The WIPO Performances and Phonograms Treaty of 20 December 1996

The inadequacies of the Rome Convention were not felt solely by the rightholders that it was meant to protect and in particular the performers and phonogram producers.

A diplomatic conference was held by WIPO from 2 to 20 December 1996 in Geneva and led to the adoption on 20 December 1996 of the WIPO Performances and Phonograms Treaty.

As of April 2005, 49 States had ratified this Treaty.

We mention only the most important points of this new international instrument.

General provisions

The first article of the treaty provides that “nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations done in Rome October 26, 1961”.

The Rome Convention thus seems, in cases of conflict with the Treaty, to prevail over the latter for the States which are parties to both international instruments.

Article 1 provides also that “this treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties”

The definitions

Article 2 of the treaty contains several definitions, of which certain deserve special attention.

1.
The performers are defined as “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”.

This definition is thus wider that the definition of the Rome Convention. Protection is afforded not only to performers who interpret a work as provided for under Article 3 a) of the Rome Convention, but also to those who interpret an expression of folklore, not protected by copyright. This was already the case in several national legislations but not in an international instrument.

2.
The definition of phonogram is not very clear.

Indeed, Article 2, b) provides that “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”.

This definition, in its last part, differs noticeably, at least in appearance from that included under Article 3 b) of the Rome Convention which defines the phonogram as “any exclusively aural fixation of sounds of a performance or of other sounds.”

However, in reality it seems that the last part of this definition which excludes from the definition of phonogram a “fixation incorporated in a cinematographic or other audiovisual work”, aims at excluding audiovisual fixations.

Indeed, the word fixation refers to the concept of “first fixation”, of initial recording, as opposed to a reproduction of this initial recording, of this fixation.

Audiovisual recordings are thus excluded from the definition of “phonogram”, and not, for instance, the reproduction, in an audiovisual work, of a fixation of sounds.

This is confirmed in the context of the agreed statements adopted by the diplomatic conference concerning Article 2 b) and which specify that “It is understood that the definition of phonogram provided in Article 2 b) does not suggest that rights in the phonogram are in any way affected through their incorporation into a cinematographic or other audiovisual work”.

3.
The fixation is defined as “the embodiment of sounds, or of the representations thereof, from which  they can be perceived, reproduced or communicated through a device” (Article 2 c)), It has to be understood that what is at stake is the “first fixation” , the initial recording, which can then be reproduced.

4.
The treaty does not contain any definition of the reproduction.

This was indeed a sensitive point in de context of the “new techniques”.

The participants to the Diplomatic Conference who tried to work by consensus have therefore refrained from innovating in this domain.

This difficulty was also felt when the content of the “reproduction right” was discussed.

5.
The definition of the notion of publication is very classical. Article 2 e) provides what is meant by publication “of a fixed performance or of a phonogram the offering of copies of the fixed performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity”.

The notion of offering to the public in reasonable quantity existed already under The Rome Convention.

In the initial draft of the treaty a more innovative definition was envisaged as the inclusion in the notion of publication of the “making of the fixed performance or the phonogram available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them.”

This proposal did not achieve consensus, so has not been maintained. It was aimed “to take into account the new technological environment in which publication now may take place” and “to cover the making available of phonograms by interactive on-demand transmissions”, considering that “making performances and phonograms available in the on-line context may be compared to the establishment of a global record shop, offering copies to everyone, everywhere, and still satisfying the condition of "reasonable quantity" because the availability of copies is virtually unlimited”(comments of the basic proposal page 22, 2.20).

6.
Broadcasting  is defined as “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 considered “broadcasting”;  transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasting organisation or with its consent;”

The treaty does not distinguish between techniques of broadcasting (digital or analog) and the criterion of broadcasting “for public reception” is the determining factor. A private transmission not intended for public reception and received by a member of the public is not considered as broadcasting. On the other hand, the transmission of encrypted signals constitutes broadcasting if the possibility of decrypting this broadcast is normally provided to the public by the broadcasting organisation or with its consent.

7.
The definition of communication to the public (article 2 g) deserves particular attention, as this concept may have different definitions according to the legislations and instruments.

The WPPT provides that “communication to the public” is considered to mean the communication “of a performance or a phonogram the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram”.

Communication to the public is thus taken to mean any transmission to the public apart from broadcasting.

It would have been more logical to consider, as it is often the case, broadcasting as a particular form of communication to the public.

Moreover, Article 2 g specifies in fine that “for the purposes of Article 15, “communication to the public” includes making the sounds or representations of sounds fixed in a phonogram audible to the public”. In this case the aim is to enlarge the scope of application of the “equitable remuneration”.

Content of the minimal protection granted by the new Treaty

a) the moral right

Article 5 grants a moral right to the performers:

“1) 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.”

The new Treaty grants to the performer a balanced right of paternity as it provides that the identification of the performer may be claimed “except where omission is dictated by the manner of use of the performance”.

The rather vague wording of this exception seems somewhat unfortunate. It would probably have been preferable merely to lay down the principle and leave jurisprudence the task of precisely delineating the right.

Moreover, it is regrettable that the possibility of opposing to any distortion, mutilation or other modification of the performance is subject to the demonstration that such acts are “prejudicial to the reputation of the performer”.

The very existence of a “distortion” or a “mutilation” should enable the performer to institute legal proceedings on the basis of his moral right. Article 5 keeps the rather old wording of Article 6 of the Berne Convention in the domain of authors' rights.

Subsequently, Article 5 of the new treaty provides that:

“2) The rights granted to a performer in accordance with paragraph (1) shall, after is death, be maintained, at least until the expiry of his economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the Contracting Party where protection is claimed”

This formula also taken from the Berne Convention keeps the moral right to a minimum until the expiration of the economic rights of the performer. Of course national legislations may provide for a higher level of protection of the moral right, which is often the case notably by making this right imprescriptible. 

The possibility, existing for authors' rights in the Berne Convention, for Contracting Parties not to maintain the moral right after the death of the author if their legislation at the moment of the ratification or of the accession to the treaty does not provide for protection after the death of the author, has been “taken
over” in the Treaty.

b) The economic rights of performers to their unfixed performances

The right of fixation

Article 6 of the new Treaty grants to the performer the exclusive right of authorizing, as regards their performances:

“i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and

ii) the fixation of their unfixed performances.”

1.
The equivocal wording of Article 7 of the Rome Convention or of Article 14 of the TRIPS Agreement within WTO, being “the possibility to prevent” has been definitively omitted.

One may regret that it was not specified, for all performing artists' rights, that such authorizations must be written authorizations, taking into account the practical reality and the sometimes rather disorganised conditions in which recordings are made.

2.
The exclusive right to authorize is thus granted for the fixation.  This refers to the initial recording of performances which the performer may or not authorize.

The performer enjoys also the right to authorize the broadcasting and the communication to the public of his live performance (unfixed performance).

3.
These provisions seem to concern both aural performances and audiovisual performances, no distinction being made on this point.

A certain ambiguity persists however when referring to the definitions of Article 2.

Indeed, the definition of fixation refers only to “sounds”, like the definition of communication to the public, but the definition of broadcasting refers to “sounds and images and sounds“ ...

A restrictive interpretation of the fixation and communication to the public would however come up against the obligations that fall within the scope of application of the Rome Convention. Article 7 of the Rome Convention does not draw any distinction as to whether fixation or broadcasting and communication to the public refer to aural or audiovisual performances (cf. Article 1 of the new treaty).

The right of reproduction

Under Article 7, performers enjoy “the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in phonograms, in any matter or form”.

The granted reproduction right refers only to aural fixations of performers' performances.

The right of distribution

Article 8 of the new Treaty grants to performers an exclusive right “of authorizing the making available to the public of the original and copies of their performances fixed in phonograms through sale or other transfer of ownership”

The protection of performer is also in this case limited to the aural domain.

The second paragraph of Article 8 leaves to the Contracting Parties the freedom to determine the conditions of the exhaustion of the distribution right.

The right of rental

According to Article 9, performing artists enjoy the exclusive right of authorizing the rental focused on “the commercial rental to the public of the original or copies of their performances fixed in phonograms” and this even after the distribution of the phonogram authorized by the performer.

In order to respond to the demands of certain States, paragraph 2 of Article 9 leaves the possibility to a Contracting Party which on 15 April 1994 did not apply a system o exclusive right but had in force a system of equitable remuneration for the rental, to 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”.

The right of remuneration for broadcasting and communication to the public for the benefit of performers and phonogram producers

The Diplomatic Conference has “re-edited” of Article 12 of the Rome Convention by adopting Article 15 of the new Treaty.

1.
Article 15 provides that:

“(1) 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.

(2) Contracting Parties 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. Contracting Parties 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.

(3) Any Contracting Party may in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all.

(4) 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

2.
It has to be remembered that these provisions concern in principle phonograms published for commercial purposes and thus, referring to the definition of publication (Article 2 e) of the Treaty) phonograms of which copies are offered to the public in reasonable quantity (but point 4 of Article 15 opens other possibilities cf. infra).

A right of remuneration is guaranteed when these phonograms published for commercial purposes are broadcast (transmission by wireless means for public reception of sounds or of images and sounds according to Article 2 f)) or communicated to the public (transmission to the public by any medium otherwise than broadcasting and according to Article 2 g making the sounds or representations of sounds fixed in a phonogram audible to the public).

3.
These provisions are quite deceptive for several reasons.

Firstly, it is not provided that this “single equitable” remuneration must be collected jointly by the artists and phonogram producers. As it concerns a single remuneration “claimed from the user”, it would have been desirable to specify this in the Treaty. It is, indeed, the simple and reasonable solution chosen by the vast majority of legislations that grant such right of remuneration and which allows the preservation of the balance between performers and phonogram producers.

For the same reasons, one can regret that the treaty does not specify that this remuneration shall be divided in equal parts between performers and phonogram producers.

The Treaty refers indeed in the first place to an agreement between the interested parties on their share of the remuneration and, in the absence of such agreement, to the national legislations, which is not satisfactory.

Finally, the new Treaty maintains the possibilities of reservations existing under Article 16 a) i) and ii) of the Rome Convention concerning Article 12 of this Convention, and gives Contracting Parties, the possibility, by notification, of limiting the application of this system of remuneration right, or of excluding it totally.

4.
Paragraph 4) of Article 15 assimilates to a phonogram published for commercial purposes “a phonogram made available 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.”

A particular provision of the treaty covers this “making available to the public” in the framework of on-demand services.

The broadcasting or communication to the public of a phonogram which moreover is made available to the public on demand must therefore generate the payment of equitable remuneration .for this broadcasting or this communication to the public.

Indeed in applying the new Treaty, a phonogram, which is not published in the classic way, would be covered by the exclusive right of Articles 10 and 14 in the context of making available to the public on demand, but would not be protected by an exclusive right when broadcast or communicated to the public.

Its assimilation to a published phonogram makes it possible to cover this broadcasting or this communication o public by a right to equitable remuneration of Article 15, by the sole application of this regime.

The right of making available to the public

Article 10 grants to performers the exclusive right of authorizing “the making available to the public of their performances fixed in 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.”

This provision refers to the “on demand” systems, made possible notably by the digital networks.

From the moment that a choice is made on the time and a place from which access to phonograms takes place - and in this domain we do not speak about publication and the necessity to have copies in sufficient quantity - an exclusive right is granted to the performers for this type of communication to the public.

This is probably the major innovation of the Treaty of 20 December 1996.

Once again, it has to be noted that this protection applies to aural recordings, not audiovisual, and to acts of making available to the public on demand by wire (such as internet) or wireless (by broadcasting), which is not done commercially today.

Limitations and exceptions

Article 16 of the new Treaty stipulates:

“(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard o the protection of performers and producers of phonograms as they provide for in their national legislation, in connection with the protection of copyright in literary and artistic works.

(2) Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty 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 performers or of the producers of the phonogram.”

Point 1) of Article 16 takes up the wording of Article 15.2 of the Rome Convention by referring to the existing provisions in connection with copyright (and of which some have already been evoked with respect to Article 15 1. of the Rome Convention).

One must thus refer to the Berne Convention and its Articles 10, 10 bis and 11 bis paragraph 3 to find the possibility for Contracting States to this Convention to include in their national legislation exceptions with regard to quotation, education or ephemeral recordings by broadcasting organisations.

However, the new Treaty has maintained, by its inclusion in this Article 16 the “safeguard” provision existing in Article 9 2) of the Berne Convention which permits such limitations and exceptions only:
- in certain special cases
- which do not conflict with a normal exploitation of the performance
- and do not unreasonably prejudice the legitimate interests of the performer.

Nevertheless, these exceptions and limitations remain very broad and the “safeguard” provision seems sufficiently vague as to generate discussions which will not favor rights being strictly respected.

The term of protection

The new Treaty provides in its Article 17 1) for the benefit of performers a term of protection which shall last “at least until the end of a period of 50 years computed from the end of the year in which the performance was fixed in a phonogram”.

The term of protection is thus 50 years from the audio recording of the performance.

This reference to the sole audio recording is not very coherent as it concerns a protection which is not limited to phonograms.

As regards the phonogram producers, the term of protection shall “last, at least, until the end of a period of 50 years computed 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”.

Under the Rome Convention (Article 14) the term of protection was of 20 years computed from the fixation.

These 50 years computed from the fixation or from the publication are far removed from the 50 years of protection granted after the death of the author by the Berne Convention.

Moreover, it should have been preferable, as regards performers, in case of publication, to defer the protection from the date of publication.

Is it logical and equitable that a phonogram producer after making a recording and only publishing it several years after the recording,  be protected for a longer time that the performer because the 50 years of his protection will begin after the publication?

Yet, it seems that this is the consequence of the adopted text.

The beneficiaries of the protection

1) The scope of the national treatment

This extremely delicate point would merit long discussion, notably in order to describe the debates that it generated during the Diplomatic Conference of 1996.

It constituted one of the points of conflict between the United States and the European Union.

Article 4 finally adopted is the following:

“1) Each Contracting Party shall accord to nationals of Other Contracting Parties, as defined in Article 3(2), the treatment it accords to its own nationals with regard to the exclusive rights specifically granted in this Treaty, and to the right of equitable remuneration provided for in Article 15 of this Treaty.

2) The obligation provided for in paragraph (1) does not apply to the extent that another Contracting Party makes use of the reservations permitted by Article 15(3) of this Treaty.”

The national treatment is thus granted for the exclusive right of fixation of performers as well as for the rights of communication to the public and broadcasting of their unfixed performances and also for the rights of reproduction, distribution, rental and making available to the public of performers and phonogram producers.

As regards the remuneration right for broadcasting and communication to the public of phonograms published for commercial purposes, the national treatment is granted only if the other State does not use the permitted reservations.

The national treatment is limited to the sole exclusive rights granted by the new Treaty, and to the right of “equitable” remuneration to the extent that no reservations have been made and that this right is recognized by the State of which the national asks for the benefit of national treatment.

These dispositions seem equitable.

2)  The beneficiaries of the protection

Article 3 of the new Treaty provides that the beneficiaries of the protection are covered in the following conditions:

“1) Contracting Parties shall accord the protection provided under this treaty to the performers and producers of phonograms who are nationals of other Contracting Parties.

2) The nationals of other Contracting Parties shall be understood to be those performers or producers of phonograms who would meet the criteria for eligibility for protection provided under the Rome Convention, were all the Contracting Parties to this Treaty are Contracting States of that Convention. In respect

3)  Any Contracting Party availing itself of the possibilities provided in Article 5 (3) of the Rome Convention or, for the purposes of Article 5 of the same Convention, Article 17 thereof shall make a notification  as foreseen in those provisions to the Director General of the World Intellectual Property Organisation (WIPO).

The new Treaty refers thus explicitly by this Article 2 to the points of attachment of Articles 4 and 5 of the Rome Convention of 1961, either by the fact that the performance takes place in a Contracting Party, or that the nationality of the producer of the recording is that of a Contracting Party, or that the place of fixation or publication is a Contracting Party.

Paragraph 3 of Article 2 of the new Treaty refers to the possibility, for Contracting Parties, to set aside the criterion of publication or the criterion of fixation (in the latter case under the conditions provided for in Article 17 of the Rome Convention).

Provisions concerning the enforcement of rights

According to Article 23 of the new Treaty

“1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.

2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent for further infringements”.

By using the terms “effective” and “expeditious” the Diplomatic Conference wanted to insist on the necessity of putting genuinely effective legal and judicial instruments at the disposal of rightowners.

Obligations concerning technological measures and rights management information

Article 18 of the new Treaty contains the following declaration of principle:

“Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this treaty and that restrict acts, in respect of their performances or phonograms , which are not authorized by the performers or the producers concerned or permitted by law”

This provision requires States to support the technical devices of protection of rights implemented by performers and phonogram producers.

In the same way, Article 19 requires Contracting Parties to provide for “adequate and effective legal remedies against any person” who removes or alters any electronic rights management information, who exploits performances or copies of fixed performances or phonograms, after electronic rights management information has been removed or altered without authority.

The Treaty intended hereby to protect the systems of codification and identification, indispensable for the management of rights.

Entry into force of the Treaty

Under Article 29 of the Treaty, the Treaty shall enter into force “three months after 30 instruments of ratification or accession by States have been deposited with the Director General of WIPO.”

This number was reached and exceeded during the first semester 2002; as of April 2005, 49 States had become Party to the Treaty.

Some conclusions

Though innovative in certain aspects, this new Treaty has also disappointed rightholders because of its limited scope of protection.

This incomplete protection lays behind a resolution passed by the Diplomatic Conference to adopt a protocol on the protection of audiovisual performances.

These negotiations on the adoption of such a protocol continue.

1. An incomplete protection

It is difficult, after the adoption of texts as European directives, not to judge the new instrument only on the basis of the distance that separates it from the Rome Convention of 1961.

Incontestably, the recognition of a moral right to the benefit of performers, and the recognition of exclusive rights of authorizing the fixation, the broadcasting and communication to the public of live performances, the reproduction, the rental, the distribution, the making available to the public, even in the limited field of the audio domain, constitute a progress.

The same can be said about the term of protection which changed from 20 years in the Rome Convention to 50 years.

Despite these positive elements, and beyond the insufficient clarity of several provisions, it is difficult to accept that an international instrument, adopted at the end of 1996, could not cover the audiovisual domain.

On the other hand, the provisions relating to the broadcasting or the communication to the public of a phonogram published for commercial purposes are in all points similar to the ones adopted in 1961 by the Rome Convention, and included the possibility, at least contestable, of adhering to the new instrument with a declaration not to apply the integrality of these provisions.

It is somewhat difficult to come to a final conclusion on this normative process -which reflects first and foremost the lowest common denominator among the States- before the end of the process which aims at the adoption of a new protocol for audiovisual performances, “at the latest in 1998”.

2. Provisional epilogue: the problem of the audiovisual

1.
The basic proposals communicated on 30 August 1996 left two options open for performers: an instrument which covers only the audio part, or an instrument covering every type of performance, audio and audiovisual.

The other rightholders benefiting from the new Treaty, the phonogram producers were not concerned by this debate. As regards the audiovisual producers, they have always indicated that they did not want a neighbouring right, since they were satisfied with their potential status of contractual assignees of authors' rights.

It appeared more than necessary after 35 years of cohabitation with the Rome Convention which protected only a limited number of rights, essentially in the audio domain, to adopt a new international instrument protecting performances, including those in the audiovisual domain.

Once again, the delegation of the United States, propelled by the audiovisual industry's interest group of the battled against a majority of states, who were of the opinion that such protection should be granted to performers, independently of the nature of their interpretations.

To the great disappointment of performers, this US influence on the adopted Treaty proved strong enough to restrict its scope only to performances fixed on a phonogram with the exception of the exclusive right to authorize the fixation and the broadcasting and the communication to the public of unfixed performances (Article 6).

Nevertheless, the Diplomatic Conference adopted on 20 December 1996 a “Resolution concerning audiovisual performances” which is drafted as follows:

“The Delegations participating in the Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions in Geneva,
Noting that the development of technologies will allow for a rapid growth of audiovisual services and that this will increase the opportunities for performing artists to exploit their audiovisual performances that will be transmitted by these services;
Recognizing the great importance of ensuring an adequate level of protection for these performances, in particular when they are exploited in the new digital environment, and that sound and audiovisual performances are increasingly related;
Stressing the urgent need to agree on new norms for the adequate legal international protection of audiovisual performances;
Regretting that in spite of the efforts of most delegations, the WIPO Performances and Phonograms Treaty does not cover the rights of performers in the audiovisual fixations of their performance,
Call for the convocation of an extraordinary session of the competent WIPO Governing Bodies during the first quarter of 1997 to decide on the schedule of the preparatory work on a protocol to the WIPO Performances and Phonograms Treaty , concerning audiovisual performances, with a view to the adoption of such protocol not later than in 1998.”

We totally support the declarations and (good) intentions contained in this resolution. Beyond this affirmations, we note that the calendar was ambitious a it foresaw the adoption of a protocol no later than in 1998.

2.
It is interesting to look at the work that has been done in order to produce such a protocol.

Various working meetings of the Committee of Experts, now known as the Standing Committee, have been held on this issue of the rights of performers in the audiovisual field.

There is still significant opposition among States on a certain number of essential points.

For instance, several states, amongst which the United States, propose a definition of performers which is different from the definition adopted in Article 5 of the Treaty of 1996 in order to exclude the “walk on” performers or extras from protection.

Another point of extreme importance is whether or not the future instrument will contain contractual provisions concerning the transfer of rights. In this case also, several states, amongst them the United States, propose, against the opinion of other states notably European, that the instrument includes a presumption of transfer of rights of the performers to the audiovisual producers.

This type of provision, very unfavorable for performers as it organizes the quasi systematic transfer of performers' rights to producers, exists in a certain number of countries.

Moreover the content of the protection remains to be determined.

It seems agreed that several rights included in the Treaty of 1996 can be taken up (again) in a new instrument concerning the audiovisual field (reproduction, distribution, rental, making available). The situation seems more delicate with regard to the broadcasting and the communication to the public of audiovisual fixations of performances of performing artists.

On this point, proposals including exclusive rights to the benefit of performers (but with a presumption of transfer of rights to the producers) conflict with the possible application “mutatis mutandis” of Article 15 of the WPPT. It would be convenient in the latter case to determine how to implement a right of equitable remuneration for the broadcasting and the communication to the public applying not to phonograms published for commercial purposes but to audiovisual fixations, videograms, which are not subject to exploitation only in their published form.

Finally, these elements condition the coming debate on national treatment.

The United States of America and some other states already want complete national treatment, independently of the conventional minimum to be included in the future instrument. This opinion is not shared by numerous other states, notably the European States.

Moreover, as opposed to what is sometimes stated by some participants to the Diplomatic Conference of 2000, no formal agreement was then reached among States on several of the points or provisions under discussion.

Therefore discussions will have to be reopened on all the points raised at the conference.

A Diplomatic Conference is not envisaged for the time being and it will in any case not take place before 2006.