[Random-bits] new FTAA text available - copyright sections
James Love
james.love@cptech.org
Fri Nov 8 08:00:01 2002
-------- Original Message --------
Subject: new FTAA text available
Date: Fri, 08 Nov 2002 07:58:01 -0500
From: James Love <james.love@cptech.org>
To: Digital Future Coalition Discussion List <dfclist@ala.org>
New FTAA text at http://www.ftaa-alca.org
The new IP chapeter is 53 pages, down from 106 in the earlier draft. Here
is the copyright text:
Derestricted
FTAA.TNC/w/133/Rev.2
November 1, 2002
9.
SECTION 3. COPYRIGHT AND RELATED RIGHTS
Article 1. Definitions
[For the purposes of this Section, the following will be
understood to mean:]
-[Author: [Natural*] person who produces the intellectual
creation;]
-[Performer: the person who performs, sings, reads, recites,
interprets or in any way executes a [literary and artistic] work
[or an expression of folklore];]
-[Performers: all actors, singers, musicians, dancers, or other
persons who act, sing, deliver, declaim, play in, interpret, or
otherwise perform literary or artistic works or expressions of
folklore;]
-[Competent National Authority: Body appointed for the purpose by
the relevant national legislation;]
-[Copy: Physical medium in which the work is embodied as a result
of an act of reproduction;]
-[Successor in interest: The person, whether natural person or
legal entity, to whom the rights recognized in the law are
transferred, in whole or in part, by any means;]
-[Successor in title: The person, whether natural person or legal
entity, to whom rights accorded by this Chapter are transferred
by any means;]
-[Distribution to the public: Act of making available to the
public the original of the work, or [one or more] copies thereof,
[on a phonogram or a permanent or temporary image of the work,]
through sale, rental, loan or any other means[, known or to be
known, of transferring ownership or possession of the original or
copy];]
-[Distribution to the public: any act by which the copies of a
work are offered directly or indirectly to the general public or
to a part thereof. [Distribution to the public through sale,
rental, public loan or any other transfer of the ownership or
possession of the original of the work, or copies thereof that
have not been subject to distribution authorized by the author.
The rental of a copy of an audiovisual work, of a work contained
in a soundtrack, of a computer program, regardless of the
ownership of the copy.]]
-[Broadcast: The [direct or indirect] transmission of sounds or
images and sounds, over a distance for public reception[, through
any medium or procedure, either through cable or wireless];]
-[Expressions of folklore: Productions using elements
characteristic of the traditional cultural patrimony, consisting
of all literary and artistic works created in the national
territory by unknown or unidentified authors presumed to be
nationals or members of their ethnic communities, and that are
transmitted from generation to generation and reflects the
traditional artistic or literary perspective of a community;]
-[Fixation: The incorporation of signs, sounds or images, [or] a
combination thereof[, or a digital representation thereof,] in a
physical material that enables them to be [read,] perceived,
reproduced or communicated[, or any other form of use];]
-[Phonogram: Any [first time] [exclusively aural] fixation of the
sounds of a performance or of other sounds[, or of a [digital]
representation thereof, other than [in the form of] a fixation
included in [a cinematographic or] an audiovisual work].
[Phonographic and magnetic [and digital] recordings shall be
considered copies of phonograms];]
* Brackets in Spanish only; this symbol will appear wherever
multiple Spanish expressions are represented by a single
expression in English.
-[Rights management information: Information which identifies a
work, performance, or phonogram; the author of the work, the
performer of the performance, or the producer of the phonogram;
or the owner of any right in the work, performance or phonogram,
or information about the terms and conditions of the use of the
work, performance or phonogram, and any numbers or codes that
represent such information, when any of these items is attached
to a copy of the work, performance or phonogram or appears in
conjunction with the communication or making available of a work,
performance or phonogram to the public. Nothing in this section
requires the owner of any right in the work, performance or
phonogram to attach rights management information to copies of it
or to cause rights management information to appear in connection
with a communication of the work, performance or phonogram to the
public.]
-[Effective technological measure: Any technology, device or
component that, in the normal course of its operation, controls
access to a protected work, performance, phonogram, or other
subject matter, or protects any copyright or any rights related
to copyright.]
-[Work: Any original intellectual creation of an artistic,
scientific or literary nature, susceptible of disclosure or
reproduction in any form;]
-[Audiovisual work: Any creation expressed by a series of linked
images, [which give it the sensation of movement,] with or
without the incorporation of sound, [which is] intended
essentially for showing by means of projection apparatus or any
other means of communicating images and sounds, independently [of
the nature or] of the characteristics of the physical medium in
which said work is embodied;]
-[Audiovisual work: work consisting of a sequence of connected
images, with or without sound, intended for exhibition by means
of a suitable device for public communication of sound and
images;]
-[Audiovisual work: a work resulting from the fixation of images,
with or without sound, intended for creating, by means of
reproduction thereof, the impression of movement independently of
the processes used to capture it, the carrier used initially or
subsequently to fix it, as well as the means used for conveying
it;]
-[Broadcasting organization: Radio or television company that
transmits programs to the public[, and makes decisions on the
programs to be transmitted];]
-[Producer: Person, whether natural person or legal entity, who
has the initiative for, coordination of, and responsibility for
producing the work; for example, an audiovisual work or a
computer program;]
-[Producer: the natural person or legal entity who takes the
initiative to and has the responsibility for the first fixation
of the phonogram or the audiovisual work, whatever the nature of
the carrier used;]
-[Producer of a phonogram: The person, or the legal entity, under
whose initiative, coordination and responsibility, the first
fixation of the sounds of a performance or other sounds are
taken;]
-[Producer of phonograms: Natural person or legal entity who
takes the initiative and has responsibility and coordination of
the first fixation of the sounds of a performance or other
sounds, and digital representations thereof;]
-[Producer of a phonogram: a person or legal entity who through
his initiative, under his responsibility and coordination takes
the first fixation of the sounds of an interpretation,
performance or other sounds, or representation thereof;]
-[Computer programs : The expression in words, codes, plans or
any other form of a set of instructions which, on being
incorporated into an automated reading device, is capable of
making a computer, an electronic or similar device capable of
processing information to execute a specific task or produce a
specific result. Software also includes technical documentation
and users’ manuals. [The protection of computer programs includes
both operating and application software, either in source code or
object code, as well as technical documentation and users’
manuals;]]
-[Publication: Production and offering copies to the public, with
the consent of the right holder, provided that copies are offered
to the public in a reasonable quantity, bearing in mind the
nature of the work;]
-[Publication: the act of lawfully making a work available to the
public, with the author’s consent, in sufficient amounts to
satisfy reasonable needs given the nature of the work.
Representation of dramatic, dramatico-musical, or cinematographic
works, the performance of a musical work, public recital of a
literary work, transmission or broadcast of literary or artistic
works, exhibition of a work of art, or the construction of an
architectural design do not constitute publication;]
-[Publication: the offering of a literary or artistic work to the
public, with the consent of the author, or any other copyright
holder, through any form or process, in a quantity of copies that
reasonably satisfies the needs of the public;]
-[Public: Aggregation of individuals, whether or not in the same
place, that have access by any medium to a work, artistic
performance, phonogram or broadcast, regardless of whether they
do so at the same time or in different times and places;]
-[Public: any aggregation of individuals intended to be the
object of, and capable of perceiving, communications or
performances of works, regardless of whether they can do so at
the same or different times or in the same or different places,
provided that such an aggregation is larger than a family and its
immediate circle of acquaintances or is not a group comprising a
limited number of individuals having similarly close ties that
has not been formed for the principal purpose of receiving such
performances and communications of works;]
-[Public: includes for the purposes of copyright and related
rights with respect to rights of communication and performance of
works provided for under Articles 11, 11bis.(i) and 14.1.(ii) of
the Berne Convention, with respect to dramatic, dramatico-
musical, musical, literary, artistic or cinematographic works, at
least, any aggregation of individuals intended to be the object
of, and capable of perceiving, communications or the performance
of works, regardless of whether they can do so at the same or
different times or in the same or different places, provided that
such an aggregation is larger than a family and its immediate
circle of acquaintances or is not a group comprising a limited
number of individuals having similarly close ties that has not
been formed for the principal purpose of receiving such
performances and communications of works;]
-[Broadcasting: [Communication at a distance by] [The] wireless
transmission [, including via satellites,] of sounds, or images
and sounds, or representations thereof, for public reception, and
the transmission of encrypted signals, where the means of
decrypting are provided to the public by broadcasting
organizations or with their consent;]
-[Broadcasting: communication at a distance of sounds, or images
and sounds, or representations or both, via electromagnetic waves
propagated through space without artificial guidance, for the
purpose of their reception by the public;]
-[Public performance: Any representation, diffusion,
[interpretation] or performance carried out in theaters, cinemas,
concert halls, dance halls, restaurants, [social, sport or
recreation] clubs [of any nature], [shops,] commercial
establishments, industries and banks, hotels, means of transport,
stadiums, gymnasiums, amphitheaters, radio and television, and
all those carried out outside the private domicile, whether or
not for direct or indirect profit, and either with participation
by artist-interpreters or performers or through phono-mechanical
processes audiovisual or electronic.]
-[Reproduction: the realization, by any medium, of one or more
copies of a work, phonogram, or of a sound or audiovisual
fixation, either total or partial, permanent or temporary, on any
type of material base, including storage by electronic media;]
-[Reproduction: the fixation [, by any procedure,] of the work
[or intellectual production,] in a [physical support or] medium
that makes possible its communication [, including electronic
storage, as well as the] [or the] making of [one or more] copies
of a work [, directly or indirectly, temporarily or permanently,
in whole or in part,] by any means [or process] [and in any form
known or to be known].]
[Reproduction includes any act designed to accomplish, in any
manner or through any procedure, the material fixation of the
work, or to obtain copies of all or part thereof; among other
means, by printing, drawing, sound recording, photography,
modeling, or through procedures using graphic or visual arts, as
well as by mechanical, electronic, phonographic or audiovisual
recording methods.]
-[Retransmission: Relaying of a signal or of a program received
from another source, through the distribution of signs, sounds or
images by wireless means, or by wire, cable, fiber optics or
other comparable means;]
-[Retransmission: the simultaneous [or subsequent] broadcast by a
broadcasting entity of a broadcast from another broadcasting
entity;]
-[Encrypted program-carrying satellite signal: means a program-
carrying satellite signal that is transmitted in a form whereby
the aural or visual characteristics, or both, are modified or
altered for the purpose of preventing the unauthorized reception,
by persons without the authorized equipment that is designed to
eliminate the effects of such modification or alteration, of a
program carried in that signal;]
- [Ownership: The holding of rights recognized under this
Chapter;]
- [Transmission or broadcasting: the dissemination of sounds or
of sounds and images by wireless means, satellite signals, wire,
cable or other channel, optical media or any other wireless
means;]
- [Cable transmission: transmission by wire, cable, fiber optic
cable or any other analogous means for the transmission of
signals;]
- [Fair use: Use that does not interfere with the normal
exploitation of the work or [unreasonably] [unjustifiably]
prejudice the legitimate interests of the author [or the right
holder;]]
- [Personal use: Reproduction or other use of the work of another
person in a single copy, exclusively for an individual’s own
purposes, in cases such as research and personal entertainment;]
[For the purposes of this Chapter, the following definitions
apply with respect to performers and producers of phonograms:]
- [Performers: 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; ]
- [Fixation: means the embodiment of sounds, or of the
representations thereof, from which they can be perceived,
reproduced or communicated through a device;]
- [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;1]
- [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;]
-[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;]
- [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.]
Article 2. Protectable Subject Matter
[2.1. The following are not subject to copyright:
a)ideas, regulatory procedures, methods, systems, mathematical
designs or concepts per se;
b)outlines, plans or rules for conducting mental processes,
games or business,
c)blank forms to be completed with any type of information,
scientific or otherwise, and instructions thereon;
d)texts of treaties or conventions, laws, decrees, regulations,
judicial decisions, and other official records;
e)information for everyday use such as calendars, diaries,
official land registers, or diaries, and keys;
f)individual names and title;
g)industrial or commercial exploitation of the ideas in the
work]
Article 3. [Rights Conferred] [Economic Rights]
[3.1. Each Party shall grant the authors and their successors in
interest those rights enumerated in the Berne Convention in
respect of works covered, including the right to authorize or
prohibit:
a)communication of a work to the public;
b)the first public distribution of the original and each copy of
the work by sale, rental or otherwise;
c)the importation into its territory of copies of the work made
without the authorization of the right holder.]
[3.1. Each Party shall grant to the authors or other rightholders
the exclusive right to authorize, by any means, the use or
exploitation of the literary or artistic work, with such
limitations and exceptions as may be determined in national
laws.]
[3.2. The different modalities of using [literary or artistic]
works or [performers and producers of] phonograms are independent
of each other, the authorization granted by the author [,
performer] or by the producer, respectively, shall not extend to
any other uses.]
Article 4. Right of reproduction
[4.1. The author, or his successors in title where applicable,
shall have the exclusive right to carry out, authorize or
prohibit the reproduction of the work by any means or process.]
[4.1. Each Party shall provide that authors, performers and
producers of phonograms and their successors in interest have the
right to authorize or prohibit all reproductions, in any manner
or form, permanent or temporary (including temporary storage in
electronic form).]
[4.1. Each Party shall grant the authors of literary and artistic
works [and other holders of exclusive rights], the exclusive
right of authorizing the reproduction of their works by any
procedure and in any manner, including by digital means. Each
Party may determine that the right of exclusivity of reproduction
shall not be applicable when that reproduction is temporary and
merely for the purpose of making the work perceptible on
electronic media or when it is transitory or incidental, provided
that it occurs during the course of use of the work duly
authorized by the owner. It shall also be lawful to make a
single copy of computer programs for security or backup purposes.
]
Article 5. Right of distribution
[5.1. Right of distribution includes the right of authors to
authorize or prohibit the making available to the public of the
original or copies of their work through sale or other transfer
of ownership, rental or any other transfer for profit.]
[5.2. [Authors of literary and artistic works shall enjoy] [Each
Party shall provide to authors, to performers and to producers of
phonograms and to their successors in interest] [the exclusive
right of authorizing] [the making available to the public of the
original and copies of their works [and phonograms] through sale
or other transfer of ownership [of the original or of a copy of
the work with the authorization of the author].]
[5.2. Each Party shall grant authors and their successors in
interest the exclusive rights to authorize the making of the
original and copies of their works available to the public by
means of sale or other transfer of ownership, or by means of a
user’s license.]
[5.3. Nothing in this Chapter shall affect the freedom of a Party
to determine the conditions, if any, under which the exhaustion
of the rights in paragraph 5.2 applies after the fist sale or
other transfer of ownership of the original or copies of the
works with the authorization of the author. [Each Party shall
undertake to reexamine its national legislation within a period
not exceeding 5 years from the entry into force of this Chapter
to adopt, at a minimum, the principle of regional exhaustion in
regards to countries signatories to this Chapter.]]
[5.4. Each Party shall provide to authors, to performers, to
producers or phonograms and to their successors in interest the
right to authorize or prohibit the importation into each Party’s
territory of copies of the work, performance, or phonogram,
including where the imported copies were made with the
authorization of the author, performer or producer of the
phonogram or their successors in interest.]
Article 6. Right of Rental
[6.1.Authors of literary and artistic works shall enjoy the
exclusive right of authorizing the commercial rental to the
public of the originals or copies of their works.]
Article 7. [Right of Participation]
[7.1. In respect of the original works of art and original
manuscripts of writers and composers, each Party shall grant the
author –or after his death, to the persons or institutions to
which the rights are conferred under national legislation- the
unalienable right to participate in sales of the work made after
the initial transfer by the author.]
Article 8. Right of communication to the public
[8.1. The author, or his successors in title where applicable,
shall have the exclusive right to carry out, authorize or
prohibit the communication of the work to the public by any means
serving to convey the words, signs, sounds or images thereof.
Communication to the public shall be understood to mean any act
by which two or more persons, whether or not gathered together in
the same place, may have access to the work without the prior
distribution of copies to each one of them, and especially the
following:
a)stage presentations, recitals, dissertations and public
performance of dramatic, dramatico-musical, literary and
musical works, by any means or process;
b)the public projection or display of cinematographic or other
audiovisual works;
c)the transmission of any work by broadcasting or by any other
means of wireless dissemination of signs, sounds or images;
d)the concept of transmission shall likewise include the sending
of signals from a ground station to a broadcasting or
telecommunication satellite;
e)the transmission of works to the public by wire, cable, optic
fiber or other comparable means, whether free or by
subscription;
f)the retransmission, by any of the means specified in the
foregoing subparagraphs, and by a broadcasting organization
different from the original one, of the work broadcast by
radio or television;
g)the emission or transmission in or to a place accessible to
the public and by means of any appropriate apparatus, of a
work broadcast by radio or television;
h)the public display of works of art or reproductions thereof;
i)public access to computer data bases by telecommunication, by
means of telecommunication, when said data bases incorporate
or constitute protected works;
j)in general, the dissemination of signs, words, sounds or
images by any known or future process.
c) k) The making available to the public of their works,
in such a way that members of the public may access them from a
place and at a time individually chosen by them.]
[8.2. [Authors of literary and artistic works shall enjoy]
[Without prejudice to the provisions of Articles 11(1)(ii),
11bis(1)(i) and (ii), 14(1)(ii), and 14bis(1) of the Berne
Convention, each Party shall provide to authors, to performers
and to producers of phonograms and to their successors in
interest] [the exclusive right to authorize [any] [or prohibit
the] communication to the public of their works [, performances
or phonograms] by wire or wireless means, including the making
available to the public of their works [, performances and
phonograms] in such a way that members of the public may access
them from a place and at a time individually chosen by them.]]
[8.2. Each Party shall grant the authors of literary and artistic
works the exclusive right to authorize any communication of their
works to the public by wire or wireless means, including the
making available to the public of their works, such that members
of the public may access them from a place and at a time
individually chosen by them.]
[8.3. This right may be subject, in the case of performers and
producers of phonograms, to national exceptions or limitations
for traditional free over-the-air broadcasting and further, with
respect to other non-interactive transmissions, may be subject to
national limitations in certain special cases as may be set forth
in national law or regulations, provided that such limitations do
not conflict with a normal exploitation of performances or
phonograms and do not unreasonably prejudice the interests of
such rightholders.]
[8.4. The mere provision of physical facilities for enabling or
making a communication does not in itself amount to communication
to the public. [It is further understood that nothing in article
8 (Right of Communication to the Public) precludes a Party from
applying article 11 bis(2) of the Berne Convention.] ]
Article 9. Moral rights
[9.1. Moral rights shall be protected, at a minimum, pursuant to
article 6 bis of the Berne Convention.]
[9.2. National legislation of each Party may recognize other
moral rights.]
Article 10. Term of protection
[10.1. With respect to the term of protection, the provisions of
the Berne Convention shall be applicable.]
[10.1. Each Party shall provide that:
a)where the term of protection of a work (including a
photographic work), performance or phonogram is to be
calculated on the basis of the life of a natural person, the
term shall be not less than the life of the author and 70
years after the author’s death;
b)where the term of protection of a work (including a
photographic work), performance or phonogram is to be
calculated on a basis other than the life of a natural person,
the term shall be not less than 95 years from the end of the
calendar year of the first authorized publication of the work,
performance or phonogram or, failing such authorized
publication within 25 years from the creation of the work,
performance or phonogram, not less than 120 years from the end
of the calendar year of the creation of the work, performance
or phonogram.]
[10.2. The term of protection for authors of photographic works
shall be 50 years counted fromthe end of the calendar year of
their making.]
Article 11. Limitations and exceptions
[11.1. Each Party shall confine limitations or exceptions [to
Copyright] [to exclusive rights] [to copyright or related rights]
[to rights set forth in this Article] to certain special cases
that do not conflict with a normal exploitation of the work [,
performance or phonogram,] and do not unreasonably prejudice the
legitimate interests of the right holder.]
[11.2. Each Party shall apply the provisions of Article 18 of the
Berne Convention for the Protection of Literary and Artistic
Works (and Article 14.6 of the TRIPS Agreement), mutatis
mutandis, to the subject matter, rights and obligations provided
for in this Chapter.]
Article 12. [Transfer of Rights]
[12.1. Each Party shall provide that for copyright and related
rights:
a)any person acquiring or holding [any] economic rights may
freely and separately transfer such rights in any form [for
the purposes of exploitation and enjoyment by the assignee];
and,
b) any person acquiring or holding [any] such economic rights
[by virtue of a contract, including contracts of employment
underlying the creation of [any type of] works and
phonograms,] shall be able to exercise those rights in its own
name and enjoy fully the benefits derived from those rights.]
[12.2. No Party may grant translation and reproduction licenses
permitted under the Appendix to the Berne Convention where
legitimate needs in that Party’s territory for copies or
translations of the work could be met by the right holder’s
voluntary actions but for obstacles created by the Party’s
measures.]
[RELATED RIGHTS]
Article 13. Safeguard of Copyright with respect to related
rights
13.1. Protection granted under this Chapter for related rights
shall leave intact and shall in no way affect the protection of
copyright in literary and artistic works. Consequently, no
provision of this Chapter may be interpreted as prejudicing such
protection.
Article 14. [Obligations Pertaining Specifically to Related
Rights]
[14.1. Each Party shall accord the protection provided under
this Chapter to the performers and producers of phonograms who
are nationals of other Parties and to performances or phonograms
first published or fixed in a Party. A performance or phonogram
shall be considered first published in any Party in which it is
published within 30 days of its original publication.1
Each Party shall provide to performers the right to authorize or
prohibit:
a) the broadcasting and communication to the public of their
unfixed performances except where the performance is already a
broadcast performance, and
b) the fixation of their unfixed performances.
With respect to all rights of performers and producers of
phonograms, the enjoyment and exercise of these rights provided
for in this Chapter shall not be subject to any formality.]
Article 15. Rights of Performers
[15.1 Each Party shall grant performers [the rights established
in the Rome Convention, including] the right to authorize or
prohibit [the following acts when undertaken without their
authorization]:
a)the fixation of their [unfixed] performances;
b)the reproduction [and public performance] of their fixed
performances;
c)the communication to the public, broadcast* [and rebroadcast]
by wireless means of their [fixed or unfixed] [live]
performances;
[d) the making available to the public of their performances
in such a way that any person may access them from a place and
a time individually chosen by them;]
[e) any other form of use of their performances.]
[The provisions of Article 14.6 of the TRIPS Agreement shall also
apply, mutatis mutandis, to the rights of performers and
producers of phonograms in phonograms.]
[Paragraph 15.1 shall not apply once a performer has consented
that his performance be incorporated into a visual or audiovisual
fixation.]
[15.1. Economic Rights of Performers in their Unfixed
Performances
Performers shall enjoy the exclusive right of authorizing, as
regards their performances:
a)the broadcasting and communication to the public of their
unfixed performances, except where the performance is already
a broadcast performance; and
b)the fixation of their unfixed performances.
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.
Right of Distribution
a)Performers shall enjoy the exclusive right of authorizing the
making available to the public of the original and copies of
their fixed performances, through sale and other transfer of
ownership.
b)Nothing in this Chapter shall affect the freedom of each Party
to determine the conditions, if any, under which the
exhaustion of the right in paragraph a) 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.
Right of Rental
a) Performers shall enjoy the exclusive right of authorizing
the commercial rental to the public of the original and copies
of their fixed performances, as determined in the national law of
each Party, even after distribution of them by, or pursuant
to, authorization by the performer.
b) Notwithstanding the provisions of paragraph (a), a Party
that, at the time of entry into force of the Agreement,
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.
Right of Making Available of Fixed Performances
Performers shall enjoy the exclusive right of authorizing the
making available to the public of their fixed performances, 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.]
[15.2. Moral Rights
a)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.
b)The rights granted to a performer in accordance with paragraph
15.2.1 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 Party where protection is claimed. However, the Party
whose legislation, at the moment of [their]its ratification of
or accession to this Agreement, does not provide for
protection after the death of the performer of all rights set
out in paragraph 15.2.1 may provide that some of these rights
will, after his death, cease to be maintained.]
[15.2. Performers have the moral rights of integrity and
authorship of their performances, even after the transfer of the
economic rights. Each Party may authorize in their domestic
legislation the reduction, compacting, editing or dubbing of the
work under the responsibility of the producer, who shall not
distort the artist’s performance.]
Article 16. Rights of Producers of Phonograms
[16.1. Each Party shall grant producers of phonograms [and to all
other right holders of phonograms] [, as determined in their
legislation,] the [exclusive] right to authorize or prohibit:
a)the direct or indirect [, total or partial reproduction] of
their phonograms;
b)the [first public] distribution of the original and [each
copy] [copies] of the phonogram by sale [or transfer of
ownership], [loan] [or otherwise];
[c) the importation [into its territory of copies of
phonograms made without the authorization of the producer];]
[d) the making available to the public of their phonograms in
such a way that any person may access them from a place and a
time individually chosen by them; ]
[e) the [commercial] rental of the original or of a copy
of the [protected] phonograms, except where expressly
otherwise provided in a contract between the producer of the
phonogram and the authors of the works therein.]
[e) the provisions of Article 6 in respect of computer
programs shall apply mutatis mutandis to producers of
phonograms and any other right holders in phonograms as
determined in a Party’s law.]
[[Nevertheless,] if upon entry into force of this Agreement, a
Party applies an equitable remuneration system of right
holders as to the lease of phonograms, the Party may maintain
such system, provided that such lease is not causing serious
injury to the exclusive rights of reproduction of said right
holders.]
[f) any other form of using their phonograms.]
[16.1. Producers of phonograms shall have the exclusive right
to:
a) authorize or prohibit the reproduction of their phonograms.
Importation and distribution of phonograms shall be permitted,
provided that they are legitimate.
b) Producers of phonograms shall have the right to receive
compensation for transmission of the phonogram to the public.]
[16.1. 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.
Right of Distribution
a)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.
b)Nothing in this Chapter shall affect the freedom of each Party
to determine the conditions, if any, under which the
exhaustion of the right in paragraph (a) 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.
Right of Rental
a)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.
b)Notwithstanding the provisions of paragraph (a), a Party that,
on xx, 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.
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.
Right to Remuneration for Broadcasting and Communication to the
Public
a)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.
b)Each Party 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. Each Party 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.
c)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.]
[16.2. Each Party shall provide that putting the original or of a
copy of a phonogram on the market with the right holder’s
consent, shall not exhaust the rental right.]
Article 17. Rights of Broadcasting Organizations
[17.1 Each Party shall grant to broadcasting organizations the
[exclusive] right to authorize or prohibit [the following acts
when undertaken without their authorization]:
a) the fixation of their broadcasts [on a physical medium];
b) the reproduction of the fixation of their broadcasts
[without their consent, except:
i) When this is for private use
ii) When short fragments have been used for the
purpose of reporting on current events;
iii) When it is a short-lived fixation made by a
broadcasting organizations itself for its own broadcasts; and,
iv) When it is to be used exclusively for teaching or
research purposes.]
c) the rebroadcasting, [ and the [subsequent] distribution by
cable, optic fiber or any other means] [or process] [by
wireless means] of their broadcast;
[d) the communication to the public of their television
broadcasts [if such communication is made in places accessible
to the public against payment of an entrance fee] [, without
prejudice to the rights of the owners of intellectual property
included in the programming];]
[e) the reception, in relation to commercial activities, of
their broadcasts;]
[Where a Party does not grant such rights to broadcasting
organizations, they shall provide owners of copyright in the
subject matter of broadcasts with the possibility of preventing
the above acts, subject to the provisions of TRIPS Article 14.3.]
[The broadcast referred to in Article 17.1 shall include the
production of program-carrying signals intended for a
broadcasting or telecommunication satellite, and also
distribution to the public by a body that broadcasts or
disseminates the transmissions of others received by means of
such a satellite.]]
[17.1. Each Party shall provide for protection for broadcasting
organizations as determined by the relevant international
instrument.]
Article 18. Term of Protection
[18.1. a) The term of protection to be granted to performers
under this Chapter shall last, at least, until the end of a
period of 50 years counted from the end of the year in which
the performance was fixed.
b) The term of protection to be granted to producers of
phonograms under this Chapter shall last, at least, until the
end of a period of 50 years counted 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.
c) The term of protection to be granted to broadcasting
organizations shall last, at least, 50 years counted from the
end of the year in which the broadcast took place.]
Article 19. [Limitations and exceptions to related rights]
[19.1. Each Party may provide in their national legislation for
the same kinds of limitations or exceptions with regard to the
protection of performers, producers of phonograms and
broadcasting organizations as they provide for, in their national
legislation, in connection with the protection of copyright in
literary and artistic works. Each Party shall confine any
limitations of or exceptions to rights provided for in this
Chapter 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 or of broadcasting
organizations.]
Article 20. Protection of program-carrying satellite signals
[20.1. Within one year from the date of entry into force of this
Agreement, each Party shall make it:
a) a criminal offense to manufacture, import, sell, lease or
any other commercial act that makes available a device or system
that is primarily of assistance in decoding an encrypted program
carrying satellite signal without the authorization of the lawful
distributor of such signal; and
b) a civil offense to receive, in connection with commercial
activities, or further distribute, an encrypted program carrying
satellite signal that has been decoded without the authorization
of the lawful distributor of the signal or to engage in any
activity prohibited under subparagraph 20.1.a.
Each Party shall provide that any civil offense established under
subparagraph b of paragraph 20.1, shall be actionable by any
person that holds an interest in the content of such signal.]
[20.1. Each Party shall consider, as a civil offense, jointly or
not with a criminal offense, and in conformity with their
national legislation, the manufacture, importation, sale, renting
or leasing or any other activity that permits the use of a device
or system that is primarily of assistance in decoding an
encrypted program carrying satellite signal without the
authorization of the lawful distributor of that signal.]
[20.1. Each Party shall make it:
a) a criminal offense to manufacture, assemble, modify, import,
export, sell, lease or otherwise distribute a tangible or
intangible device or system, knowing or having reason to know
that the device or system is primarily of assistance in decoding
an encrypted program-carrying satellite signal without the
authorization of the lawful distributor of such signal;
b) a criminal offense willfully to receive or further
distribute an encrypted program- carrying satellite signal that
has been decoded without the authorization of the lawful
distributor of the signal; and
c) a civil offense to engage in any activity prohibited under
paragraph 20.1.a or 20.1.b.
Each Party shall provide that any civil offense established under
paragraph 20.1.c shall be actionable by any person that holds an
interest in the encrypted programming signal or the content
thereof.]
Article 21. [Obligations concerning technological measures]
[21.1. Each Party shall provide adequate legal protection and
effective legal remedies against the circumvention of effective
technological measures that are used by authors, performers,
producers of phonograms, or broadcasting organizations in
connection with the exercise of their rights under this Agreement
or the Berne Convention 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. ]
[21.1. In order to provide adequate legal protection and
effective legal remedies against the circumvention of effective
technological measures that are used by authors, by performers,
by producers of phonograms and their successors in interest in
connection with the exercise of their rights and that restrict
unauthorized acts in respect of their works, performances and
phonograms, each Party shall provide that any person who
a)knowingly, or having reasonable grounds to know, circumvents
without authority any effective technological measure; or
b)manufactures, imports, distributes, offers to the public,
provides or otherwise traffics in devices, products or
components or offers to the public or provides services,
which:
i) are promoted, advertised or marketed for the purpose of
circumvention of any effective technological measure, or
ii) have only a limited commercially significant purpose or use
other than to circumvent any effective technological measure, or
iii) are primarily designed, produced, adapted or performed for
the purpose of enabling or facilitating the circumvention of any
effective technological measure; shall be guilty of an offense,
and shall be liable, upon the suit of any injured party, to
relief by way of damages, injunction, accounts or otherwise.
a)The prohibition referred to in Article 21.1.b prohibits
circumvention of technological measures and does not require
an affirmative response to such measures. This Article does
not require that the design of, or the design and selection of
parts and components for, a consumer electronics,
telecommunications or computing product provide for a response
to any particular technological measure. This does not provide
a defense to a claim of violation of Article 21.1.b.
b)Each Party shall provide that a violation of the law
implementing the provisions of this Article is independent of
any infringement that might occur under the Party’s law on
copyright and related rights.]
Article 22. [Obligations concerning rights management
information]
[22.1. In order to provide adequate and effective legal remedies
to protect rights management information
a) each Party shall provide that any person who without
authority, and knowingly, or, with respect to civil remedies,
having reasonable grounds to know, that it will induce, enable,
facilitate, or conceal an infringement of any copyright or
related right,
i) knowingly removes or alters any rights management
information;
ii) distributes or imports for distribution rights management
information knowing that the rights management information has
been removed or altered without authority; or
iii) distributes, imports for distribution, broadcasts,
communicates or makes available to the public copies of works or
phonograms, knowing that rights management information has been
removed or altered without authority, shall be guilty of an
offense, and shall be liable, upon the suit of any injured party,
to relief by way of damages, injunction, accounts or otherwise.]
Article 23. [Collective Administration of Rights]
[23.1. Each Party shall facilitate and encourage collective
administration of the rights enshrined in this Chapter,
recognizing the legitimacy of societies formed for this purpose
to exercise such rights, under the terms of their own statutes,
and enforce them in administrative and judicial proceedings,
without presenting any legal title other than those statutes.
There shall be a presumption, in the absence of evidence to the
contrary, that the rights so exercised have been directly or
indirectly entrusted to them by their respective owners. Each
Party shall establish measures to guarantee that societies are
obliged to administer the rights that their owners entrust them
with. The decisions and actions of societies for the collective
administration of rights shall be guided by transparency and due
participation of their respective members. Societies for the
collective administration of rights shall be subject to
inspection and supervision by the State.]
[Article 24. Government use of Computer Programs]
[24.1. Each Party shall issue appropriate administrative or
executive decrees, laws, orders or regulations mandating that all
government agencies use only computer programs authorized for
intended use. Such instruments shall actively regulate the
acquisition and management of software for such government use.]
[SECTION 4. PROTECTION OF [EXPRESSIONS OF] FOLKLORE]
[Article 1. Protection of [Expressions of] Folklore]
[1.1. Each Party shall ensure effective protection of all
expressions of folklore and artistic expressions, of the
traditional and folk culture.]
[1.1. Each Party shall ensure effective protection of all
expressions of folklore, particularly those forms that are the
product of the traditional and folk culture of indigenous people
and communities, Afro-American and local communities.]
[1.1. Each Party shall protect traditional and popular culture
manifested in any kind of folklore expression and production, as
well as creations of popular art or craftwork.]
[1.2. Each Party shall provide that any fixation, representation
or publication, communication or use in any form of a literary,
artistic, folk art or craft work, shall identify the community or
ethnic group to which it belongs.]
_______________________________
1 It is understood that the definition of phonogram provided
herein does not suggest that rights in the phonogram are in any
way affected through their incorporation into a cinematographic
or other audiovisual work.
1 For the application of Article 14, it is understood that
fixation means the finalization of the master tape.
--
------
James Love, Consumer Project on Technology
http://www.cptech.org, mailto:love@cptech.org
voice: 1.202.387.8030; mobile 1.202.361.3040
--
------
James Love, Consumer Project on Technology
http://www.cptech.org, mailto:love@cptech.org
voice: 1.202.387.8030; mobile 1.202.361.3040