BLACA/IPI SEMINAR 2011The 50th Anniversary of the Rome

Convention

From Copyright to Neighbouring Rights and Related Rights; from the Rome Convention to TRIPs and the WPPT

Some Reflections

Dr Gillian Davies5 October 2011

„This nobly-motivated and ambitious international instrument was years ahead of its time, but it has retained its vitality“

Barbara Ringer, 1978

From Copyright to Neighbouring Rights & Related Rights - a Pioneer Convention

• Pioneer: RC broke new ground; countries had to legislate minimum rights before adhering; recognition of rights grew slowly

• After 20 years in 1981 23 MSs; over 50 States had legislated, half for first time but national legislation was inconsistent as regards beneficiaries: 84 protected producers of phonograms; 68 broadcasting organisations; 35 performers

• Flexible: RC does not specify nature of rights it protects; States free to protect by copyright legislation, neighbouring/related rights or penal measures; open to BC & UCC MSs; flexible also in providing options

• Balanced: the balance of interests among the 3 beneficiaries regarded by Governments and beneficiaries alike as the cornerstone of the Convention

From Copyright to Neighbouring Rights and Related Rights - a Pioneer Convention

• Pioneer but based on technology of 1961; thus in time RC no longer corresponded to requirements

• Obstacles to reform of RC– Fear that balance of interests achieved in Rome would be at risk– Opposition to the RC from broadcasters and authors in 1970s /1980s

in particular to Art. 12 RC (performance rights)– Arguments about nature of rights:

• Copyright protection in common law countries for producers and broadcasters• Neighbouring rights (if any) in civil law countries for all 3 beneficiaries; no

protection at all until 1980s/early1990s in key European countries

From Copyright to Neighbouring Rights & Related Rights: Shifting Opinions & Attitudes

• Gradual recognition of need for RC rights encouraged by WIPO Model Law 1974 and Recommendations to Govts 1979

• Adoption of protection for beneficiaries of RC by France in 1985 and other civil law countries in 1980s

• EU Commission consultations in 1980s leading to the adoption in 1992 of the Rental and Related Rights Directive providing for RC rights and rental and lending rights for performers and film and phonogram producers

• EU original term of protection 20 years but increased to 50 by Term Directive in 1993/70 years in 2011

From the Rome Convention to TRIPs &WIPO Performers and Phonograms Treaty

• EU Directives 1992/1993 represented a breakthrough, recognising RC principles and 50 years protection

• By 1994, 8 of then 9 EU MSs had ratified the RC (exception Belgium)

• Subsequent EU Directives applied mutatis mutandis to related rights gradually increasing level of protection

• TRIPs incorporated RC rights and introduced rental rights for producers of phonograms and any other right holders in phonograms under national law (but no Art. 12 rights)

• TRIPs provided 50 years protection for performers & producers

From the Rome Convention to TRIPs &WIPO Performers and Phonograms Treaty

• WPPT Protection is RC Plus– Moral rights for performers (aural performances)– Rights of reproduction, distribution, rental and making

available for performers and producers– 50 years protection– Protection of TPMs and rights management information

Except for Status Quo on Art. 12 RC

From the Rome Convention to TRIPs &WIPO Performers and Phonograms Treaty

• Neither TRIPs nor WPPT dealt with:– Performer’s rights in audiovisual performances

• WPPT also left for future resolution:– Exclusive rights for performers and producers performance

rights (only provides for equitable remuneration which MSs may reserve altogether)

– Updated protection of broadcasters

• Very recent progress in WIPO made on audiovisual performances and broadcasters

Conclusions

• RC was indeed pioneer and catalyst for development of rights of performers and producers of phonograms

• It formed a bridge between common law and civil law countries for international protection of its beneficiaries

• It led to entrenchment of the concept of authors’ rights and copyright versus neighbouring rights (WIPO term) or related rights (preferred term used by TRIPs and EU)

• Latter distinctions no longer of great importance because there is new consensus that all the right holders deserve high standard of protection

Reading Material

• Copinger and Skone James on Copyright, 16th ed. Ch. 23

• WIPO Model Law on the RC 1974 (Copyright, 1974 at 16)

• IGC Rome Convention Recommendations 1979 (Copyright 1979 at 105)

• ‘Some Reflexions on the Rome Convention’, JF da Costa (Copyright 1976 at 80)

• ‘The Rome Convention 1961- Development and Prospects’, G Davies (EIPR 1979 at 154)

• ‘Twenty Years of the Rome Convention: Some Personal Reflections’, E Thompson (Copyright 1981 at 270)

• ‘The Convergence of Copyright and Authors’ Rights-Reality or Chimera’, G Davies (I.I.C. 1995 at 964)

THANK YOU FOR YOUR ATTENTION!

Dr Gillian Davies

Barrister and Visiting Professor at QMIPRIP

gdavies@hogarthchambers.com

© gdavies2011