The WIPO performances and phonograms treaty: Will the U.S. whistle a new tune?

Journal of the Copyright Society of the U.S.A.

Volumn 44, Issue 3, 1997, Pages 157-196

  Martin, Rebecca F ^a  

^a NONE

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EID: 0038975647     PISSN: 08863520     EISSN: None     Source Type: Journal    
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References (185)

1. The performance right is "[o]ne of the greatest sources of revenue in the music industry." Woods v. Bourne Co., 60 F.3d 978, 983 (2d Cir. 1995) (citing SIDNEY SCHEMEL AND M. WILLIAM KRASILOVSKY, THIS BUSINESS OF MUSIC 196 (1990)).
2. As of 1993, performance royalties were paid out in 66 countries to either producers, performers or both. Some nations' royalty payments reached into the millions. For example, Germany paid out 80.8 million ECU, France paid 28.3 million ECU, Netherlands paid 11.8 million ECU, Spain paid 19.7 million ECU, and the United Kingdom paid 47.7 million ECU. David Laing, The Importance of Music in the European Union, http:// www.europmusic.com/EMO/eumusic/perfmech.html.
3. See infra notes 11, 61-71, 105-107, 117-118 and accompanying text.
4. See infra note 48.
5. This form of reciprocity has been described as "material reciprocity." Country A, while generally protecting the works of Country B's authors, will extend a particular right to Country B's authors only if Country B extends that same right to Country A's authors. The other reciprocity genus is "formal reciprocity." Country A protects Country B's authors only if Country B protects Country A's authors. But once such a threshold entitlement is established, divergences in rights granted between the laws of the two countries are not taken into consideration. The United States follows formal reciprocity in the area of copyright. WILLIAM F. PATRY, 2 COPYRIGHT LAW AND PRACTICE 1236 n.4 (1994) [hereinafter COPYRIGHT LAW AND PRACTICE].
6. The skewed payment of international royalties as a result of the U.S.'s deficiencies has not been lost on members of congress. As Representative Moorhead aptly stated during a House hearing on a bill which did not pass, Journal, Copyright Society of the U.S.A. but which attempted to provide performance rights for sound recording copyright owners: "More countries have come to recognize performers' rights in sound recordings, but these same countries refuse to permit our performers to share in the millions of dollars collected, even though a good part of that money is collected in their good name and because of their performance. The reason given for this anomaly is because the United States has refused to recognize a performance rights [sic] in sound recordings." Performers' and Performance Rights in Sound Recordings: Oversight Hearing Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 103d Cong., 1st Sess. 2-3 (1993).
7. See COPYRIGHT LAW AND PRACTICE, supra note 5, at 877; see also Rebecca F. Martin, Note, The Digital Performance Right in Sound Recordings Act of 1995: Can it Protect U.S. Sound Recording Copyright Owners In A Global Market?, 14 CARDOZO ARTS & ENT. L.J. 733, 736-41 (1996).
8. See COPYRIGHT LAW AND PRACTICE, supra note 5, at 877; see also Rebecca F. Martin, Note, The Digital Performance Right in Sound Recordings Act of 1995: Can it Protect U.S. Sound Recording Copyright Owners In A Global Market?, 14 CARDOZO ARTS & ENT. L.J. 733, 736-41 (1996).
9. "National treatment" is a requirement that Country A provide the same level of protection to the authors, performers or producers of Country B as Country A extends to its own authors, performers or producers.
10. Marakesh Agreement Establishing the World Trade Organization, April 15, 1994, Annex 1C, Agreements on Trade-related Aspects of Intellectual Property Rights, The Results of the Uruguay Round, art. 14, 33 I.L.M. 81 (1994).
11. See generally WILLIAM F. PATRY, COPYRIGHT AND THE GATT, AN INTERPRETATION AND LEGISLATIVE HISTORY OF THE URUGUAY ROUND AGREEMENTS (1995 Supp. to COPYRIGHT LAW AND PRACTICE, supra note 5).
12. Pub. L. No. 104-39, Stat. 336 (1995) [hereinafter the Act]. The Act became generally effective on February 1, 1996.
13. As stated in the Senate Report on the Digital Performance Rights in Sound Recordings Act of 1995: The Committee is well aware of ongoing discussions and attempts at greater international harmonization of copyright and neighboring rights at the World Intellectual Property Organization (WIPO), in discussion within the G-7, and other forums. This legislation reflects a careful balancing of interest, reflecting the statutory and regulatory requirements imposed on U.S. broadcasters, recording interests, composers, and publishers, and the recognition of the potential impact of new technologies on the recording industry. S. REP. NO. 128, 104th Cong, 1st Sess. 10 (1995).
14. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as last revised, at Paris July 24, 1971, 828 U.N.T.S. 221 [hereinafter the Berne Convention]. The protocol, as adopted, is called the WIPO Copyright Treaty, see infra note 34.
15. As adopted, this convention is known as the "WIPO Performances and Phonograms Treaty." See CRNR/DC/95 ( Dec. 20, 1996) [hereinafter the "Performances and Phonograms Treaty"].
16. 126 states and the European Commission [hereinafter the E.C.] were credentialed. The E.C. represents the common interests of the European Union. It drafts proposals and acts as the European Union's executive body. The ministers of the European Union Member States work in tandem with the E.C. and make all the major legislative decisions in the Council of the European Union after consulting with the elected European Parliament. Imprimatur Project, definition of the European Commission, http://www. imprimatur.alcs.co.uk/html/eurocomm.htm.
17. International Union for the Protection of Literary and Artistic Works, Report Adopted by the Assembly, WIPO Doc. B/A/XIII/2 (Sept. 29, 1992). WIPO initially convened a committee of experts to draft a "model law for the protection of the intellectual property rights of producers of sound recordings." This effort failed because the experts felt that a model law for the protection of sound recordings should not be drafted without considering the rights of performers. As a result, the Berne Union decided to create a Committee of Experts to study a "possible new instrument on the protection of performing artist and phonogram producers." The model law concept was dropped, and the new instrument evolved into the WIPO Performances and Phonograms Treaty. REINBOTHE & VON LEWINSKI, THE EC DIRECTIVE ON RENTAL AND LENDING RIGHTS AND ON PIRACY 207 (1993).
18. International Union for the Protection of Literary and Artistic Works, Report Adopted by the Assembly, WIPO Doc. B/A/XIII/2 (Sept. 29, 1992). WIPO initially convened a committee of experts to draft a "model law for the protection of the intellectual property rights of producers of sound recordings." This effort failed because the experts felt that a model law for the protection of sound recordings should not be drafted without considering the rights of performers. As a result, the Berne Union decided to create a Committee of Experts to study a "possible new instrument on the protection of performing artist and phonogram producers." The model law concept was dropped, and the new instrument evolved into the WIPO Performances and Phonograms Treaty. REINBOTHE & VON LEWINSKI, THE EC DIRECTIVE ON RENTAL AND LENDING RIGHTS AND ON PIRACY 207 (1993).
19. See Jean-François Verstrynge, The European Commission's Direction on Copyright and Neighboring Rights: Toward the Regime of the Twenty-First Century, 17 COLUM.-VLA J.L. & ARTS 187 (1993).
20. International Convention for the Protection of Performers, Producers of Phonograms and Broadcast Organizations of October 26, 1961 [hereinafter the Rome Convention]. The convention is jointly administered by WIPO, UNESCO and the International Labor Office ("ILO"). Some authorities opine that this fact made it more cumbersome to revise the convention, and was partially responsible for the thirty year lapse between the Rome Convention and the introduction of the performances and phonograms protocol. Another reason relates to the substantive nature of the Rome Convention. Since all the rights holders involved have somewhat divergent interests, it is difficult to obtain a new consensus on amendments. REINBOTHE & VON LEWINSKI, supra note 16, at 207.
21. Rome Convention, supra note 18, arts. 5 (producers of Phonograms), 6(broadcasting organizations), and 7 (performers).
22. See infra notes 86-88 and accompanying text.
23. Rome Convention extends protection only to performances by "actors, singers, musicians, dancers and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works." Rome Convention, supra note 18, art.3(a).
24. Performances and Phonograms Treaty defines "performers" as : "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." Performances and Phonograms Treaty, supra note 14, art. 2(a).
25. Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, MTN/FA II-AIC (1994) [hereinafter TRIPs].
26. North American Free Trade Agreement, Oct. 7, 1992, ch.17, 32 I.L.M. 296, 670 [hereinafter "NAFTA"].
27. The relevant NAFTA provision is: Each Party shall provide to the producer of a sound recording the right to authorize or prohibit: . . . (d) the commercial rental of the original or a copy of the sound recording, except where expressly otherwise provided in a contract between the producer of the sound recording and the authors of the works fixed therein. Each Party shall provide that putting the original or a copy of a sound recording on the market with the right holder's consent shall not exhaust the rental right. Id. art. 706(1)(d). The relevant TRIPs provisions are: In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works. A Member shall be excepted from this obligation in respect of cinematographic works unless such rental has lead to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title. In respect of computer programs, this obligation does not apply to rentals where the program itself is not the essential object of the rental. TRIPs, supra note 23, art. 11, and The provisions of Article 11 in respect of computer programs shall apply mutatis mutandis to producers of phonograms and any other right holder in phonograms as determined in domestic law. If, on the date of the Ministerial Meeting concluding the Uruguay Round of Multilateral Trade Negotiations, a Member has in force a system of equitable remuneration of right holders in respect of the rental of phonograms, it may maintain such system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders. Id. art. 14(4).
28. The Performances and Phonograms Treaty states in relevant part: (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 rights of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of producers of phonograms. Performances and Phonograms Treaty, supra note 14, art. 13. The second paragraph tracks the language of the TRIPs article 14(4). Like in TRIPs, this paragraph allows Japan, the only country with merely a right of equitable remuneration for producers of phonograms, the ability to adhere to the treaty. The U.S. grants a rental right to sound recordings in 17 U.S.C. § 109(c).
29. The preamble states no less than twice in a matter of four lines that the treaty is intended to address the issues posed by modern (digital) technology: ". . . 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, . . ." Performances and Phonograms Treaty, supra note 14, Preamble ¶ ¶ 2 and 3.
30. Id. arts. 7 and 11.
31. Id. arts. 8 and 12.
32. Id. art. 15.
33. Id. art. 18.
34. Id. art. 19.
35. See S. REP. NO. 128, 104th Cong, 1st Sess. 10 (1995): "An important rationale for enactment of this legislation is to address the potential impact on the prerecorded music industry of digital subscription and interactive services." Another catalyst to the creation of a digital performance right were the talks being held in preparation of the Performance and Phonograms treaty. See supra note 12.
36. A protocol is a proposed amendment to the Berne Convention, which requires less than unanimous consent of all Berne Convention member states. The Copyright Treaty, which was concluded during the same session, was originally proposed as a protocol as well. In fact, far less than the 126 credentialed states, a scant 30, are required in order to give the treaties effect. The effective provisions are the same under both treaties; they will enter into force three months after 30 States deposit instruments of ratification or accession with the Director General of WIPO. Performers and Phonograms Treaty, supra note 14, art. 29; Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, WIPO Copyright Treaty, WIPO Doc. CRNR/DC/94, art. 20 (Dec. 23, 1996) [hereinafter the WIPO Copyright Treaty].
37. Performers and Phonograms Treaty states : "This Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties." Performers and Phonograms Treaty, supra note 14, art. 1(3). This language was added during the last two days of the Diplomatic Conference. It was absent from the December 18th draft version of the treaty and appeared in the December 20th draft.
38. It could be argued that the savings clause creates an order of preference; the latest treaty to be given the least amount of deference. This argument, however, undermines the prerogative for creating new treaties. It is also contrary to the standard of Interpretation of Treaties under the Vienna Convention which states in relevant part: "[w]hen a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, and earlier or later treaty, the provisions of that other treaty prevail. Vienna Convention on the Law of Treaties, UN Doc. A/Conf 39/28, U.K.T.S. 58 (1980), 8 I.L.M. 679.
39. The rights granted under the Performances and Phonograms Treaty would automatically yield to the rights granted under any present or future treaty in countries such as Egypt, which provide that treaties, once adopted, are self-executing.
40. Like the Performances and Phonograms Treaty, the U.S. Digital Performance Right Act states repetitively that no rights granted under the act should prejudice authors' rights or any other rights or remedies in the U.S.C. or elsewhere. See 17 U.S.C. § 114(d)(4) "Rights Not Otherwise Limited." It is difficult to imagine what purpose this language serves other than to pacify performance rights organizations which were exceedingly concerned about author's royalties being reduced as a result of the Act. See Performers' and Performance Rights in Sound Recordings: Hearing Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 103d Cong., 1st Sess. 66-68 (1993) ("[w]e urge you to: . . . avoid measures which would compromise existing rights and sources of income for music copyright owners and beneficiaries." And "[w]e urge you, in the strongest terms, to guard against approaches that can establish a hierarchy of interests by giving record companies exclusive rights where song-writers and their publisher partners receive only a limited right of remuneration.") (Statement of Edward P. Murphy, President and Chief Executive Officer, National Music Publishers' Association, Inc.). See also Performance Rights in Sound Recordings: Hearing on S.227 Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess. 2-7 (1995) (statement of Marybeth Peters, Register of Copyrights).
41. Like the Performances and Phonograms Treaty, the U.S. Digital Performance Right Act states repetitively that no rights granted under the act should prejudice authors' rights or any other rights or remedies in the U.S.C. or elsewhere. See 17 U.S.C. § 114(d)(4) "Rights Not Otherwise Limited." It is difficult to imagine what purpose this language serves other than to pacify performance rights organizations which were exceedingly concerned about author's royalties being reduced as a result of the Act. See Performers' and Performance Rights in Sound Recordings: Hearing Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 103d Cong., 1st Sess. 66-68 (1993) ("[w]e urge you to: . . . avoid measures which would compromise existing rights and sources of income for music copyright owners and beneficiaries." And "[w]e urge you, in the strongest terms, to guard against approaches that can establish a hierarchy of interests by giving record companies exclusive rights where song-writers and their publisher partners receive only a limited right of remuneration.") (Statement of Edward P. Murphy, President and Chief Executive Officer, National Music Publishers' Association, Inc.). See also Performance Rights in Sound Recordings: Hearing on S.227 Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess. 2-7 (1995) (statement of Marybeth Peters, Register of Copyrights).
42. Performances and Phonograms Treaty, supra note 14, art. 3(1).
43. Unlike the Rome Convention, broadcasters are not granted rights under the Performances and Phonograms Treaty.
44. Id. art.2. See also Rome Convention, supra note 18, art. 4 (Performances Protected), and art. 5 (Phonograms Protected).
45. For the definition of performers, see supra note 22.
46. "Producer of a phonogram" is defined as: "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." Performances and Phonograms Treaty, supra note 14, art. 2(d).
47. Id. art. 3(2).
48. The Rome Convention states in pertinent part: By means of a notification deposited with the Secretary General of the United Nations, any Contracting State may declare theat it will not apply the criterion of publication or, alternatively, the criterion of fixation. Such notification may be deposited at the time of ratification, acceptance or accession, or at any timer thereafter; in the last case, it shall become effective six months after it has been deposited. The Rome Convention, supra note 18, art. 5(3),
49. Id. art. 3(3).
50. In theory, a high standard for minimum rights will raise the uniform level of international copyright protection. For a discussion of national treatment, see generally, S.M. STEWART, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS 38-42 (2d ed. 1989).
51. Berne Convention, supra note 13, art. 3.
52. The Rome Convention's minimum rights requirements are: for performers the rights of performance, and the right to prevent fixation and reproduction (art. 7); for producers the right of reproduction (art. 10), and for broadcasters the rights of rebroadcast, fixation, reproduction and performance (art. 13). Thus, Convention states must grant these rights to nationals of other Convention states even if they do not grant these rights to their own nationals. There are reservations in Article 16, however, which enable Convention states to extend protection to nationals of only those states which grant the same rights. The rights subject to this form of reciprocity are: right to equitable remuneration for performance of phonograms (art. 12) and public performance right to broadcasters (art. 13(d)). Rome Convention, supra note 18.
53. Performances and Phonograms Treaty, supra note 14, art. 4(1).
54. Id. art. 4(2). Performance rights are granted under article 15, which provides in pertinent part: Any Contracting Party may in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of paragraph (1) [the performance right] 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. Id. art. 15(3).
55. See STEWART, supra note 47, at 191.
56. WIPO Guide to the Berne Convention 41 (World Intellectual Property Organization, 1978).
57. Moral Rights were proposed at the outset of the discussion of a new treaty for the protection of performers and producers: [T]he intensive manipulation of recorded performances made possible by digital technology may amount to distortion, mutilation or other modification of a performance which would be prejudicial to the honor or reputation of the performers. Certain other techniques, such as dubbing . . . and play-back . . may also be applied in a way that might be prejudicial. Performers deserve protection against such acts. . . . Performers equally desire a right to claim that they are the performers of their performance. Committee of Experts on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms, Questions Concerning a possible Instrument on the Protection of the Rights of Performers and Producers of Phonograms, WIPO Doc. INR/CE/I/2 12 (Mar. 12, 1993).
58. Id.
59. Producers are generally either companies or employees of companies, and as such do not have moral rights.
60. The moral rights granted are based on Article 6bis of the Berne Convention. It was suggested in the last version of the Performances and Phonograms Treaty prior to the December, 1996 meeting, that the established interpretation of Berne Convention Article 6bis should be used to construe the moral rights under the new treaty. Diplomatic Conference on certain Copyright and Neighboring Rights Questions, Basic Proposal for the Substantive Provisions of the Treaty for the Protection of the Rights of Performers and Producers of Phonograms to be Considered by the Diplomatic Conference, WIPO Doc. No. CRNR/DC/5 n.5.07 (Aug. 30, 1996) [hereinafter Basic Proposal].
61. As denned in the Berne Convention, the moral right of attribution gives the author the rights to: claim the paternity of his work-to assert that he is its creator. Usually he does so by placing his name on the copies . . . . This right of paternity can be . . . used in a negative say i.e. by publishing his work under a pseudonym or by keeping it anonymous, and he can, at anytime change his mind and reject his pseudonym or abandon his anonymity. Under it an author may refuse to have his name applied to a work that is not his; nor can anyone filch the name of another by adding it to a work the latter never created. . . . [I]t is exercisable even against those permitted by the Convention to reproducer the work or to take extracts from it; the author's name must be mentioned. . . . WIPO, Guide to the Berne Convention, supra note 53, at 41.
62. AS defined in the Berne Convention, the right of integrity (also know as the right of respect) permits the author to object to: any distortion, mutilation or other modification of, or other derogatory action in relation to, the work which would be prejudicial to the author's honor or reputation. The formula is very elastic and leaves for a good deal of latitude to the courts. Generally speaking, a person permitted to make use of a work . . . may not change it either by deletion or by making addition. [It] allows the author to demand, for example, the preservation of his plot and the main features of his characters from the changes which will alter the nature of the work or the author's basic message, the Convention speaks of prejudice to his honor and reputation. The formula is very general. The author must decide whether the fact that the text was, during its adaptation to the theater or screen, given a slightly pornographic twist to meet the taste of some members of the audience, ruined his reputation as a serious author or, on the contrary, gave his work a flavor more suitable to meet the customs of a later age. Id. at 42.
63. Berne Convention, supra note 13, art. 6bis.
64. The Performances and Phonograms Treaty provides in relevant part: Independently of a performers'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 omis-sion 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. Performances and Phonograms Treaty, supra note 14, art. 5(1).
65. "The proposal of the United States was not that moral rights should be transferrable, but that those rights should be waivable, in the context of uses covered by contract between the performer and producer of a sound recording. The Delegation was not suggesting that a performer could be asked to sign a contract waiving his moral rights in general. However, the Delegation believed that it would be useful to have an express recognition of the waivability of moral rights in specific, duly determined contexts." Committee of Experts on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms, Report, WIPO Doc. No. INR/CE/iv/8 25 (Sept. 12, 1995).
66. The only explicit moral rights granted under the federal copyright statute are the right of attribution and integrity. These rights apply only to the narrow class of "works of art" defined in 17 U.S.C. § 101. These rights were incorporated into the copyright statute in 1990 under Pub. L No. 101-650, § 106A, 104 Stat. 5089, 5129-30.
67. The House Report accompanying the Berne Implementation Act of 1988 states: [T]here is a composite of laws in this country that provides the kind of protection envisioned by Article 6bis. Federal laws include 17 U.S.C. § 106, relating to derivative works, 17 U.S.C. § 115(a)(2), relating to distortions of musical works under the compulsory license respecting sound recordings; 17 U.S.C. § 203, relating to termination of transfers and licenses, and section 43(a) of the Lanham Act, relating to false designations of origin and false descriptions. State and local laws include those relating to publicity, contractual violations, fraud and misrepresentation, unfair competition, defamation, and invasion of privacy, In addition, eight states have recently enacted specific statutes protecting the rights of integrity and paternity in certain works of art. Finally, some courts have recognized the equivalent of such rights. H.R. REP. NO. 100-609, 100th Cong., 2d Sess., 34 (1988). For criticism of the U.S.'s proclamation of adhesion to article 6bis of the Berne Convention, see Adolph Dietz, The United States and Moral Rights: Idiosyncracy or Approximation? Observations on a Problematical relationship Underlying United States Adherence to the Berne Convention, 142 REVUE INTERNATIONALE DROIT D'AUTEUR 222 (1989). See also Jane Ginsberg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 13 COLUM-VLA J.L. & ARTS 477 (1990); Ginsberg & Kernochan, One Hundred Two Years Later: The United States Joins the Berne Convention, 13 COLUM-VLA J.L. & ARTS 1 (1998); Edward Damich, Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 COLUM-VLA J.L. & ARTS 143 (1986); COPYRIGHT LAW AND PRACTICE, supra note 5, at 1022-23.
68. The House Report accompanying the Berne Implementation Act of 1988 states: [T]here is a composite of laws in this country that provides the kind of protection envisioned by Article 6bis. Federal laws include 17 U.S.C. § 106, relating to derivative works, 17 U.S.C. § 115(a)(2), relating to distortions of musical works under the compulsory license respecting sound recordings; 17 U.S.C. § 203, relating to termination of transfers and licenses, and section 43(a) of the Lanham Act, relating to false designations of origin and false descriptions. State and local laws include those relating to publicity, contractual violations, fraud and misrepresentation, unfair competition, defamation, and invasion of privacy, In addition, eight states have recently enacted specific statutes protecting the rights of integrity and paternity in certain works of art. Finally, some courts have recognized the equivalent of such rights. H.R. REP. NO. 100-609, 100th Cong., 2d Sess., 34 (1988). For criticism of the U.S.'s proclamation of adhesion to article 6bis of the Berne Convention, see Adolph Dietz, The United States and Moral Rights: Idiosyncracy or Approximation? Observations on a Problematical relationship Underlying United States Adherence to the Berne Convention, 142 REVUE INTERNATIONALE DROIT D'AUTEUR 222 (1989). See also Jane Ginsberg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 13 COLUM-VLA J.L. & ARTS 477 (1990); Ginsberg & Kernochan, One Hundred Two Years Later: The United States Joins the Berne Convention, 13 COLUM-VLA J.L. & ARTS 1 (1998); Edward Damich, Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 COLUM-VLA J.L. & ARTS 143 (1986); COPYRIGHT LAW AND PRACTICE, supra note 5, at 1022-23.
69. The House Report accompanying the Berne Implementation Act of 1988 states: [T]here is a composite of laws in this country that provides the kind of protection envisioned by Article 6bis. Federal laws include 17 U.S.C. § 106, relating to derivative works, 17 U.S.C. § 115(a)(2), relating to distortions of musical works under the compulsory license respecting sound recordings; 17 U.S.C. § 203, relating to termination of transfers and licenses, and section 43(a) of the Lanham Act, relating to false designations of origin and false descriptions. State and local laws include those relating to publicity, contractual violations, fraud and misrepresentation, unfair competition, defamation, and invasion of privacy, In addition, eight states have recently enacted specific statutes protecting the rights of integrity and paternity in certain works of art. Finally, some courts have recognized the equivalent of such rights. H.R. REP. NO. 100-609, 100th Cong., 2d Sess., 34 (1988). For criticism of the U.S.'s proclamation of adhesion to article 6bis of the Berne Convention, see Adolph Dietz, The United States and Moral Rights: Idiosyncracy or Approximation? Observations on a Problematical relationship Underlying United States Adherence to the Berne Convention, 142 REVUE INTERNATIONALE DROIT D'AUTEUR 222 (1989). See also Jane Ginsberg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 13 COLUM-VLA J.L. & ARTS 477 (1990); Ginsberg & Kernochan, One Hundred Two Years Later: The United States Joins the Berne Convention, 13 COLUM-VLA J.L. & ARTS 1 (1998); Edward Damich, Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 COLUM-VLA J.L. & ARTS 143 (1986); COPYRIGHT LAW AND PRACTICE, supra note 5, at 1022-23.
70. The House Report accompanying the Berne Implementation Act of 1988 states: [T]here is a composite of laws in this country that provides the kind of protection envisioned by Article 6bis. Federal laws include 17 U.S.C. § 106, relating to derivative works, 17 U.S.C. § 115(a)(2), relating to distortions of musical works under the compulsory license respecting sound recordings; 17 U.S.C. § 203, relating to termination of transfers and licenses, and section 43(a) of the Lanham Act, relating to false designations of origin and false descriptions. State and local laws include those relating to publicity, contractual violations, fraud and misrepresentation, unfair competition, defamation, and invasion of privacy, In addition, eight states have recently enacted specific statutes protecting the rights of integrity and paternity in certain works of art. Finally, some courts have recognized the equivalent of such rights. H.R. REP. NO. 100-609, 100th Cong., 2d Sess., 34 (1988). For criticism of the U.S.'s proclamation of adhesion to article 6bis of the Berne Convention, see Adolph Dietz, The United States and Moral Rights: Idiosyncracy or Approximation? Observations on a Problematical relationship Underlying United States Adherence to the Berne Convention, 142 REVUE INTERNATIONALE DROIT D'AUTEUR 222 (1989). See also Jane Ginsberg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 13 COLUM-VLA J.L. & ARTS 477 (1990); Ginsberg & Kernochan, One Hundred Two Years Later: The United States Joins the Berne Convention, 13 COLUM-VLA J.L. & ARTS 1 (1998); Edward Damich, Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 COLUM-VLA J.L. & ARTS 143 (1986); COPYRIGHT LAW AND PRACTICE, supra note 5, at 1022-23.
71. The House Report accompanying the Berne Implementation Act of 1988 states: [T]here is a composite of laws in this country that provides the kind of protection envisioned by Article 6bis. Federal laws include 17 U.S.C. § 106, relating to derivative works, 17 U.S.C. § 115(a)(2), relating to distortions of musical works under the compulsory license respecting sound recordings; 17 U.S.C. § 203, relating to termination of transfers and licenses, and section 43(a) of the Lanham Act, relating to false designations of origin and false descriptions. State and local laws include those relating to publicity, contractual violations, fraud and misrepresentation, unfair competition, defamation, and invasion of privacy, In addition, eight states have recently enacted specific statutes protecting the rights of integrity and paternity in certain works of art. Finally, some courts have recognized the equivalent of such rights. H.R. REP. NO. 100-609, 100th Cong., 2d Sess., 34 (1988). For criticism of the U.S.'s proclamation of adhesion to article 6bis of the Berne Convention, see Adolph Dietz, The United States and Moral Rights: Idiosyncracy or Approximation? Observations on a Problematical relationship Underlying United States Adherence to the Berne Convention, 142 REVUE INTERNATIONALE DROIT D'AUTEUR 222 (1989). See also Jane Ginsberg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 13 COLUM-VLA J.L. & ARTS 477 (1990); Ginsberg & Kernochan, One Hundred Two Years Later: The United States Joins the Berne Convention, 13 COLUM-VLA J.L. & ARTS 1 (1998); Edward Damich, Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 COLUM-VLA J.L. & ARTS 143 (1986); COPYRIGHT LAW AND PRACTICE, supra note 5, at 1022-23.
72. See, Adolph Dietz, supra note 64, 142 REVUE INTERNATIONALE DROIT D'AUTEUR.
73. "The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.'" Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340, 349 (1990) (citing U.S. CONST. Art. I, § 8, cl. 8); cf Twentieth Century Music Corp. v. Aiken, 442 U.S. 151, 156 (1975)
74. Under the Performances and Phonograms Treaty savings clause, no provision in the Treaty is supposed to conflict with rights granted any other treaties. See supra notes 35-37 and accompanying text. Authors could claim that their economic rights under the Berne Convention should be favored over the moral rights of a performer or producer.
75. As of January 17, 1997, the Clinton Administration was "undecided on the question of whether any new domestic legislation is needed to comply with the two international copyright treaties." 53 PAT. TRADEMARK & COPYRIGHT J. (BNA) 1311, 241 (Jan. 23, 1997). The other treaty is the WIPO Copyright Treaty, see supra note 34.
76. S. REP. NO. 100-352, 100th Cong., 2d Sess. 9-10 (1988); H.R. REP. NO. 100-609, 100th Cong., 2d Sess. 34 n.67 (1988).
77. Performance and Phonograms Treaty, supra note 14, art. 5(1).
78. Id. art 5(2). It is mandatory that at least some moral rights live on after the performer's death. See WIPO Guide to the Berne Convention, supra note 53, at 44, explanation of 6bis(2) ("the Convention, though stipulating that a complete extinction of the moral rights on the death of the author is not permitted, allows the Union countries to permit one or other or the rights comprising the moral right to lapse, after [the death of the author]).
79. The U.S. could show, however, that some of the rights granted under the Copyright Act, as well as some state rights of publicity extend beyond the life the performer. For more on the U.S.'s protection, or lack there of, of authors' moral rights, see Edward J. Damich, The Right of Personality: A Common - Law Basis for the Protection of the Moral Rights of Authors, 23 GA. L. REV. 1 (1988).
80. Rome Convention states in pertinent part: The protection provided for performers by this Convention shall include the possibility of preventing: (a) the broadcasting and the communication to the public, without their consent, of their performance, except where the performance used in the broadcast to the public communication is itself already a broadcaster or is made from a fixation; (b) the fixation, without their consent, of their unfixed performance. Rome Convention, supra note 18, art. 7(1).
81. "Communication to the public" is defined as: the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or 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." Performances and Phonograms Treaty, supra note 14, art. 2.
82. "Broadcasting" is defined as: 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" when the means for decrypting are provided to the public by the broadcasting organization or with its consent. Id. art. 2.
83. Id. art. 6(1).
84. This right is also included in the TRIPs Agreement: In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcast by wireless means and the communication to the public of their live performance. TRIPs, supra note 23, art.14(1).
85. The Rome Convention specifically omitted wire diffusion, sound relay and cable, from the definition of broadcasting. See WIPO Guide to the Rome Convention and to the Phonograms Convention 24 (World Intellectual Property Organization, 1961).
86. See Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4974 (1994) [hereinafter URAA]. Section 512 of the URAA created 17 U.S.C. § 1101.
87. Rome Convention, supra note 18, art. 7.
88. Id. art. 10.
89. Id. art. 13.
90. See WIPO Guide to the Rome Convention and to the Phonograms Convention, supra note 75, at 34. As the guide notes, "some think it is paradoxical, regrettable and unfair" that performers have only the "possibility of preventing" unauthorized reproductions while powerful broadcasters and producers have the right to authorize or prohibit reproductions. Id. At least compulsory licensing for reproductions of performances is impermissible under article 7, since compulsory licensing would deny performers the possibility of preventing the enumerated acts. Id.
91. Performances and Phonograms Treaty, supra note 14, art. 7.
92. Rome Convention, supra note 18, art. 3(e). Fixation is not specifically defined the Rome Convention. It is unclear whether digital fixation, which takes place in bits not "real" sounds, is covered under Rome, particularly since digital fixation was not around when the Convention was written.
93. See Basic Proposal, supra note 57, at n.7.07.
94. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), cert. denied, 114 S. Ct. 671 (1994) (unauthorized storage in random access memory, "RAM," violates the reproduction right); Advanced Computer Services of Michigan v. MAI Systems Corp., 845 F. Supp. 356 (E.D. Va. 1994 ) (a program transferred to RAM is stable enough to be considered a reproduction under 17 U.S.C. § 101 ); Sega Enters. Ltd. v. Accolade. Inc., 785 F. Supp. 1392 (N.D. Ca;.). aff'd, 977 F.2d 1510 (9th Cir. 1992) (computer program stored temporarily in a computer's RAM is a copy under U.S.C. § 101).
95. On the final day of the Diplomatic Conference, the more radical statement that the uploading and downloading of a work by a computer was a reproduction was deleted from the treaty. Not even this deletion eliminated the controversy, however, for the definition still read that temporary and incidental storage fell within the parameters of the reproduction right. The controversy over this issue was so great that two and a half out of the three final hours of the Diplomatic Conference were dedicated to hashing out the determinative definition. Finally, it was decided that reproduction would not be expressly defined in the treaty but that a separate statement of consensus would be created. See Seth Greenstein's web cite on the Internet at http://www.hrrc.org/wr_12-20.html. The statement of consensus comments that "storage of a protected performance or phonogram in digital form in an electronic medium constitutes a reproduction within the meaning of . . . Articles [7, 11, and 16]." Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, Agreed Statements Concerning the WIPO Performances and Phonograms Treaty, WIPO Doc. CRNR/DC/97 (Dec. 23, 1996) [hereinafter Agreed Statements]. This definition adopts a more modified U.S. proposal, though the definition of storage is not defined in either the treaty nor the statement of consensus. Still, the better interpretation is that it includes temporary reproductions in RAM.
96. It is interesting that the August 30, 1996 version of the Performances and Phonograms Treaty, the last draft prior to the Diplomatic Conference in December, included a modification right in a separate article. The right was proposed ostensibly to "cover any possible situation in which digital or other technological manipulation might be used to circumvent traditional notions of reproduction." Basic Proposal, supra note 57, at n.8.04. This article was dropped from the final version of the treaty, probably because the modification right is redundant of the reproduction right. As was noted in the August 30th version, "[i]t has been argued that any alteration or modification of a performance or a phonogram cannot occur without reproducing the fixation of the performance or the phonogram." Id. The assumption that the reproduction right covers all rights to modification, however, could be undermined if a country were to ignore or disagree with the Agreed Statements, supra note 88, which assert that the reproduction right includes temporary reproductions. In that case, a performer might not have a right to modification if the means to modify the performance required making only a temporary reproduction, and the result was that the modification was not substantially similar to the original. The general rule of interpretation of treaties, however, provides that: "any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions" are to be taken into account in determining the meaning of the treaty's terms. Vienna Convention on the Law of Treaties, UN Doc. A/ Conf. 39/28, U.K.T.S. 58, art. 3(a) (1980), 8 I.L.M. 679.
97. 17 U.S.C. § 106(1).
98. 25 ACED 309 (1971) [hereinafter the "Geneva Convention"].
99. "'[D]istribution to the public' means any act by which duplicates of a phonogram are offered, directly or indirectly, to the general public or any section thereof." Id. art. 1(d).
100. Id. art. 1(c).
101. For a further discussion of distribution under the Geneva Convention see, Martin, supra note 7, at 755-58.
102. While many of the terms used in the treaty are taken from the Rome Convention, some are newly defined, including, of course, "distribution." The distribution rights is defined as: (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 though 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. Performances and Phonograms Treaty, supra note 14, art. 8. The Rome Convention defined "phonograms" as ". . .exclusively aural fixation of sounds or a performance or of other sounds." Rome Convention, supra note 18, art. 3. The new treaty expands this definition to include digitally fixed data that are not "real" sounds. Basic Proposal, supra note 57, at n.2.07-2.08.
103. Definition of "Performer," Performances and Phonograms Treaty, supra note 14, art. 2(a).
104. The term "exhaustion" means that the rights holder's control over an authorized material embodiment of the sound recording ceases with an authorized sale of that embodiment. Exhaustion may be limited geographically, as within a country or a trading block such as the European Community, or, it may be subject to no limitations, as with international exhaustion, in which case right holder's interest ceases with the first authorized distribution anywhere in the world.
105. Id. art. 9 alternative E. Interestingly, alternative E was endorsed by the U.S. There was also a proposition to limit the distribution right to musical performances fixed in phonograms. This suggestion was rejected, so the distribution right covers all performances defined in article 2 of the Performances and Phonograms Treaty, supra note 14. See definition of "performers," supra note 22.
106. 17 U.S.C. § 106(2). Folklore would be covered under the predominant subject matter category.
107. 17 U.S.C. § 109 is a limitation of the distribution right set forth under § 106(3). While section 109(a) limits the author's right after the first sale of the work, the next subsection, 109(b)(1)(A), expressly affirms that copyright owners, including sound recording copyright owners, have commercial rental rights. This same section also exempts non-profit library and educational facilities from the rental right.
108. TRIPs, supra note 23, art. 14.
109. Performances and Phonograms Treaty, supra note 14, arts. 9(2) and 13(2). This language was included in the TRIPs with regard to computer rentals. TRIPs, supra note 23, art. 14(4). This provision allows Japan, the only country with such a system in place, to join the Treaty.
110. Performances and Phonograms Treaty states in relevant part: "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 form a place and at a time individually chosen by them." Performances and Phonograms Treaty, supra note 14, art. 10. An equivalent right is granted producers in article 14 of the Treaty.
111. Its redundant to use both terms - on-demand and interactive - since they mean the same thing.
112. "Making available to the public" is not defined in the Treaty. The Basic Proposal, its predecessor, does, however, define the term as: "making available of fixed performances by transmission," as opposed to distributions of hard copies. Basic Proposal, supra note 57, at n.11.02. Furthermore, the notes to the Basic Proposal go on to state that the right is limited to interactive and on-demand access. Id. 106 17 U.S.C. § 106(6). In notes on an earlier draft of the Treaty, interactive was construed as including subscription transmissions. The shady reasoning was that subscription services are "near to interactive" and might conflict with the "normal exploitation" of right holders. See Basic Proposal, supra note 57, at n.11.06-11.08. If this definition had been adopted it would have compelled the U.S. to amend its laws, for the U.S. only grants limited rights to digital subscription transmissions under 17 U.S. C. § 114(d)(2). However, there is nothing in the plain language of the article that would support this interpretation. Furthermore, there are no notes accompanying the final version of the treaty, and the agreed statements concerning the treaty do not make mention of this section. Thus, within the plain meaning of the Treaty, this article only grants an exclusive right to interactive transmissions.
113. "Sound recordings" are defined as: "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture, or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied." Id. § 101.
114. As of February 1997, there are no interactive services, either digital or analog in place. This and other facts have lead at least one commentator to severely criticize the Digital Performance Right in Sound Recordings Act as "impoverished. . . convoluted, oafish drafting which reads far more like an industry standards contract than a statute embodying principles of copyright policy." WILLIAM F. PATRY, COPYRIGHT LAW AND PRACTICE 1996 SUPPLEMENT 124 (1996). There is, however, under development a European "direct delivery" system called MODE in the making. MODE, an acronym for "Music on Demand" is financed by the European Commission under the IMPACT Programme of DGXII. The European Commission approved a 500.000 ECU grant, though the total budget is estimated to be 1.250.000 ECU, work commenced in December of 1995. The object of MODE is to "develop, evaluate, and commercialize an ISDN based telematic service for marketing, tele-publishing and tele-shopping of music provided by the music industry." http://www.mode.net/project/intro.html. MODE intends to provide 4 user services: an online EuroISDN capable of real-time sound recording listening and delivery, as well as hard copy ordering; Internet access to delivery of low quality tracks and hard copy ordering; modem access supported "like the Internet access" also providing small excerpts and low quality track delivery, and a CD-ROM catalog, http://www.mode.net/project/usersys.html. See also, http://www.iis.fhg.de/departs/amm/layer3 for a description a currently available real-time, two bit rate music link called the MPEG Audio Layer 3 system, developed by one of the partners in the MODE project, the teleco Fraunhoffer IIS. The telecos signed onto the MODE project are: Sygna and Telenor (both of Norway), Albanet of Scotland, SGAI of Spain, Fraunhoffer US of German, Skyrr of Iceland and RIM of the Netherlands. Http://www.mode.net/partners/index.html. Independent record labels will be responsible for provided the music to be digitally delivered to individuals, who will have special MPEG decoders delivered by MODE. Thus far, 68 record labels from Austria, Great Britain, Germany, Greenland, Island, the Netherlands, Norway, Spain, Switzerland and Turkey are participating in the MODE project. http://www.mode.net/labels/index.html. Though the project has not yet been completed, servers are currently being tested in Island and are slated to be implemented in Norway, Iceland, Spain and Great Britain in the spring. http://www.mode.net/status/index.html.
115. "Publication" is defined as: "the offering of copies of the fixed performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity." Performances and Phonograms Treaty, supra note 14, art. 2.
116. "Communication to the public" is defined as: "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." Id.
117. Rome Convention, supra note 18, art. 12.
118. Under the Performances and Phonograms Treaty, supra note 14, art. 15(4), "commercial purposes" includes interactive performances, where the public can access wire and wireless broadcasts at a time and place they choose.
119. See definition of "broadcast," supra note 77.
120. See supra note 76.
121. Performances and Phonograms Treaty, states in relevant part: 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. Contacting 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. Performances and Phonograms Treaty, supra note 14, art. 15(2). This language is taken directly from the Rome Convention art. 12.
122. WIPO Guide to the Rome Convention and to the Phonograms Convention, supra note 75, at 46.
123. Performances and Phonograms Treaty, supra note 14, art. 15(c).
124. See Martin, supra note 7, at 736-40.
125. This article, like its predecessor in the Rome Convention, was not adopted without controversy. In the end, there was no consensus on the level of rights which should exist without the possibility of reservation. See Agreed Statements, supra note 88, art. 15. Apparently this article is not the final say on the subject. Id. ("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.") The controversy has been revisited many times and in many different arenas, including the United States, during the more than 50 year battle between performers, broadcasters and authors for sound recording performance rights. The battle can be described briefly as a fight between performers who want performance rights, broadcasters who do not want to pay for those performance rights and insist that they provide a valuable service to performers by broadcasting their works to many people giving them free advertizing, which they should be thankful for, and authors, who are paranoid that their valuable performance rights will be eroded if broadcasters have to also pay performers. For more on the international controversy see generally, WIPO Guide to the Rome Convention and to the Phonograms Convention, supra note 75, at 50-52. For more on the domestic controversy see generally REGISTER OF COPYRIGHTS, HOUSE SUBCOMM. ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE OF THE HOUSE JUDICIARY COMM., 95th Cong., 2d Sess., PERFORMANCE RIGHTS IN SOUND RECORDINGS (Comm. Print) (1978); see also Performance Rights in Sound Recordings Act of 1995: Hearing on S. 227 Before the Senate Committee on the Judiciary, 104th Cong., 1st Sess. 20 (1995) (statement of Marybeth Peters, Register of Copyrights).
126. This article, like its predecessor in the Rome Convention, was not adopted without controversy. In the end, there was no consensus on the level of rights which should exist without the possibility of reservation. See Agreed Statements, supra note 88, art. 15. Apparently this article is not the final say on the subject. Id. ("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.") The controversy has been revisited many times and in many different arenas,
127. This article, like its predecessor in the Rome Convention, was not adopted without controversy. In the end, there was no consensus on the level of rights which should exist without the possibility of reservation. See Agreed Statements, supra note 88, art. 15. Apparently this article is not the final say on the subject. Id. ("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.") The controversy has been revisited many times and in many different arenas, including the United States, during the more than 50 year battle between performers, broadcasters and authors for sound recording performance rights. The battle can be described briefly as a fight between performers who want performance rights, broadcasters who do not want to pay for those performance rights and insist that they provide a valuable service to performers by broadcasting their works to many people giving them free advertizing, which they should be thankful for, and authors, who are paranoid that their valuable performance rights will be eroded if broadcasters have to also pay performers. For more on the international controversy see generally, WIPO Guide to the Rome Convention and to the Phonograms Convention, supra note 75, at 50-52. For more on the domestic controversy see generally REGISTER OF COPYRIGHTS, HOUSE SUBCOMM. ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE OF THE HOUSE JUDICIARY COMM., 95th Cong., 2d Sess., PERFORMANCE RIGHTS IN SOUND RECORDINGS (Comm. Print) (1978); see also Performance Rights in Sound Recordings Act of 1995: Hearing on S. 227 Before the Senate Committee on the Judiciary, 104th Cong., 1st Sess. 20 (1995) (statement of Marybeth Peters, Register of Copyrights).
128. This article, like its predecessor in the Rome Convention, was not adopted without controversy. In the end, there was no consensus on the level of rights which should exist without the possibility of reservation. See Agreed Statements, supra note 88, art. 15. Apparently this article is not the final say on the subject. Id. ("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.") The controversy has been revisited many times and in many different arenas, including the United States, during the more than 50 year battle between performers, broadcasters and authors for sound recording performance rights. The battle can be described briefly as a fight between performers who want performance rights, broadcasters who do not want to pay for those performance rights and insist that they provide a valuable service to performers by broadcasting their works to many people giving them free advertizing, which they should be thankful for, and authors, who are paranoid that their valuable performance rights will be eroded if broadcasters have to also pay performers. For more on the international controversy see generally, WIPO Guide to the Rome Convention and to the Phonograms Convention, supra note 75, at 50-52. For more on the domestic controversy see generally REGISTER OF COPYRIGHTS, HOUSE SUBCOMM. ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE OF THE HOUSE JUDICIARY COMM., 95th Cong., 2d Sess., PERFORMANCE RIGHTS IN SOUND RECORDINGS (Comm. Print) (1978); see also Performance Rights in Sound Recordings Act of 1995: Hearing on S. 227 Before the Senate Committee on the Judiciary, 104th Cong., 1st Sess. 20 (1995) (statement of Marybeth Peters, Register of Copyrights).
129. Performances and Phonograms Treaty, supra note 14, art. 16.
130. As the Treaty preamble states: "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." For more on the effects of limitations in copyright treaties see Paul Edward Geller, Conflicts of Laws in Cyberspace: Rethinking International Copyright, 44 JOURNAL OF THE COPYRIGHT SOCIETY OF THE U.S.A. 2, [8-9] (1997).
131. Paragraph 2 of article 16 is modeled on the Berne Convention article 9(2), which permits member countries to limit the reproduction right in special cases so long as it does not conflict with the normal exploitation of a work. Berne Convention, supra note 13, art. 9(2); see also Basic Proposal, supra note 57, at n.13.03.
132. Paragraph 2 of article 16 is modeled on the Berne Convention article 9(2), which permits member countries to limit the reproduction right in special cases so long as it does not conflict with the normal exploitation of a work. Berne Convention, supra note 13, art. 9(2); see also Basic Proposal, supra note 57, at n.13.03.
133. The Rome Convention states in pertinent part: "However, compulsory licenses may be provided for only to the extent to which they are compatible with this Convention." Rome Convention, supra note 18, art.15(2).
134. WIPO Guide to the Rome Convention and the Phonograms Convention, supra note 75, at 59.
135. Specifically, article 17 states: (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 from the end of the year in which the fixation was made. Performances and Phonograms Treaty, supra note 14, art. 17.
136. Under the TRIPs Agreement, the minimum term of protection for all works other than photographic works or works of applied art, is 50 years from the end of the year of publication or, if the work is not published, from the date the work is made. TRIPs, supra note 23, art. 12. The language of the Performances and Phonograms Treaty article 17(2) is in form and content very similar to article 12 of the TRIPs Agreement.
137. Since the Civil Law System by and large did not consider sound recordings to be works of authors, they were given much shorter terms of protection under the neighboring rights scheme. STEWART, supra note 47, at 191. Since the U.S. considers all protectable works of authors, all subject matter is granted the same term of protection.
138. See generally Ysolde Gendreau, Copyright Harmonization in the European Union and in North America, 20 COLUM.-VLA J.L. & ARTS 37 (1995). The WIPO Copyright Treaty also aims at harmonizing international copyright standards at a higher minimum level. See WIPO Copyright Treaty, supra note 34. See generally William F. Patry, The Failure Of The American Copyright System: Protecting the Idle Rich, 72 NOTRE DAME L. REV. 1 (1997).
139. See generally Ysolde Gendreau, Copyright Harmonization in the European Union and in North America, 20 COLUM.-VLA J.L. & ARTS 37 (1995). The WIPO Copyright Treaty also aims at harmonizing international copyright standards at a higher minimum level. See WIPO Copyright Treaty, supra note 34. See generally William F. Patry, The Failure Of The American Copyright System: Protecting the Idle Rich, 72 NOTRE DAME L. REV. 1 (1997).
140. Performances and Phonograms Treaty, supra note 14, arts. 18 and 19(1).
141. "Rights management information" is defined as: 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. Id. art. 19(2).
142. 6 U.S.T. 2731 (1955), as amended, 25 U.S.T. 1341(1971) (the "UCC"). UCC article 1 states: "[e]ach Contracting State undertakes to provide for adequate and effective protection of the rights of authors and other copyright properties. . ."
143. TRIPs, supra note 23, arts. 41-61.
144. In earlier drafts, the Treaty included the TRIPs articles 41-61 enforcement language. Unfortunately, this language was deleted during the final Diplomatic Conference which met between December 2-20th, 1997. The TRIPs enforcement procedures are incredibly comprehensive and do not require petition to the International Court of Justice to resolve disputes or noncompliance. Current article 1 of the Treaty, which contains the public law directives, and was in the earlier draft, did survive. These provisions are very watered down, however, in comparison with the omitted substantive enforcement provisions.
145. Performances and Phonograms Treaty, supra note 14, art. 18.
146. See 2 COPYRIGHT LAW AND PRACTICE, supra note 5, at 1145.
147. The Committees of Experts of Brazil and Canada were the other presenters. Basic Proposal, supra note 57, at n.23.08.
148. Pub. L. No. 102-563,106 Stat. 4237 (1992) (as amended by Copyright Royalty Reform Act of 1993).
149. Id. § 1002(e).
150. This result is completely inconsistent with the reasons for enacting §§114(d)(2)(E) and 115(c)(3)(G). A better interpretation of these sections is to read these sections as saying "notwithstanding § 1002(e)" rather than "except for. . . ." Even if the statute were interpreted this way, the U.S. still fails to provide any remedy for altering rights management information that is not encoded in a digital sound recording.
151. See, e.g., ALASKA STAT. § 45.50.900; COLO. REV. STAT. § 18-4-604 (1996); KY. REV. STAT. ANN. § 434.445(4) (1996); LA. REV. STAT. ANN. 14 § 223.6 (West 1996); MD. CODE OF 1957, crimes and punishments § 467A(b) (1996); MONT. CODE ANN. § 30-13-144 (1995); N.J. REV. STAT. § 2C:21-21(b)(4) (1996); N.Y. PENAL LAW § 275.35, § 275.40 (McKinney 1996); N.D. CENT. CODE § 47-21.1-03(1995); TEX. Bus. & COM. CODE ANN. § 35.94(a) (West 1996).
152. See, e.g., ARIZ. REV. STAT. ANN. § 13-3705 (1996); D.C. CODE ANN. § 22-3814.1(1996); IOWA CODE § 714.15 (1996); KAN. STAT. ANN. § 21-3750 (1996); MICH. COMP. LAWS § 752.1053 (1996); MINN. STAT. § 325E.18 (1996); Mo. REV. STAT. § 570.240 (1996); N.M. STAT. ANN. § 30-16B-4 (Michie 1996); UTAH CODE ANN. § 13-10-8 (1996); NEV. REV. STAT. § 205.217(2) (1995); N.C. GEN. STAT. § 14-435 (1996); OR. REV. STAT. § 194.868 (1995); PA. STAT. ANN. § 4116(e) (1996); VA. CODE ANN. § 59.1-41.4 (Michie 1996); WASH. REV. CODE § 19.25.040(1) (1996); W. VA. CODE § 61-3-50(a).
153. See, e.g., COLO. REV. STAT. § 18-4-605 (1996); KY. REV. STAT. ANN. § 434.445(5) (1996); LA. REV. STAT. ANN. 14 § 223.2 (West 1996); MD. CODE OF 1957, crimes and punishments § 467A(c)(1) (1996); MONT. CODE ANN. § 30-13-146 (1995); N.J. REV. STAT. § 2C:21-21(f)(1) (1996); N.Y. PENAL LAW § 275.45 (McKinney 1996); N.D. CENT. CODE § 47-21.1-05 (1995); OR. REV. STAT. § 194.873 (1995); WASH. REV. CODE § 19.25.800 (1996).
154. The WIPO Copyright Treaty contains an almost identical rights management provision in article 12. WIPO Copyright Treaty, supra note 34, art. 12.
155. Providing the means for infringement may be sufficient to establish contributory liability. See Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996) (providing the site and the facilities for a swap meet known for its infringing activities is sufficient to establish contributory liability); Sega Enterprises v. Maphia (N.D. Cal. 1996) (electronic bulletin board operator found contributorily liable for bulletin board users' infringement of plaintiffs video games); A&M Records v. General Audio Video Cassettes, Inc. (C.D. Cal. 1996) (seller of blank audio tapes and duplicating equipment held contributorily liable for violating plaintiffs' reproduction and distribution rights); Southern Bell Tel. & Tel. Co. v. Associated Telephone Directory Publishers, 756 F.2d 801, 811 (11th Cir. 1985); Picker Int'l Corp. v. Imaging Equip. Servs., 931 F. Supp. 18 (D. Mass. 1995), aff'd 94 F.3d 640 (1st. Cir. 1996) (server of plaintiffs topography scanners found contributorily liable for using plaintiffs manual); Metzke v. May Dep't Stores Co., 878 F. Supp. 756 (W.D. Pa. 1995) (foreigner who knew or should have know that overseas knock-offs would be sold in the U.S. held contributorily liable for infringement of reproduction right). See also 2 COPYRIGHT LAW AND PRACTICE, supra note 5, at 1147-51.
156. There is also a good argument that under Sony Corporation of America, Inc. v. Universal City Studios, Inc., 464 U.S. 417 (1984), telecos and cable companies would not be liable. In Sony, the Supreme Court stated: "sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing use." Id. at 446. The Supreme Court has not annunciated a test for "substantially noninfringing use." Telecos and cable companies should be able to pass even the most stringent contributory infringement test, since they do a lot more than simply provide pirates with the means to distribute, reproduce or communicate altered sound recordings.
157. During the House hearings on the NII Copyright Protection Act of 1995, content and information services providers as well as manufacturers and operator service providers represented by the Computer & Communications Industry Association ("CCIA") argued that the language in the circumvention of copyright protections system provision in the NII bills was too broad. The NII bill § 1201 stated: No person shall import, manufacture, or distribute any device. . . or offer or perform any service, the primary purpose or effect of which is to avoid, bypass, remove deactivate, or otherwise circumvent, without the authority of the copyright owner or the law, any process . . . or system which prevents or inhibits the violation of any of the exclusive rights of the copyright owner under section 106. H.R. 2441, 104th Cong., 1st Sess. 5 (1995). The CCIA was concerned that the language of the statute was overly broad, especially in light of the Supreme Courts' decision in Sony supra note 145. NII Copyright Protection Act of 1995, Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 2d Sess. 69 (1996) (Statement of Edward J. Black, President of CCIA). For more on the Sony case, see supra note 145.
158. The Clinton Administration's Working Group on Intellectual Property Rights recommended in their White Paper: On-line Service Providers have a business relationship with their subscribers. They - and, perhaps, only they - are in the position to know the identity and activities of their subscribers and to stop unlawful activities (footnote omitted). And, although indemnification from their subscribers may not reimburse then to the full extent of their liability and other measures may add to their cost of doing business, they are still in a better position to prevent or stop infringement than the copyright owner. Between these two relatively innocent parties, the best policy is to hold the service provider liable. INFORMATION INFRASTRUCTURE TASK FORCE, WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS 117 (Sept. 1995) [hereinafter the WHITE PAPER]. Nonetheless, the Information Infrastructure Task Force's recommendations have not been adopted. In 1995, two bills (referred to as the NII bills), which attempted to revise the copyright statute to include protection of rights management information, were soundly defeated. Neither H.R. 2441, 104th Cong., 1st Sess. (1995) nor S. 1284, 104th Cong., 1st Sess. (1995) exempted telecos or cable operators from liability for "perform[ing] any service, the primary purpose or effect of which is to . . . circumvent . . .any . . . system which prevents or inhibits the violation of any of the exclusive rights of the copyright owner under section 106." H.R. 2441 at 4; S. 1284 at 4. Nor did the bills exempt telecos from liability for knowingly providing or distributing or importing for distribution false copyright management information. H.R. 2441 at 4; S. 1284 at 4-5. This failure to exempt the services providers from contributory liability did not escape the service providers' notice. As the President of the CCIA testified: If the law of contributory infringement and vicarious liability, as interpreted by the White Paper is applied to companies providing interactive services, these companies will be discouraged from providing such services or building the infrastructure for the NII die to the enormous risk of liability. The result might be an NII that only allows users to view data, not engage in two-way interactive communication that all the uploading and manipulation of data. Moreover, such a standard for liability might also coerce on-line service providers to restrict access only to companies and individuals willing and financially able to indemnify themselves if their activities result in copyright infringements on their system. NII Copyright Protection Act of 1995, Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 2d Sess. 67 (1996) (statement of Edward J. Black).
159. Act as of October 28,1992, Pub. L. No. 102-563, 102d Cong., 2d Sess., 106 Stat. 4237. See, e.g., 17 U.S.C. § 1008 (1992).
160. Performances and Phonograms Treaty, supra note 14, art. 19(1).
161. In most other countries, the rights would be considered neighboring rights.
162. Id.
163. See supra notes 41-50 and accompanying text.
164. See supra notes 112-14 and accompanying text.
165. See supra note 45 and accompanying text.
166. See supra note 6.
167. The figures for performance royalties paid out by England in 1989 was $33,720,896, by France in 1988 was $4,453,716, by Germany in 1989 was $32,869,149, by Italy in 1989 was $3,028,578, and by Spain in 1988 was $6,352,005. International Federation of the Phonographic Industry ("IFPI") Summary of National Laws and the Administration Rights, Spring, 1990.
168. See English Copyright, Designs and Patents Act, 1988, as amended by the Broadcasting Act (1990). Parts I, II and VII (copyright and rights in performances) in force as of Aug. 13, 1990.
169. Spain limited its exclusive right to an equitable right of remuneration in response to the Performances and Phonograms Treaty. Ley de propriedad intelectual. Ley 22 of Nov. 11, 1987, as last amended on April 22, 1996, INDUSTRIAL PROPERTY IN COPYRIGHT 26-27 (Dec. 1996).
170. See Code de la propriété intellectuelle (French Copyright Law), Loi 92-957 ( July 1, 1992), as last amended by Loi 95-4, Jan. 3, 1994; Urheberrechtsgesetz (German Copyright Act) of 1965, as last amended Mar. 7, 1990; Legge 633 (Italian Copyright Law) of Apr. 1941, as last amended by Legge 93 of Feb. 5, 1992.
171. Article 12 of the Rome Convention is the perfect example of the compromise struck between those who wished to grant a performance right for secondary uses and those who did not. Unlike a primary use of a sound recording, which takes place in a home, a secondary use takes place in public for example in a disco or over the air. Supposedly this is not the use for which the sound recording was intended and is therefore a secondary use. It was agreed early on in the Conference on the Rome Convention that the public performance right would be subject to a compulsory license with an equitable remuneration for the sound recording owners. It is simply easier to administer with a compulsory licensing system. See STEWART, supra note 47, at 238. The issue of whether or not to make the equitable right of remuneration a minimum requirement was "the most difficult problem before the Conference" and took three drafts of the Convention before it was resolved. WIPO Guide to the Rome Convention and the Phonograms Treaty, supra note 75, at 46. In the end, however, only 4 of the Rome Convention mem-ber states (Congo, Niger, Fiji, and Luxembourg) excluded the secondary usage performance right. See STEWART, supra note 47, at 238.
172. The reservation may be taken under the Rome Convention article 16.1(a)(I). Of course, there is no limitation on granting a performers and producers an exclusive performance right.
173. See supra note 157.
174. See supra note 159 and accompanying text.
175. Performances and Phonograms Treaty, supra note 14, art. 15(1).
176. n U.S.C. § 114(d)(1)
177. Under article 12 of the Rome Convention, the decision of who shares in the single equitable remuneration is first left up to the parties, and if the parties do not agree, then it may be determined by national legislation. But, the international collecting societies worked out an international agreement, which was then recognized by the WIPO. See WIPO Guide to the Rome Convention and to the Phonograms Convention, supra note 75, at 49.
178. FIM/IFPI Agreement (1953), revised in 1976. The agencies agreed that in countries where both are entitled by law to a share, the net proceeds for both broadcasting and public performance are divided equally. Where the a country the right to only one of the two parties it must give the other party one-third of the net proceeds from broadcasting. If the broadcasting took place in a Rome member country, however, the other party gets half the proceeds. WIPO Guide to the Rome Convention and to the Phonograms Convention, supra note 75, at 49. The Intergovernmental Committee of the Rome Convention also made lengthy recommendations on the "Collection and Distribution of Remuneration." The recommendations advocate the establishment of collecting societies in each country where national legislation gives performers and/or producers an article 12 right. It then outlines the possible practices these agencies could use to administer the remuneration, as well as guidelines to facilitate the application of the right. Id. See also STEWART, supra note 47 at 240-41.
179. FIM/IFPI Agreement (1953), revised in 1976. The agencies agreed that in countries where both are entitled by law to a share, the net proceeds for both broadcasting and public performance are divided equally. Where the a country the right to only one of the two parties it must give the other party one-third of the net proceeds from broadcasting. If the broadcasting took place in a Rome member country, however, the other party gets half the proceeds. WIPO Guide to the Rome Convention and to the Phonograms Convention, supra note 75, at 49. The Intergovernmental Committee of the Rome Convention also made lengthy recommendations on the "Collection and Distribution of Remuneration." The recommendations advocate the establishment of collecting societies in each country where national legislation gives performers and/or producers an article 12 right. It then outlines the possible practices these agencies could use to administer the remuneration, as well as guidelines to facilitate the application of the right. Id. See also STEWART, supra note 47 at 240-41.
180. Unlike interactive digital musical delivery services, there are currently such subscription digital services in place in England; the company DMX operates in both the U.S. and England. Thus, the subscription digital performance right, if recognized under a reciprocity theory, could actually generate royalties overseas for U.S. sound recording copyright owners.
181. The Copyright Tribunal has jurisdiction to settle disputes between licensees and users.
182. Copyright, Designs and Patents Act 1988, supra note 157, Pt. 1, ch. VII § 190. See also STEWART, supra note 47, at 523.
183. Thus far, British record companies have not given the PPL a mandate to issue blanket licenses for digital performances.
184. "It is not an infringement of copyright for a transmitting organization . . . to make no more than one copy or phonorecord of a particular transmission program embodying the performance or display . . . ." 17 U.S.C. § 112(a).
185. See William I. Hochberg, Fishing in the Black Box: Developments in International Music Royalty Collecting, 26 BEVERLY HILLS B.A. J. 114, 117 (1992).