Sec. B Copynicurs axp Neicnnorine Ricits 93 B. FOREIGN NATIONALS ACQUIRING COPYRIGHTS AND NEIGHBORING RIGHTS 1. POINTS OF ATTACHMENT AND NATIONAL TREATMENT FOR COPYRIGHT Imagine you are an author in the U.S. and have just finished writing a novel, although it remains unpublished. After consulting U.S. copyright law, you learn that you are automatically entitled to a U.S. copyright in your work as soon as you have fixed it in a tangible medium, such as by storing it on your computer's hard drive. There is no administrative prerequisite to your receipt of the U.S. copyright (although enforcement of a US. work ultimately’ requires registration of the copyright, 17 U.S.C. § 411, a requirement that is exempted for foreign works as discussed in the next section). You wonder, though: how do I receive copyrights in other countries? The short answer is that you automatically receive copyrights from all countries in the Berne Convention and the WTO by virtue of being a U.S. national. To understand why, we must examine the interrelationship between points of attachment and national treatment under Berne. Points of attachment. Articles 3 and 4 of the Berne Convention deal with the fundamental issue of when authors and their works qualify for the protection in countries of the Berne Convention. All of the contracting states to the Berne Convention form a Union, commonly called the Berne Union or simply the Union. An author is entitled to the protection of the Berne Convention when a “point of attachment” (also called a connecting factor) exists. The basic concept behind a point of attachment is that the author and/or the work must have some connection with a contracting state to the Berne Convention in order to trigger Berne protection. This connection or nexus is commonly referred to as a “point of attachment,” although that term is not expressly adopted by Berne itself. Carefully read Articles 3 and 4 below. Berne Convention (Paris, 1971) Article 3 (1) The protection of this Convention shall apply to: (a) authors who are nationals of one of the countries of the Union, for their works, whether published or not; (b) authors who are not nationals of one of the countries of the Union, for their works first published in one of those countries, or simultaneously in a country outside the Union and in a country of the Union. (2) Authors who are not nationals of one of the countries of the Union but who have their habitual residence in one of them shall, for Scanned with CamScannerCu. 2 the purposes of this Convention, be assimilated to nationals of that country. | ; (3) The expression “published work” cea publi rh se heir authors, whatever may be the means nufac. tare u th epi, ped thatthe vey of sch one ha been such as to satisfy the reasonable requirements pul i having regard to the nature of the St ae Oa ee “e dramatic, dramatico-musical, cinematographic or m . public recat of a literary work, the communication by fire or the | broadcasting of literary or artistic works, the exhibition of a work of) art and the construction of a work of architecture shall not constitute publication, , ; (4) A work shall be considered as having been published simulta- neously in several countries if it has been published in two or more countries witlfin thirty days of its first publication. ‘he protection of this Convention shall apply, even if the conditions of Article 3 are not fulfilled, to: (a) authors of cinematographic works the maker of which has his headquarters or habitual residence in one of the countries of the Union; (b) authors of works of architecture, erected in a country of the Union or of other artistic works incorporated in a building or other structure located in a country of the Union, As should be evident, the Berne Convention divides authors who are entitled to protection under the Convention into two categories: (i) nation- als of a Berne country and (ii) others who are not nationals of a Berne country. Different points of attachment are created for each, Under Article 3(1)(a), nationals of Berne countries establish a point of attach- ment for their works, whether published or unpublished, immediately upon creation of the work. In other words, a point of attachment for Berne nationals is established by virtue of being a Berne national and creating a work. However, for non-Berne nationals, a point of attachment can only be established if: (i) the author publishes a work in a Borne country first or “simultaneously” (within 30 days) of publishing it in a non Berne country (publication criterion); or (ii) the author becomes a habitual resident of a Berne country, in which case the author is to be treated in the same way as a Berne national (habitual residence Because the TRIPS Agreement Article 9 incorporates these provisions of Berne, the obligations have effectively heen extended to. Il WTO countries (a handful of which are not members alse 4 Sc this incorporation of Berne, nationals of WTO coun of attachment by virtue of their nationality from a Wr who are nationals in the relatively few countries that either Berne or the WTO can establish q Point of att; iterion). f Berne), Because of ‘achment under Berne Scanned with CamScannersec. B__Copynicurs ANp Netannonine Riowrs 95 in the same way as any other national of a non-Union country: first or simultaneous publication in a Berne country, or habitual residence in a Berne country. Let us now consider a basic problem in identifying points of attach- ment under Berne. As you analyze the problem, keep in mind whether the author is treated as a national or non-national of a Berne country and the keys for each to establish a point of attachment. Pronism 2-2 __ In which of the following situations is the author entitled to the protec- tion of the Berne Convention, i.e,, when does a point of attachment under the Berne Convention exist? (a) Al, a national of a Berne Union country, writes a novel in secret showing it to no one. (b) Bob, a national of a non-Union country, writes a novel in a non-Union country and first publishes the novel in a Union country. (c) Cris, a national of a non-Union country, lives in a Union country and writes a novel there, but first publishes the novel in a non-Union country. (a) David, a national of a Union country, lives in a non-Union country, and writes and publishes a novel in the non-Union country. ‘Supplementary points for cinematographic and architectural works. Arti- cle 4 provides two other points of attachment. Under Article 4, even if the conditions of Article 3 are not satisfied—the author is not a national of a Union country, does not habitually reside in a Union country, or has not first published the work in a Union country—the author is nevertheless entitled to Berne protection for certain cinematographic and architectural works. In the case of cinematographic works, the author or maker of the film can establish a point of attachment based on having its headquarters or habitual residence in a Berne country—regardless of whether the author can satisfy the conditions of Article 3. ‘This provision effectively avoids any question about the nationali- ty of a film production company that might be raised under Article 3, For architectural works, an author from a non-Union country (who does not habitually reside in a Union country) can receive protection for an architec~ tural work if it is erected in a Union country. The erection or incorporation of the work in a Union country establishes a lasting connection with the Union country, ‘A point of attachment under Berne does not, in itself, create any copyright. Although Berne obligates countries to provide copyright protection (with certain minimum standards of rights) based on those points of attach- ment, the principle of territoriality meuns that each country’s laws create copyright protection. Analysis of the type of protection given to works of the author in Union countries is not complete until one consults the laws of each country where copyright protection is sought. Suppose, for example, that a US. author seeks protection for its work in Germany, another Union mem- Scanned with CamScanner96 Copymianr ann Netcom icing ber. A complete analysis of the rights afforded to the work of the U.S, AUthop in Germany will depend on German law and the extent to which Germany hag met or exceeded the minimum standards of the Berne Convention. OF couryg a country is free to decide that the terms of the Berne Convention are ggjg! executing, or otherwise establish substantive rights that are enforceable jg that country based on the treaty itself without the need of any implementing legislation. National treatment, So what. is the benefit of establishing a point of and their works are entitled ty attachment? Under Article 5, eligible authors 4 national treatment in all other Union countrie 's under Article 3, the effect of Article 6 is that the work is now entitled to country of the Union under the principle of 8, Once a point of attachment copyright protection in every national treatment. Article 5(1) of Berne states: Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention. The combined effect of Articles 3 and 6 is that a work entitled to protection under the Berne Convention (through a point of attachment) gives its author the right to a copyright under the domestic law in every country of the Union. Assuming all Berne members have faithfully implemented the requirements of Berne in their copyright laws, an author who is a national of a Berne Union country and who has created a work (whether published or not) automatically obtains a copyright for that work throughout the entire Berne Union under the respective laws of each country of the Union. This is a significant benefit to authors in Union countries as it assures widespread and automatic protection for all of their eligible works. Consider the following examples: Illustration 2-1. Alfred is the author of a work whose country of origin is Country Z, which is not a Berne Union country. Alfred first publishes his work in Country Z. In the absence of obligations created by treaty or other legally effective means, the rights granted to Alfred under the copyright law of Country Z are limited by the principle of territoriality to Country Z. Other countries are not obligated to extend Alfred copyright protection. Illustration 2-2. Under the same facts as contained in Illustration 2-1, but Country Z is now a contracting state to the Berne Convention, Under Article 3, Alfred's nationality establishes a point of attachment. Under the principle of national treatment as set forth in Article 5(1) and assuming all Berne countries have adequately implemented Berne it their own copyright laws, Alfred would automatically receive a copyright under the domestic copyright law of every other country in Berne. For example, in the United States, Alfred has a U.S. copyright under US: Jaw; in Germany, Alfred has a German copyright und rman law; and in Japan, Alfred has u Japanese copyright under Japanese law and 5° forth for each Berne Union country, Once a point of attachment exists, the effect of the principle of national treatment under Article 5(1) is that Scanned with CamScanner |Sec. B Copynicurts ayo Netcimonie Rictrs 97 acl ta far : national copyrights consisting of copyrights respects depentify y. Bach copyright, however, may vary in some NE Upon the Inw of the contracting state to the Union. As should be evident, the concept of a point of attachment is closely) related to the principle of national treatment. Once n point of attachment for a foreign author is established under Berne, a country within Berne must offer national treatment to the foreign national. One way to think of the relationship between points of attachment. and national Lreatment is to liken a Berne country to a house, ‘The country’s territorial borders are akin to the house's exterior. Foreign authors are not allowed into the house (to get copyright protection), unless the foreign authors have a key (or a point of attachment) to the house. Thus, the “keys” for a foreign national to get copyright protection within Berne countries are contained in the points of attachment. Nationals of Berne Union countries. To build on our analogy, one way to understand a point of attachment is that Berne nationals have a key to the front doors of all the houses (countries) within Berne (for copyright protec- tion). By virtue of their nationality, Union authors are automatically entitled to Berne protection for their works—both published and unpublished—as soon as the work has been created. Berne Conv. art. 3(1)(a). In other words, for Union authors, their nationality suffices for all purposes. A U.S. national, for example, is entitled to prohibit the unauthorized copying of its work in Germany, another Union country, regardless of whether the work has been published in the United States, another Union country, a non-Union country, or not published at all. Nationals from non-Berne countries who habitually reside in a Berne country can also invoke this same treatment. Under Article 3(2), authors who are not nationals of one of the countries of the Union but who have their habitual residence there are “assimilated to nationals of that country,” i.e., given the same treatment as an author of the Union country. ‘An author from a non-Union country who lives in the United States, for example, is treated as a national of the United States under Berne. Others in non-Berne Union country. Apart from habitual residence ina Berne country, the only other way for non-Union authors to establish a point of attachment is to first publish the work in a Union country or simultaneous- ly publish it in a Union and in a non-Union country. Simultaneous publication ig defined as publication in two or more countries within thirty days of its first publication. Berne Conv. art. 3(4). Unlike a Union author, a non-Union author who does not habitually reside in a Berne country cannot claim, the protection of the Berne Convention for an unpublished work. If a non-Union author wishes to establish a point of attachment under Berne, the author must first or simultaneously publish the work in a Union country. This is known us the “backdoor to Berne.” ‘This provision enabled U.S. authors before the U.S.'s entry into Berne in 1989 to claim copyright protection in Berne countries based on first publication of their works in a Berne country, or simultaneous publication of their works in a Berne country and the USS. It was a simple matter, for example, for U.S, authors to simultaneously publish their works in the United States and Canada and enjoy the protection of the Berne Convention, ‘To return to our analogy, a non-Union author ean utilize the “backdoor to Berne” by using the “key” of first or simultaneously Scanned with CamScanner100 Copyrianr anp NEI BERNE PROHIBITION ON FORMALITIES Promam 2-6 -y %, 0 Union country. She has published a tain copyright protection in Country X, ‘all domestic authors must punt Amanda is an author in novel Country Z, Amanda wishes (0 0 also a Union country, Under X's Inws, howevei first file their copyrights in a national registry and pay a small fee, Amanda does not register the work in Country X, however. Country X refuses Amanda copyright protection because of her failure to register. Country X maintains that it is not discriminating against Amanda because X has a long record of denying copyright to its own nationals who fail to register their published works. (i) Under Berne, should Amanda be entitled to receive a copyright in Country X? Is Country X in compliance with Berne? (ii) What about X's own authors who fail to register? Is X in violation of Berne by imposing registra tion requirements on its own domestic authors? Consider the following provision of Berne and discussion, Berrfé Convention (Paris 1971) ticle 5 (1) Authors shall enjoy, in respect of works for which they are protected under-this-Convention, in countries of the Union other than the country _ of origin, the rights which their respective laws do now or may hereafter ~~ grant to their nationals, as well as the rights specially granted by this Convention. (2) The enjoyment and the exercise of these rights shall not be subject to | any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Conse- quently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shalll be governed exclusively by the laws of the country where protection is claimed, ) Protection in the country of origin is governed by domestic law. lowever, when the author is not a national of the country of origin of the ork for which he is protected under this Convention, he shall enjoy in hat country the same rights as national authors, - : (4) The countzy of origin shall be considered to be (a) in the case of works first published in a country of the Union, that _country; in the case of works published simultaneously in several countries of the Union which grant different terms of protec- tion, the country whose legislation grants the shortest term of protection; ~ ~ (b) in the case of works published simult it , ; aneousl; sountry outside the Union and in a country of the Union, the latter count (c) in the case of unpublished works or of works ished i : fan a first published in * country outside the Union, without simultaneous publication in ® Scanned with CamScannery sec. B Coryricuts ap Nena 101 country of the Union, t a national, provided th G@) when these are cine he country of the Union of which the author is_ matographic works the maker of which has his headquarters or his habitual residence in a country of the Union, the country of origin shall be that country, and Gi) when these are works of architecture erected in a country of the Union or other arti tic works incorporated in a building or other structure located in a country of the Union, tl ntry of origin shall be that country, a wae _Article 6(2) of Berne bars countries from imposing formalities on foreign nationals of Berne countries for their foreign works, stating: “The enjoyment and exercise of these rights shall not be subject to any formality.” Formalities are procedural or administrative requirements that are imposed as a precondi- tion to the exercise or enjoyment of a copyright. For example, under the Berne Convention, the U.S. cannot require Arthur, a foreign national from Germany who has published a work there, to file or register its copyright with the US. Copyright Office as a condition of obtaining U.S. copyright protection. Berne’s prohibition on formalities applies to “these rights” regulated by Article 5(1)—meaning copyrights for nationals of Berne countries “‘in respect of works for which they are protected under this Converition, in countries of the Union other than the country of origin.” Therefore, the key to determining whether formalities can or cannot be imposed under Berne is identifying the, country of origin, as defined in Article 5(4). The country of origin can impose formalities on works originating there. But other countries within Berne that || are not thé country of origin for the work in question cannot impose | formalities on the work. 7 Thus, a country in Berne can impose formalities on works of its own nationals if the domestic country-is the “country of origin’” of the work. For, example, the United Kingdom, a Union country, can impose formalities on its own nationals for the works they produce or first publish within the country, so long as the formalities do not apply to foreign authors and their foreign works, Most Berne Union countries, however, do not wish to disadvantage their own authors, so they have abolished formalities for both foreign and domestic authors in the acquisition of copyrights. The U.S. is an exception, however, in requiring the registration of copyright for U.S. works before a copyright infringement suit can be commenced, 17 U.S.C. s all. ; ‘A Berne country can also impose formalities on foreign authors if that country is the country of origin. Remember the key for Article 6(2) is not the distinction between nationals and forsimneee bien oe elation 3 of origin of the work and other countries. For example, if a tg ational Boe France first publishes in the U.S., the U.S. is the country of origin. Under Berne, the foreign national can be subject to a formality requirement just as any U.S. national would be for publishing first in the U.S., which then is the country of origin. See Berne sa art, ane. ‘The ii i rohibition against formalities in the acquisition o Intellectual property ghts by foreign authors appears to be unique to Scanned with CamScannerCu. 2 Sn. 2 cl 's, it is customary that, j copyright. As will be discussed in subsequent ole on application, ‘which order to obtain a patent, an inventor aur Similarly, many’ countries typically subject to review by a patent office rk in a public trademark require a foreign owner to register a tradema Copyright howe authority in order to obtain trademark protection. hibits @ country fro” different. Article 5(2) of the Berne oe on iher Berne countries. Such foreign works canto! be aubjt to Tomales, such requirements fe registration, fees, copyright notice, renewal, or manufacturing requirements by domestie publishers, ae Berne did not always contain a prohibition on ici one fact the first text signed in Berne in 1886 required them, stating ty at a e enjoy- ment of these rights is subject to the accomplishment of the condi il and formalities prescribed by law in the country of origin of the work. his was Perhaps understandable, given that a majority of Berne countries at the time required some formalities. Even France had a requirement of copyright registration for French authors as a condition for filing an infringement suit, Little discussion remains, however, as to why the delegates decided to adopt a limited formality requirement in the first text of Berne. Perhaps the original Berne countries felt that limiting the formality requirement to just one country—the country of origin—could help to avoid the many burdens that would be created if the author had to comply with different formality requirements in various countries, Under this approach, authors would not be entitled to claim national treatment under Berne if they failed to satisfy any formalities required by the law of the country of origin. The formality requirement was repealed by the 1908 Berlin revision of the Convention, which instituted the prohibition on formalities that has been 102 formalities served effectively as a precondition for 2 work in other Berne countries. Now, under the current approach in Article 5, only the country of origin can impose formalin, there; however, compliance with such formalities copyright protection elsewhere. An author of a Un: demand no formalities in Union countries outside work. One reason for the change appears to have been a desire to limit the extent to which a court would have to interpret foreign law—here, the law related to formalities from the country of origin—in cases involving copyrights ranted to foreign authors. Another reason yee he Union's recon tin ctike Principle of independent treatment in the ana, Provision: cope ah ne countries existed independently of copyrights in thew n: Copyrights in o 7 two reasons argue against relying country of origin. ‘Thes pon formalities fh z ‘hey do not necessarily argue against formaliieees fO™ the country of origi es, which ti’® altogether, such as a matter of domestic law for domestic worl h Berne a @ country might attempt to justify « complete ban not feBulate. However, ———— On copyright formalities 4. Berne Conv. art. 1 (Berne 1886), Scanned with CamScannersec. B AND Netannonina Rucrrs even for ee works as a matter of convenience in treating domestic and foreign wor the same, or as a matter of natural rights theory. A formality could be seen as an unnatural impediment to the author's natural right Pron.rm 2-6 Country Y imposes formalities on its own domestic nationals for their works but not on foreign ionals in order to obtain copyright. Alan, a national of Country Y, writes a novel in_Y and first publishes the novel in j Country Z which is a Berne Union couniry, Alan new attempts to enforce a copytight for the novel in Country Y but the authorities in Country ¥ insist that Alan must first comply with the formalities required of all domestic authors in Country Y. Does Berne allow Country Y to require Alan to comply with these formalities in order to obtain protection in Country Y? Hint: determine the country of origin of the work. See Berne Conv., art. 5(1) & 5(4). Prosiem 2-7 Section 411 requires a U.S. copyright holder for any “United States work” to register the copyright in the Copyright Office before a copyright infringement suit can be instituted in federal court. 17 U.S.C. § 411. The Copyright Act (id. § 101) defines “United States work” as follows: (1) in the case of a published work, the work is first published— (A) in the United States; (B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright proteetion that is the fame as or longer than the term provided in the United States; (C) simultaneously in the United States and a foreign nation that is not a treaty party; or (D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquar- ters in, the United States; (2) in the case of an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or, in the ease of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States; or or sculptural work incorporated in a (3) in the ease of a pictorial, graphic, is located in the United building or structure, the building or structure i States. Are these provisions consistent with Berne’s prohibitio Article 5? Why or why not? n on formalities under Norss ano Questions 1. Can the prohibition on formalities for copyright under Berne be ff formalities for patents? Why do WTO squared with the requirement o| Scanned with CamScannerSrc. B Cera Axo Nercumonne Ricirs us formances (Applicati WW protecte te sorte Countries) Order § 7, 2005 ST 2005/8862 i (UK). UK law protects th, : affected works as thes ta rights of reliance parties to continue to exploit the “savings” clause applice 4 renal planned or intended. ‘The safe harbor or works in good faith before rhe Ou. {0 reliance parties who used the forcign reliance partios who “or ta foreign country’s accession to Berne, but eleo te Pi s Who “made in good faith effective and serious preparations vhen they were not subject to UK copyrights. Id. compensation, either party The United Kingdom's implementation of Article 18, which can be traced back nearly to the beginning of the Berne Convention, has been influential in other commonwealth countries, such as Australia and New Zealand. Which approach is better—the United States’ approach or the United Kingdom’s? 4, POINTS OF ATTACHMENT AND NATIONAL TREATMENT FOR NEIGHBORING RIGHTS Berne. The Berne Convention does not speak directly to rights for performers or their sound recordings. As a result, the Berne Convention leaves it up to each country to decide for itself whether to include performers’ rights within the rubric of copyright; if a country decides to treat performance or sound recording rights as part of copyright law, then such rights become subject to the obligations of the Berne Convention, including national treatment. For example: Illustration 2-4. Country Z, a Berne Union country, treats rights for sound recordings under copyright law. By contrast, Country X, also a Union country, treats sound recordings under a lesser regime of neighboring or related rights. Alpha is a record production company located in Country X that first publishes a CD in Country X. Under the national treatment principle, because Country Z gives its own nationals copyright protection for sound recordings, Alpha is entitled to the same copyright protection for its sound recording in Country Z (even though Alpha only received a neighboring right in Country X, the country of origin). Under Berne Article 6(1), countries other than the country of origin are to grant foreign authors the same rights as their own nationals receive. Here, because Country 7 gives its own nationals a copyright for domestic sound recordings, Country Z must extend copyrights to foreign sound recordings from other Berne countries. : ' However, for Berne Union countries that do not snes ted amas or sound recording rights within the scope of copyright, 7 as unry in the example above, the Berne Convention simply io ee apply to performance rights. Consequently, other Berne em zi that eeogniae only neighboring rights for recordings would not have to extend copyright protection to Alpha’s recording. Such performance rights are subj Scanned with CamScannerHTS: Un CopyriHt AND Neransonine Rugurs ______©i.2 116 —— ern be recognized in other the principle of territoriality and would not countries without a treaty obligation. sion of performance ih Rome. To further the international En errors, ie ih, the International Convention for the Pro of Peto Ee i ryt Liont ot Phosogeame and Broadeasting OTE a ee Convention jg wvas signed in Rome in 1961, Aside from TRE ™ jighboring or related rights. 1 the most significant treaty concerning ni ough the US. remaine a 2011, the Rome Convention had 91 members, OT TRIPS requires some key country that has not joined Rome. wri 4, the protections of th recognition of performance rights under Article 14, bhe PEONGENU NS © the Rome Convention are broader, As a result, mem) He ; 7 | Rome Convention can still confer benefits above and beyond what is ee by TRIPS. although the Rome Convention lacks the strong enforcement mechanism of the WTO. The same type of analysis that we encountered under Berne—points of attachment and national treatment—can also be found in the Rome Convention. The points of attachment under Rome are even more compli- cated, however, as it treats separately three types of entities: (i) perform- ers, (ii) producers of phonograms or recordings, and (iii) broadcast organi- zations. Carefully read through the provisions and the explanation that follows. Rome Convention Article 2 1 an the purposes of bey Convention, national treatment shall mean the treatment accorded by the domestic law of thi tin; State in which protection is claimed: — (a) to performers who are its nationals, mi i aS Te ces taking place, broadcast, or first fixed, on its tenten Periorman (b) to producers of phonograms whi i 0 are its nati sgards phonograms first fixed or first published outa - a tantany, ta eeeenations which have their headquarters ters situated on its territory, accasts transmitted from transmit- 2. National treatment shall guaranteed, and the limitatio vention, * * * Article 3 For the purposes of this Convention; (a) “performers” mean, : CANS actors gt other persons who act, sing, elf MBS, perform literary or artistic woe|ve?? Cee (b) “phonogram” means any ofa RY exclugi, Performance or of other souingae”°YY Aural fixation of sound® be subj i apileet to the protection specifically leally provided for, in this Con- Musicians, dancers, and ‘aim, play in, or otherwis? Scanned with CamScannerSec. B Copyricus anp NEIGHBORING RIGHTS 117 (©) “producer of phonograms” means the person who, or the legal entity which, first fixes the sounds of a performance or other sounds; () “broadcasting” means the transmission by wireless means for public reception of sounds or of images and sounds; * * * Article 4 Each Contracting State shall grant national treatment to performers if any of the following conditions is met: (a) the performance takes place in another Contracting State; (b) the performance is incorporated in a phonogram which is protected under Article 5 of this Convention; (©) the performance, not being fixed on a phonogram, is carried by a broadcast which is protected by Article 6 of this Convention. see Article 3 of the Rome Convention establishes who and what type of works are covered: performers, producers of phonograms, and broadcast- | ing companies, and their respective rights relating to performances. Each of these persons or entities is entitled to a specific set of rights. See Article 7 (performers), Article 10 (producers of phonograms), Article 13 (broad- casters), The basic structure of the Rome Convention is identical to that of the Berne Convention: once a point of attachment exists, then the person or entity entitled to protection under the Rome Convention is entitled to receive performance rights under the domestic laws of every contracting state to the Rome Convention. As in the case of the Berne Convention, the | .¢- Rome Convention is concerned with foreign protection—not with the; [ 9 « protections afforded under the domestic law of the state where. the | performance took place, where the phonogram produced was first fixed or published, or where the broadcasting company has its headquarters or transmitter. The concern of the Rome Convention is with treatment off foreign performances, recordings, and broadcasts in other contracting states under the standard of national treatment, although, as a practical] matter, it would be unlikely that a Rome country does not provid equivalent domestic protection. Indeed, the drafters of the Rome Conven- tion considered requiring domestic protection, but agreed to drop the issue / based on the understanding that most countries would protect domestic performances, recordings, and broadcasts at least as well as foreign ones. Articles 4, 5, and 6 set forth the points of attachment under the Rome! Convention, i.e., the conditions under which protection and national treatment under the Rome Convention becomes available. Let us start with Article 4, which sets forth the points of attachment for performers. Regardless of their nationality, performers can establish a point of attach- ment if the performance is in a Rome Convention country. This is particularly beneficial to U.S. performers, who can effectively “back door’” Scanned with CamScanner18 Copyniairr anp Nec! | 8. is to Rome protection even though the log performer gives a concert ina contract ane performer is entitled to national treatment by virtue of the performance taking place Mlustration 2-5. Carrie is a musi \ X ® contracting state, Carri Convention in all othe rized “bootleg” copie wo Ricitrs Cu. 2 vo Rous __Cu.g not a party to Rome. Ifa yg tate such as Germany, the Ug, in all other contracting states 1 Rome country. : cert in Germany sian who gives a conce ., Nitled Lo the protection of the Rom contracting states. 1 Boog makes unautho. «of Carrie’s performance in Colombia, another iven national treatment in Colombia Rome country, Carrie should be given nal tet teleres i and the ability to prevent Boog's bootleg copies in Colombia, 7 vi be discussed in a later section, the Rome Conventior only requires the “possibility of preventing” such bootlegging, leaving it to countries how to carry out this obligation.) tion and the Rome One major difference between the Berne Convent Convention is that the nationality of the author suffices for all purposes under the Berne Convention, whereas place of performance is the decisive | 7! element under the Rome Convention. Although a performer is a nat see contracting state to the Rome Convention, the performer must) nevertheless perform in a Rome country to gain the protections of Rome. By contrast, under the Berne Convention, if the author is a national ofa contracting state, the author is automat whether the author wrote the work ina Be Article 4(b) and 4(c) of Rome cre, for performers. If the performance tal a performer can still enjoy the prote the producer of the Phonograms or y question is entitled t 10 protection und tically protected regardless of jerne country, and regardless of ‘ate two other points of attachment ‘kes place in a non. tion of the Rome Convention if (1) ecording of thi contracting state, || @ performance in ares cr the Rome Convention under attachment of any producer of ; 8 recording Organization that broadcasts the (at mane. ee Where the Lypivally per cted under Rome country, one Must ducer of a recordin performance ‘arefully read the provisio Rome Convention Article 5 1. Each Contracting ers of phonograms if a @ performer is prote was not ina Rome see if (i) any pro broadcaster of the ment. C, ng of might have Ons belows State shall gran ny of the fi) (Re lowin, ‘ation that bron of tt ‘onvention under Article 6. Piggybacks" ne dcast the perform- onto the Rome point of ) the performance or any / } in order to determine i Performance in question Sonsult Articles 5 and 6 to the performance or {ii) any established 9 Point of attach- / t national ty juc- B conditige tement to prod ttions is met: Scanned with CamScanner tionar | yfSec. B OP: 9 ci YRIGHTS AND Netcnnonine Ricits 11 ® the producer of th fontracting State (criterion of nationality) (b) the first fixation of the nd ing State (criterion of fixati 2 the phonogram was first tate (criterion of publication), 2. Ifa phono; ; ished i if it wasaln gram was first published in a non-contracting State but Published, within thirty days of its first publication, i Cuntracane cee es thirty days of its first publication, in a fn anid em Bom 3. By means of a notification deposited with the Secretary-Gen of the United Nations, any Contracting State may declare That al 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 time thereafter; in the last case, it shall become effective six months after it has been deposited. Article 6 1. Each Contracting State shall grant national treatment to broad- casting organisations if either of the following conditions is met: (a) the headquarters of the broadcasting organisation is situated in another Contracting State; (b) the broadcast was transmitted from a transmitter situated in another Contracting State. 2. By means of a notification deposited with the Secretary-General of the United Nations, any Contracting State may declare that it will protect broadcasts only if the headquarters of the broadcasting orga- nisation is situated in another Contracting State and the broadcast was transmitted from a transmitter situated in the same Contracting State. Such notification may be deposited at the time of ratification, acceptance or accession, or at any time thereafter; in the last case, it shall become effective six months after it has been deposited. ion); nae h in Article 5, producers of phonograms or recordings can sed on any of the following: (i) being a ding first in a Rome the recording in a Rome As set fort establish a point of attachment based national of a Rome country, (i) fixing the re country, or (ii) first or simultaneously publishing country, Article 3 defines “producer of pl i se gal entity which, firs fixes the sounds of « performance or other one ee thas, when an employee of a corporacion first fixes « perform. sounds he course of employment, the corporation is treated as the producer of the phonogram. ‘Article 6 also redounds to the benefit i ion, the perfor! er qualifies for protection, th i treatment for that recording from Rome coun’ ‘also is entitled to national tries. For example: sound was made in another Contract- ( Published in another Contracting ¢- honogram” as “the person who, S \ of performers, Once the produe- Scanned with CamScanner ie phonogram is a national of another par bhrGHBoRING Ru 120 wp NE . ™ tate. Digitex, — in a non-Rome s y ion 2-6. Carrie gives a concer zram of the perform- pyeicatien apts produces a phonogram % ‘eaten restr Carrie and Digites are entitled 10 nm tom ance. Bo! ox are On is a na e i tex (i) is spate the Rome Convention i Disites () i ee me ¢ cert int (i) has first fixed the concer pho ae ete a as Firat or simultancously published the phonogram of the concert in a Rome state. Let's assume nn one is ot a national of a Rome country and did not fix the recom itt: Tate : Rome country. Even then, Digitex could i create a pe i of tach - ° if it firs ishes the recording 9 ment under Rome if it first publishes . 5 country, If Digitex does so, Carrie, too, establishes a point of attach- ment under Rome, piggybacking onto Digitex’s point of attachment. See Rome Conv. art. 4(b). Mustration 2-7. Carrie gives a concert in a non-Rome state that is not \ fixed in a phonogram. Electra is a broadcasting company that broad- casts a live performance of Carrie’s concert. Both Carrie and Electra are entitled to national treatment under the Rome Convention if (i) Electra has its headquarters in a Rome state or (ii) Electra transmit- ted the performance from a transmitter located in a Rome state. The basic idea behind Illustrations 2-6 and 2-7 is to treat performers comparably to the producers of their recordings or broadcasters of their performances, at least with respect to performances that take place outside Rome countries. If a performance is the basis of a point of attachment for a recording producer or broadcasting organization, then the performer herself also receives a Rome point of attachment, Rome does not treat performers on par with producers and broadcasters in all respects. While the nationality of the performer does not establish a point of attachment under Rome, the nationali ° ‘ . 7 nality or its i. location of a recording or broadcasting company in a eet nthe industries. However, Article 4 en broadcasting companies are not placed in a he ers whose performances occur in a non-Ror Piggyback whatever point of attachme ducers and broadcasting organizations Once a point of attachmer Phonogram producers and ter position than perform n-Rome state: the performer cat oe 's established by recording pro- or the performance. nt is estab} , . i tive party certain protections. Fey ished, Rome entitles the respec brs, ticle 7 of the Rome Convention requires member countries to » Ki of preventing” certain ‘bi ive performer anil . prohibited act, Performers “the possibility im Article LAA) of TRIPS. Rome Con that parallel those now de ge 4 i nV. art now designated language “the possibility of Preventing, D5 TRIPS. ar yp). The exclusive right, but instead gives eo) “08 not art, 14). “4 Protection through criminal laws, Uti sblicitly create 6 *S Mlexibility to enforce such Scanned with CamScanner | | | ASee.B__Coryrretrs ann Netcumonine Ricirs 121 10 of Rome recognizes “the direct reproduction of their cle 14(2) of TRIPS recognizes the 4(4) also recognizes a rental right ie comparable to the one for computer programs (4). right to authorize or p phonograms.” Rome Conv. art. 10. Ar same. TRIPS art. 14(2). TRIPS Article | for producer of phonogran in Article 11, Id. ar For broadcasting organizations, Article 19 of Rome recognizes several exclusive rights against unauthorized rebroadcasting, fixation, and repro- duction of their broadcasts. Rome Cony. art. 13. Article 14(3) of TRIPS ts similar. TRIPS art, 14(3). The Rome Convention contains a provision recogn ing a performance right entitling the performers and/or producers of phonograms an “equita- ble remuneration” for public performances. Rome Cony. art. 12. This ‘provision has-been ahiuge obstacle to the U.S.’s consideration of joining Rome. U.S. copyright law does not recognize a right of public performance for sound recordings (except in the case of digital transmissions), although Congress is now considering such an amendment. ‘The WIPO Phonograms Treaty was intended to strengthen rights for performers and producers of phonograms. One major advancement is that the WIPO Treaty recognizes a number of “exclusive rights” for both performers and producers of phonograms, including reproduction, distri- bution, rental, and the right of making available fixed performances. Performers also are accorded exclusive rights in their unfixed perform- ances under the Treaty. Like Article 12 of Rome, the WIPO Phonograms Treaty recognizes a right of public performance in Article 15 (called the “right to remuneration for broadcasting and communication to the pub- lic”). WIPO Performances and Phonograms Treaty art. 15. Under the ‘Treaty, “[plerformers 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.” Id. art, 15(1). The significance of this provision is undermined, however, by the fact that, by its own terms, it is purely optional for countries. The U.S. notably has not recognized such a performance right for performers. Prosiem 2-9 In which of the following cases is a point of attachment established under the Rome Convention for the performance in question? If a point of attach- ment is established, who is entitled to protection under the Rome Convention? (a) Andrea, a national of Country Z, a contracting state to the Rome Convention, gives a concert in Country X, a non-contracting state. (b) Brianna, a national of Country Y, a non-contracting state to the Rome Convention, gives a concert in Country Z, a contracting state, he Ro jonal of Country X, a non-contracting state to the Rome Senvection, gives a concert in Country W, ala0 & non-contracting state, Scanned with CamScanner