International Legal Regime for the

Protection of Copyright-Related Rights

1. International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961 (known as Rome Convention)

2. Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms, 1971 (signed at Geneva and known as Phonograms Convention)

3. WIPO Performances and Phonograms Treaty, 1996 (signed at Geneva and referred to as WPPT)

The concept of related rights is quite amorphous and inherently requires a balancing of competing interests. The diversity in the content and approach of regulating related rights could be partly gauged from the fact that the negotiations for the Rome Convention took more than 13 years to fruition and it was led by the efforts of institutions like the International Labour Organization (ILO), the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the United International Bureau for the Protection of Intellectual Property (this was the precursor to the World Intellectual Property Organization - WIPO).

The following are a few more of the salient features that we began to discuss in the last part:

1. Nature and Content of Related Rights:

   1. Article 7 of the Rome Convention stipulates the framework of minimum protection for the performers as well as regulates the all important relationship between the performers and the Broadcasting Organizations. One of the leading issues of debate when this provision was being negotiated was whether the regulation of the relationship between a performer and a broadcasting organization needs to remain in the realm of general contracts or whether it would need to be regulated specifically. It had been decided by then that the issue was to be dealt by the domestic law of a country. After much deliberation, the Rome Convention makes it emphatically clear that the domestic law of a country shall not operate in such a manner so as to “deprive performers of the ability to control, by contract, their relations with the broadcasting organizations.” The principle of free contractual arrangements has been given utmost importance. It is another feature which shows that related rights are so difficult to capture in a legal sense.

   2. The WPPT, keeping the developing ethos of IPRs in the forefront, has guaranteed moral rights to the performers. It is independent of the economic rights, which means that a performer shall continue to retain the moral rights over his/her performance even after selling the right to exploit the performance for commercial benefits. Moral rights have the nature of continuing in existence even after the death of the performer and may be exercised by legally authorized person(s) or institution(s).

   3. The Rome Convention provides each Member Country the autonomy to extend the protection of related rights to, and include, various kinds of artists who do not perform artistic or literary works per se. This is an enabling feature so as to not exclude exponents of certain exotic arts and forms, like circus artists. It may also be pertinent to note that the countries are at complete freedom to extend and enlarge the scope of protection provided for related rights through bilateral and multilateral arrangements amongst two or more countries. Such benefits need not be extended to all the other parties of the Convention.

   4. By guaranteeing a minimum duration of protection of 20 years, the Rome Convention has settled the twin issues of contention that dominated its negotiating history. One was the question of the starting point of the term of protection and the second was regarding the duration. Considering the varying proposals by different nations, it was finally decided that the minimum duration would be for 20 years and that the term shall begin at the time of fixation, with respect to phonograms and for performances fixed in phonograms, while the date of broadcast is the starting point for the protection of broadcasting organization related rights. The Phonograms Convention also follows the same approach. The WPPT, using the minimum standard of the Rome Convention, has stipulated a period of 50 years as the duration of protection.

2. Equitable bases of economic rights – The performers and the producers of phonograms enjoy a variety of exclusive economic rights – like that of the right of reproduction of the protected work; right of distribution; right of rental; and right of access to the fixed performances and available phonograms. The WPPT has further stated that the performers and the producers of phonograms shall enjoy a right to a single equitable remuneration as against the commercial use of the protected phonograms by a broadcasting organization. Towards enabling a balanced, just, fair and equitable framework of economic rights, the WPPT provides that “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 (includes even wireless access provided to the public on commercial basis).”

3. Limitations on Related Rights – The strength of a right depends on the nature of exceptions to that right, as are permitted by the law. In this regard, the Rome Convention has adopted a mid-path between two extremes – one of complete autonomy to the domestic laws of a country; and the other of comprehensive listing of exceptions in the Convention itself. Both approaches would have led to numerous controversies and consequent ambiguities. The Convention now states that the domestic law shall provide for the exceptions, while at the same time laying down certain basic parameters to guide the same. The major bases of Convention guidelines are similar to those of the other International Conventions related to IPRs – private use; use of short excerpts in reporting current events; use for solely the purposes of teaching and scientific research; ephemeral fixation by a broadcasting organization by its own facilities and for its own broadcasts; and the domestic law may also stipulate the very same limitations that a copyright is subjected to in that country. While this application of the Copyright limitations is discretionary to the country’s domestic law, the Phonograms Convention makes it clear that they shall in “no way be interpreted to limit or prejudice the protection otherwise secured to authors, to performers, to producers of phonograms or to broadcasting organizations under any domestic law or international agreement.” The WPPT further mandates that the fair use conditions applicable to copyrights should also be available against performances and phonograms usage as well. This confirms that the fair use conditions that are available to copyrights in a country could also be applied against the use of related rights pertaining to performances and phonograms.

This part concludes the discussion on certain special features of the international regime governing the recognition and enforcement of copyrights and its related rights. The next part shall take us further into the realm of IPRs, but of a different kind.