WIPO Performances and Phonograms Treaty

WIPO Performances and Phonograms Treaty
Name	WIPO Performances and Phonograms Treaty
Type	International treaty
Date drafted	December 20, 1996
Location signed	Geneva
Date effective	May 20, 2002
Condition effective	30 ratifications
Signatories	96
Parties	112
Depositor	Director General of the World Intellectual Property Organization
Languages	Arabic, Chinese, English, French, Russian, Spanish

WIPO Performances and Phonograms Treaty is a specialized international agreement administered by the World Intellectual Property Organization. Adopted in Geneva in 1996, it significantly updated the global protection for performers and producers of phonograms in the digital age. The treaty entered into force in 2002, establishing new exclusive rights and moral rights to address challenges posed by new technologies. It is considered a cornerstone of modern copyright law alongside its sister agreement, the WIPO Copyright Treaty.

Background and history

The push for a new international instrument gained momentum in the late 1980s and early 1990s, driven by the rapid evolution of digital technology and the Internet. Existing treaties like the Rome Convention and the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations were seen as inadequate for the digital era. A series of diplomatic conferences were convened by the World Intellectual Property Organization, culminating in the December 1996 conference in Geneva. This conference, which also produced the WIPO Copyright Treaty, involved intense negotiations among member states, industry groups like the International Federation of the Phonographic Industry, and performer unions. The final text was adopted on December 20, 1996, marking a major step in adapting intellectual property law to the information society.

Key provisions

A central provision is the requirement for contracting parties to provide adequate legal protection and effective remedies against the circumvention of technological protection measures used by rights holders. The treaty also mandates protection against the removal or alteration of rights management information in electronic form. It clarifies that its protections are independent of protection provided for copyright in literary and artistic works embodied within phonograms. Furthermore, it allows for limitations and exceptions to rights, provided they conform to the three-step test established in other international agreements like the Berne Convention. The treaty also includes provisions on the term of protection and rules concerning national treatment.

Rights granted

For performers, the treaty grants exclusive economic rights over the fixation, reproduction, distribution, rental, and making available of their unfixed performances and phonograms. A critical right is the exclusive right of authorizing the making available of their performances fixed in phonograms to the public, such as through on-demand streaming services. Performers also receive non-transferable moral rights, including the right to claim authorship and to object to prejudicial modifications. For producers of phonograms, the treaty confirms exclusive rights over reproduction, distribution, rental, and making available. The making available right was a landmark addition, directly addressing interactive digital transmissions.

Implementation and impact

Implementation requires contracting parties to enact domestic legislation conforming to the treaty's standards. This has led to significant legal reforms in numerous countries, including amendments to copyright acts in the United States, the European Union, Japan, and Australia. The treaty's influence is evident in the European Union's Information Society Directive and the United States' Digital Millennium Copyright Act. Its provisions have become the international benchmark for protecting neighbouring rights online, shaping litigation and business models for digital music platforms like Spotify and Apple Music. The World Intellectual Property Organization itself plays a key role in monitoring implementation and promoting adherence.

Relationship to other treaties

The treaty operates within a complex ecosystem of international intellectual property agreements. It is considered a special agreement under Article 20 of the Berne Convention and is closely linked to the WIPO Copyright Treaty. It does not derogate from existing obligations under the Rome Convention or the Agreement on Trade-Related Aspects of Intellectual Property Rights. Furthermore, its provisions are integrated into broader trade agreements, such as those negotiated by the World Trade Organization. Later treaties, including the Beijing Treaty on Audiovisual Performances, have built upon its framework to extend protections to other categories of performers.

Criticism and controversy

The treaty has faced criticism from various quarters. Advocates for the public domain and digital rights organizations, such as the Electronic Frontier Foundation, argue that its anti-circumvention rules can stifle fair use, hinder academic research, and impede innovation. Some developing nations have expressed concerns about the cost of implementation and potential restrictions on access to knowledge. Debates also persist regarding the adequacy of remuneration for performers, particularly in the context of digital revenues collected by record labels and streaming services. These controversies reflect ongoing global tensions between strengthening copyright enforcement and preserving user rights in the digital environment.

Category:World Intellectual Property Organization treaties Category:Copyright treaties Category:1996 in law