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 previous part of this series dealt with the protection of Copyrights and the consequent guarantee of author’s rights. With the advent of technology, development of diverse forms of culture and the resourceful expertise of fine art exponents, there has been a very significant need felt to protect and promote even such rights that are closely associated to copyrights. These rights, which are collectively termed as either “related rights” or as “neighbouring rights”, mainly consist of rights of performers, rights of producers of phonograms, rights of broadcasting organizations and even rights in a database or a photograph as well. It must be admitted at the outset that there is no exhaustive definition of the term “related rights”.

Given the breadth of coverage and the amorphous definition of such rights, the three Conventions named above presently govern the international regime in this regard. India has ratified the Phonograms Convention and is only a signatory to the Rome Convention. The WPPT has not yet been considered by India.

It must be noted that the chronological development of the above three international instruments have been carefully calibrated to ensure that there is no overlap in their working. The WPPT is clear in its objective – without derogating from the basic principles as established by the Rome Convention, to clarify and supplement the provisions with towards achieving uniformity and harmony in the international understanding of the regime. Most countries that are parties to the Rome Convention have also accepted the WPPT.

From an understanding of the collective legal regime that is prevalent in the arena of related rights, the following could be termed as certain salient features that we need to consider:

1. Basic definitions – The Rome Convention made a significant beginning by defining the various terms that are associated with the concept of “related rights”. Owing to a protracted debate on what could constitute “performance” for it to be granted an intellectual property right protection, the Rome Convention strategically decided to define the term “performers” instead. “Performers” is defined inclusively to refer to actors, singers, musicians, dancers, and even other persons who act, sing, deliver or otherwise perform literary or artistic works. It is interesting to note the enriching development of this definition from the Rome Convention to the WPPT. In the latter, the term “performers” includes even those who are involved in expressions of folklore. Traditional folklore and traditional knowledge is an area of contemporary concern for the WIPO and a framework is being currently negotiated.

The term “fixation”, though employed in the Rome Convention, was not defined till the WPPT provided for it. Considering the wide expanse of technological reach that prevails today, it has become necessary to agree upon an understanding that is uniform throughout the world. “Fixation” has now been defined to mean “the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device.”

2. Extension of National Treatment – The Rome Convention has founded the obligation on all member countries to extend and accord national laws to the performances or phonograms or broadcast undertaken in any of the other member countries. Considering the nature of rights being governed, the essential element of territoriality of IPR laws is diluted with an intent to provide wider protection. Furthermore, to address an elaborate set of possible circumstances, the Rome Convention also extends the national treatment clause based on the criteria of – nationality, fixation and publication (including “simultaneous publications” a concept wherein the publication in a non-member country shall be overlooked if its subsequently published in a member country within a span of 30 days). Given the complex nature of these provisions in the Rome Convention, they were drafted after a lot of debates. Even though national treatment was agreed upon, the countries had a doubt as to whether it also inevitably meant a guarantee of minimum level of treatment. One of the contentious issues then was that such measures that were over and above the obligations of the Convention could be accorded to other nationals only on a reciprocal basis. It would suffice to say that these discussions resulted in the incorporation of a separate clause in the Convention to the effect that – “National treatment shall be subject to the protection specifically guaranteed, and the limitations specifically provided for, in this Convention.” This has now guaranteed a cooperative framework of understanding on a reciprocal basis among all the member nations.

It is relevant to note that the WPPT sustains this elaborate extension of national treatment and provides furthermore that for the purposes of eligibility for national treatment within the WPPT, the member nations of Rome Convention shall also be considered.  

With this introduction, it is now evident as to why these related rights have always been a matter of contention in the development of the international regime on IPRs. There are more significant and detailed features, such as – the nature and content of the related rights, equitable bases of economic rights and the all important limitations on the related rights – that shall be examined in the next part of the series.