 14
Right of Making Available of Phonograms
Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the
public of their phonograms, by wire or wireless means, in such a way that members of the public may access
them from a place and at a time individually chosen by them.

CHAPTER IV

COMMON PROVISIONS

Article 15
Right to Remuneration for Broadcasting and Communication to the Public
(1) Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for
the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any
communication to the public.
(2) Contracting Parties may establish in their national legislation that the single equitable remuneration
shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting
Parties may enact national legislation that, in the absence of an agreement between the performer and the
producer of a phonogram, sets the terms according to which performers and producers of phonograms shall
share the single equitable remuneration.
(3) Any Contracting Party may in a notification deposited with the Director General of WIPO, declare
that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their
application in some other way, or that it will not apply these provisions at all.
(4) For the purposes of this Article, phonograms made available to the public by wire or wireless means
in such a way that members of the public may access them from a place and at a time individually chosen by
them shall be considered as if they had been published for commercial purposes (12, 13).

Article 16
Limitations and Exceptions
(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or
exceptions with regard to the protection of performers and producers of phonograms as they provide for, in
their national legislation, in connection with the protection of copyright in literary and artistic works.
(2) Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty
to certain special cases which do not conflict with a normal exploitation of the performance or phonogram
and do not unreasonably prejudice the legitimate interests of the performer or of the producer of the
phonogram (14, 15).

Article 17
Term of Protection
(1) The term of protection to be granted to performers under this Treaty shall last, at least, until the end of
a period of 50 years computed from the end of the year in which the performance was fixed in a phonogram.
(2) The term of protection to be granted to producers of phonograms under this Treaty shall last, at least,
until the end of a period of 50 years computed from the end of the year in which the phonogram was
published, or failing such publication within 50 years from fixation of the phonogram, 50 years from the end
of the year in which the fixation was made.

Article 18
Obligations concerning Technological Measures
Contracting Parties shall provide adequate legal protection and effective legal remedies against the
circumvention of effective technological measures that are used by performers or producers of phonograms
in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their
performances or phonograms, which are not authorized by the performers or the producers of phonograms
concerned or permitted by law.

Article 19
Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly
performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds
to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution, broadcast, communicate or make available to the public,
without authority, performances, copies of fixed performances or phonograms 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
performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of
any right in the performance or phonogram, or information about the terms and conditions of use of the
performance or phonogram, and any numbers or codes that represent such information, when any of these
items of information is attached to a copy of a fixed performance or a phonogram or appears in connection
with the communication or making available of a fixed performance or a phonogram to the public (16).

Article 20
Formalities
The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any
formality.

Article 21
Reservations
Subject to the provisions of Article 15(3), no reservations to this Treaty shall be permitted.

Article 22
Application in Time
(1) Contracting Parties shall apply the provisions of Article 18 of the Berne Convention, mutatis
mutandis, to the rights of performers and producers of phonograms provided for in this Treaty.
(2) Notwithstanding paragraph (1), a Contracting Party may limit the application of Article 5 of this
Treaty to performances which occurred after the entry into force of this Treaty for that Party.

Article 23
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.

CHAPTER V

ADMINISTRATIVE AND FINAL CLAUSES

Article 24
Assembly
(1)
(a) The Contracting Parties shall have an Assembly.
(b) Each Contracting Party shall be represented by one delegate who may be assisted by alternate
delegates, advisors and experts.
(c) The expenses of each delegation shall be borne by the Contracting Party that has appointed the
delegation. The Assembly may ask WIPO to grant financial assistance to facilitate the participation of
delegations of Contracting Parties that are regarded as developing countries in conformity with the
established practice of the General Assembly of the United Nations or that are countries in transition to a
market economy.
(2)
(a) The Assembly shall deal with matters concerning the maintenance and development of this Treaty
and the application and operation of this Treaty.
(b) The Assembly shall perform the function allocated to it under Article 26(2) in respect of the
admission of certain intergovernmental organizations to become party to this Treaty.
(c) The Assembly shall decide the convocation of any diplomatic conference for the revision of this
Treaty and give the necessary instructions to the Director General of WIPO for the preparation of such
diplomatic conference.
(3)
(a) Each Contracting Party that is a State shall have one vote and shall vote only in its own name.
(b) Any Contracting Party that is an intergovernmental organization may participate in the vote, in
place of its Member States, with a number of votes equal to the number of its Member States which are
party to this Treaty. No such intergovernmental organization shall participate in the vote if any one of its
Member States exercises its right to vote and vice versa.
(4) The Assembly shall meet in ordinary session once every two years upon convocation by the Director
General of WIPO.
(5) The Assembly shall establish its own rules of procedure, including the convocation of extraordinary
sessions, the requirements of a quorum and, subject to the provisions of this Treaty, the required majority
for various kinds of decisions.

Article 25
International Bureau
The International Bureau of WIPO shall perform the administrative tasks concerning the Treaty.

Article 26
Eligibility for Becoming Party to the Treaty
(1) Any Member State of WIPO may become party to this Treaty.
(2) The Assembly may decide to admit any intergovernmental organization to become party to this Treaty
which declares that it is competent in respect of, and has its own legislation binding on all its Member States
on, matters covered by this Treaty and that it has been duly authorized, in accordance with its internal
procedures, to become party to this Treaty.
(3) The European Community, having made the declaration referred to in the preceding paragraph in the
Diplomatic Conference that has adopted this Treaty, may become party to this Treaty.

Article 27
Rights and Obligations under the Treaty
Subject to any specific provisions to the contrary in this Treaty, each Contracting Party shall enjoy all
of the rights and assume all of the obligations under this Treaty.

Article 28
Signature of the Treaty
This Treaty shall be open for signature until December 31, 1997, by any Member State of WIPO and
by the European Community.

Article 29
Entry into Force of the Treaty
This Treaty shall enter into force three months after 30 instruments of ratification or accession by
States have been deposited with the Director General of WIPO.

Article 30
Effective Date of Becoming Party to the Treaty
This Treaty shall bind
(i) the 30 States referred to in Article 29, from the date on which this Treaty has entered into force;
(ii) each other State from the expiration of three months from the date on which the State has
deposited its instrument with the Director General of WIPO;
(iii) the European Community, from the expiration of three months after the deposit of its
instrument of ratification or accession if such instrument has been deposited after the entry into force
of this Treaty according to Article 29, or, three months after the entry into force of this Treaty if such
instrument has been deposited before the entry into force of this Treaty;
(iv) any other intergovernmental organization that is admitted to become party to this Treaty, from
the expiration of three months after the deposit of its instrument of accession.

Article 31
Denunciation of the Treaty
This Treaty may be denounced by any Contracting Party by notification addressed to the Director
General of WIPO. Any denunciation shall take effect one year from the date on which the Director General
of WIPO received the notification.

Article 32
Languages of the Treaty
(1) This Treaty is signed in a single original in English, Arabic, Chinese, French, Russian and Spanish
languages, the versions in all these languages being equally authentic.
(2) An official text in any language other than those referred to in paragraph (1) shall be established by
the Director General of WIPO on the request of an interested party, after consultation with all the interested
parties. For the purposes of this paragraph, “interested party” means any Member State of WIPO whose
official language, or one of whose official languages, is involved and the European Community, and any
other intergovernmental organization that may become party to this Treaty, if one of its official languages is
involved.

Article 33
Depositary
The Director General of WIPO is the depositary of this Treaty.

Note
1 Agreed statement concerning Article 1(2): It is understood that Article 1(2) clarifies the relationship between rights in
phonograms under this Treaty and copyright in works embodied in the phonograms. In cases where authorization is needed from
both the author of a work embodied in the phonogram and a performer or producer owning rights in the phonogram, the need for
the authorization of the author does not cease to exist because the authorization of the performer or producer is also required, and
vice versa.
It is further understood that nothing in Article 1(2) precludes a Contracting Party from providing exclusive rights to a performer
or producer of phonograms beyond those required to be provided under this Treaty.
2 Agreed statement concerning Article 2(b): It is understood that the definition of phonogram provided in Article 2(b) does
not suggest that rights in the phonogram are in any way affected through their incorporation into a cinematographic or other
audiovisual work.
3 Agreed statement concerning Articles 2(e), 8, 9, 12, and 13: 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.
4 Agreed statement concerning Article 3(2): For the application of Article 3(2), it is understood that fixation means the
finalization of the master tape (“bande-mère”).
5 Agreed statement concerning Article 3: It is understood that the reference in Articles 5(a) and 16(a)(iv) of the Rome
Convention to “national of another Contracting State” will, when applied to this Treaty, mean, in regard to an intergovernmental
organization that is a Contracting Party to this Treaty, a national of one of the countries that is a member of that organization.
6 Agreed statement concerning Articles 7, 11 and 16: The reproduction right, as set out in Articles 7 and 11, and the
exceptions permitted thereunder through Article 16, fully apply in the digital environment, in particular to the use of performances
and phonograms in digital form. It is understood that the storage of a protected performance or phonogram in digital form in an
electronic medium constitutes a reproduction within the meaning of these Articles.
7 Agreed statement concerning Articles 2(e), 8, 9, 12, and 13: 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.
8 Agreed statement concerning Articles 2(e), 8, 9, 12, and 13: 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.
9 Agreed statement concerning Articles 7, 11 and 16: The reproduction right, as set out in Articles 7 and 11, and the
exceptions permitted thereunder through Article 16, fully apply in the digital environment, in particular to the use of performances
and phonograms in digital form. It is understood that the storage of a protected performance or phonogram in digital form in an
electronic medium constitutes a reproduction within the meaning of these Articles.
10 Agreed statement concerning Articles 2(e), 8, 9, 12, and 13: 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.
11 Agreed statement concerning Articles 2(e), 8, 9, 12, and 13: 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.
12 Agreed statement concerning Article 15: It is understood that Article 15 does not represent a complete resolution of the
level of rights of broadcasting and communication to the public that should be enjoyed by performers and phonogram producers in
the digital age. Delegations were unable to achieve consensus on differing proposals for aspects of exclusivity to be provided in
certain circumstances or for rights to be provided without the possibility of reservations, and have therefore left the issue to future
resolution.
13 Agreed statement concerning Article 15: It is understood that Article 15 does not prevent the granting of the right conferred
by this Article to performers of folklore and producers of phonograms recording folklore where such phonograms have not been
published for commercial gain.
14 Agreed statement concerning Articles 7, 11 and 16: The reproduction right, as set out in Articles 7 and 11, and the
exceptions permitted thereunder through Article 16, fully apply in the digital environment, in particular to the use of performances
and phonograms in digital form. It is understood that the storage of a protected performance or phonogram in digital form in an
electronic medium constitutes a reproduction within the meaning of these Articles.
15 Agreed statement concerning Article 16: The agreed statement concerning Article 10 (on Limitations and Exceptions) of the
WIPO Copyright Treaty is applicable mutatis mutandis also to Article 16 (on Limitations and Exceptions) of the WIPO
Performances and Phonograms Treaty. [The text of the agreed statement concerning Article 10 of the WCT reads as follows: “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.”] 16 Agreed statement concerning Article 19: The agreed statement concerning Article 12 (on Obligations concerning Rights
Management Information) of the WIPO Copyright Treaty is applicable mutatis mutandis also to Article 19 (on Obligations
concerning Rights Management Information) of the WIPO Performances and Phonograms Treaty. [The text of the agreed statement
concerning Article 12 of the WCT reads as follows: “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 of imposing formalities which are not permitted under the Berne Convention or this Treaty, prohibiting
the free movement of goods or impending the enjoyment of rights under this Treaty.”]

About Giovanni d'Ammassa

Avvocato con studio in Milano dal 1997, coltiva sin dall'Università lo studio e l’insegnamento del diritto d’autore. Fonda Diritttodautore.it nel 1999. Appassionato chitarrista e runner.