The Rome Convention

The International Convention for the Protection of Performers, Producers and Broadcasting Organisations, called the Rome Convention, adopted in 1961 in the frame of WIPO is the “founding” text for the protection of performers' and phonographic producers' rights at international level (75 years after the Berne Convention protecting authors).

This convention protects performers, phonogram producers and broadcasting organisations. It organizes a minimal basis of protection, which must be first implemented by any state willing to become a party to this Convention.

As of 14 January 2005, 79 States had ratified this convention.

First definitions

One of the merits of the Rome Convention is to have outlined performers' right at international level namely by defining some concepts in its article 3.

Performers who may be considered as right holders are defined as

“actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works”.

The notion of performers is thus linked to that of the work they perform.

Nonetheless, one should note that according to the terms of Article 9 of the Convention:

“Any Contracting State may, by its domestic laws and regulations, extend the protection provided for in this Convention to artists who do not perform literary and artistic works”.

Therefore national legislation may protect not only performers who perform a variety or circus act, but also -as in French law- performers involved in traditional or folklore performances even if these have not been considered as works.

The phonogram (Article 3b) is defined as being “any exclusively aural fixation of sounds of a performance or of other sounds”.

By publication (Article 3 d) is meant “the offering of copies of a phonogram to the public in reasonable quantity”.

The content of the minimal protection granted by the Convention

The Rome Convention grants a minimal level of protection that any Contracting State to the Convention must guarantee in its territory.

But the protection granted to performers is relatively weak, limited to aural interpretations and recordings and widely open to exceptions.

Article 7 of the Convention does not provide for the possibility of performers authorizing or prohibiting a particular use of their performances but solely lays down that

“1. The protection provided for performers by this Convention shall include the possibility of preventing” certain uses of their performances which can be briefly summarized:

- the recording of their unfixed performances
- the broadcasting or communication to the public of their unfixed performances
- the reproduction of a unauthorised fixation of their performances
- the reproduction of a fixation of their performances if the reproduction is made for purposes different from those for which the performers gave their consent (notion of secondary uses)

This notion of possibility of prevention has been included in the Convention apparently at the request of the British government which did not wish to create a right for the benefit of performers, but whose system of criminal law allowed sanctions to be imposed against certain actions running counter the interests of performing artists.

Beyond the rights applying to unfixed performances, it is essentially a right (a possibility of preventing) on the reproduction of authorized fixations. The reference in Article 7 to a “made for purposes different from those for which the performers gave their consent” is interesting, to the extent that it introduces the concept of “destination”: the reproduction of a phonogram can be authorized for the making available of this phonogram to the public by sale, it can initially not have been authorized for the use of this phonogram in a film or in an advertisement ...

In the area of communication to the public and broadcasting of fixations, the protection granted by the Rome Convention is limited to aural fixations.

The most significant provisions with objective consequences in the legislation of the states party to the Convention are those included in Article 12 which states:

“If a phonogram published for commercial purposes, or a reproduction of such phonogram, is used directly for broadcasting or for any communication to the public, a single equitable remuneration shall be paid by the user to the performers, or to the producers of the phonograms, or to both. Domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of this remuneration.” 

Article 12 thus imposes upon the broadcaster of phonograms published for commercial purposes the obligation to pay a “single equitable” remuneration for the (aural or audiovisual) broadcasting.

It has to be noted that the mechanism of single and equitable remuneration put in place is not very constraining. The single and equitable remuneration:

• concerns phonograms published for commercial purposes (exclusively aural fixations of sounds offered to the public  in reasonable quantity according to the definitions of the Rome Convention)
• is due in the case of broadcasting or any communication to the public
• must be paid to the performers or the producers of phonograms or to both ...

A state can thus ratify the Rome Convention granting a right to a equitable remuneration only to the phonogram producers and not to the performers and vice versa.

Moreover, no sharing rule is established between the performers and the phonogram producers both of whom are beneficiaries of this remuneration.

The protection is also widely open to exceptions.

According to Article 16 of the Rome Convention, any State upon becoming a party to this Convention, can notify that it will not apply the provisions of Article 12 in respect of certain uses (for example television broadcasting or communication in public places), or even that it will not apply any of the provisions of Article 12.

It has however to be indicated that the right of equitable remuneration has been widely applied by the states which have ratified the Rome Convention. In nearly all cases, the remuneration right is granted both to the performers and phonogram producers and the legislations which have provided for it organize an equal share between performers and producers of the collected remuneration.

The Rome Convention lays down an audiovisual exception in its Article 19 which is very negative for performers.

According to Article 19:

“Notwithstanding anything in this convention, once a performer has consented to the incorporation of his performance in a visual or audiovisual fixation, Article 7 shall have no further application”.

When the performer has authorized the inclusion of his performance in an “audiovisual product” (comprising images), he loses any possibility of exercising the rights that have been granted to him by Article 7 of the Convention.

This provision which shows the influence of the audiovisual industry in 1961, which did not wish to be “disturbed” by the emergent rights of performers is today still the ancestor of legal advantages granted to the audiovisual production. The debate is not yet closed and this approach of the audiovisual industry can be found in the pressure that it exerts in the frame of the negotiations on a new treaty for performing artists in the audiovisual field where the industry tries to obtain the inclusion of presumption of transfer of rights of the performing artists to the audiovisual producers.

Although Article 19 eliminates the application of Article 7 when there is an initial authorization from the performer for the inclusion of his performance in an audiovisual production, this article does not push aside the application of Article 12. Consequently, the incorporation even authorized of a commercial phonogram in an audiovisual production offers no exemption from the payment of the equitable remuneration when this audiovisual production is broadcast.

Possible exceptions to the protection

Article 15 of the Convention provides for the benefit of the Contracting States the possibility to organize in their national legislation a certain number of exceptions to the rights guaranteed by this Convention.

Firstly, Article 15 authorizes such exception as regards:
- private use
- use of short excerpts in connection with the reporting of current events
- ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts
- use solely for the purposes of teaching or scientific research.

To these exceptions can in a general be added way the same kind of limitations as the state provides for in its legislation in connection with the protection of copyright in literary and artistic works.

Duration of protection

Article 14 of the Convention provides that the term of the protection granted last at least until the end of a period of twenty years computed from the end of the year in which the fixation was made for performances incorporated in phonograms or at the end of the year in which the performance took place for performances not incorporated in phonograms. As regards the broadcasts of broadcasting organisations, the term is computed from the end of the year in which the broadcast took place.

Limited national treatment and reciprocity

According to the terms of the Convention, the Contracting State shall grant national treatment to the nationals of the other Contracting States; it shall treat the nationals of foreign countries which have ratified the Convention as its own nationals.

But this national treatment has been limited.

Indeed, Article 2 of the Convention specifies that the national treatment “shall be subject to the protection specifically guaranteed, and the limitations specifically provided for, in this Convention”.

The national of a country which has ratified the Rome Convention will thus benefit in another Contracting State from the protection granted by this country as regards the rights accorded by the Convention which means, for the performers, Articles 7 and 12. He will not benefit, by the application of the Convention, from all the provisions of the national legislations.

As regard the submission of national treatment to the limitations provided for by the Convention, this is illustrated in Article 16.

The principle of reciprocity

Indeed, concerning the application of Article 12 (equitable remuneration), the Convention provides in its Article 16 that a State may at any time declare that “as regards phonograms the producer of which is a national of another Contracting State, it will limit the protection provided for by that Article (12) to the extent to which, and the term for which, the latter State grants protection to phonograms first fixed by a national of the State making the declaration”.

Here appears the notion of reciprocity, which allows State A not to recognize for example the right of equitable remuneration to a performer whose performance is fixed on a phonogram fixed by a producer of State B if the right to equitable remuneration is not recognized in country B for phonograms fixed by a national of country A.

This notion of reciprocity, which enshrines the only provision really creating (remuneration) rights under the Convention, encourages States to have satisfactory protection in order to see their own nationals afforded protection in other member states.

Also at issue is preventing less protective states, by means of such limited national treatment and the principle of reciprocity, from ratifying the convention at low legislative cost, formulating, for example, blanket reservations on the application of Article 12 and subsequently arguing that their own nationals should benefit from all systems of protection existing in the domestic laws of the other Contracting Parties.

This debate would clearly not take place if the Rome Convention contained a very complete and protective system.

Conditions which must be met in order to benefit from national treatment

Article 4 sets out the conditions under which performers enjoy protection. Performers shall enjoy the minimum protection granted by the Convention if the following conditions are met:
- the performance must take place in another Contracting State
- the performance is incorporated  in a protected phonogram
- the performance, not being fixed on a phonogram, is broadcast by a broadcasting organisation the headquarters of which are situated in a Contracting State or if the broadcast was transmitted from another Contracting State

Conclusion : the interest of a first protection

It is true, and some States have done it, that is possible to ratify the Rome Convention without expressly recognizing “exclusive” rights (right to authorize or prohibit) to the performers and without even granting them an equitable remuneration for the broadcasting or communication to the public of phonograms published for commercial purposes.

Moreover, performing artists are still today confronted with the imbalance created in the audiovisual domain by the wording of Article 19. 

Nevertheless, numerous countries have adopted the outline of a system of protection for performers post the Rome Convention and the system of equitable remuneration has been adopted in numerous European countries, making it possible for the first time for performers to benefit from revenues from the use made by third parties of their fixed performances.

The content of the Contracting States' ratification instruments vary greatly and as indicated above, affect to a large degree the scope of their adhesion.
It is also incontestable that the Rome Convention is obsolete today, for example where it does not provide for rights for performers in the domain of broadcasting or communication to the public of audiovisual fixations.

Acknowledgement of this has led to the adoption, in the context of the World Intellectual Property Organization, of the WIPO Performances and Phonograms Treaty of 1996.