FTAA - Free Trade Area of the Americas
Draft Agreement
Chapter on Intellectual Property Rights
(Continuation)
Article XX. [Related rights] [Limitations or exceptions to Related rights]
[1. The protection provided for related rights shall in no way affect the protection of the copyright in scientific, artistic or literary works.
None of the provisions contained in this Chapter may be interpreted in such a manner as would diminish the said protection.
In the event of conflict, the author's best interests shall always prevail.]
[1. Protection [offered by provisions relating to] [provided under this chapter, with regard to]
[the rights of] performers, [of] producers of phonograms and [of] broadcasting organizations, [shall keep intact and] shall not in any way affect
[the economic and moral rights of the authors of] [the protection of copyrights on] literary or artistic works
[, nor shall it be interpreted to the detriment of such protection.] [Consequently, none of the provisions contained in this Agreement can be interpreted to the detriment of the respective protection.] ]
[2. With respect to related rights, each Party may establish limitations or exceptions according to the provisions of the Rome Convention.]
[2. Parties may in their domestic legislation provide for the same kinds of limitations or exceptions with regard to the protection of performers, producers of phonograms and broadcasting organizations, as they provide for in their national legislation in connection with the protection of copyright in literary and artistic works.
Parties shall confine limitations or exceptions to the rights provided for in this Title to certain special cases that do not conflict with a normal exploitation of the phonogram and do not unreasonably prejudice the legitimate interests of the performers, producers of phonograms and broadcasting organizations.]
[2.Each Party shall confine limitations or exceptions to the rights established in this article to certain special cases that do not conflict with a normal exploitation of the phonogram and do not unreasonably prejudice the legitimate interests of the right holder, to the extent permitted by the Rome Convention.]
[Obligations Pertaining Specifically to Related Rights
Each Party shall accord the protection provided under this Agreement to the performers and producers of phonograms who are nationals of other Parties and to performances or phonograms first published or fixed in a country Party to this Agreement. A performance or phonogram shall be considered first published in any Party in which it is published within 30 days of its original publication.8
Each Party shall provide to performers the right to authorize or prohibit (a) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance, and (b) the fixation of their unfixed performances.
With respect to all rights of performers and producers of phonograms, the enjoyment and exercise of these rights provided for in this Agreement shall not be subject to any formality.]
Article XX. Rights of Performers
[1. In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.
The provisions of Article 14(6) of the TRIPS Agreement shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms.]
[Each of the Parties shall grant to performers, exclusive right to undertake or authorize the following acts:
1. Broadcasts of their performances, except when such broadcast:
a) Is based on the fixation of a performance and the work transferred should appear with the signature of the author, or his or her pseudonym, the transferee may not modify it; if the editor or owner of the communications medium changes it without the consent of the transferor, the latter may request insertion of full and faithful diffusion of the article transferred, without prejudice to his or her eventual right to claim compensation. When the article transferred should appear unsigned by the author, the editor or owner of the communications medium concerned may make changes or modifications of form, without the consent of the transferor.
b) Is a rebroadcast authorized by the broadcasting organization that was the first to broadcast the performance;
2. Communication to the public of their performances, except when such communication:
a) Is based on a fixation of a performance; and
b) Is based on a broadcast of a performance.
3. Fixation of their unfixed performances;
4. Reproduction of a fixation of their performances;
5. The first distribution to the public of a fixation of their performances, by sale or any other form of ownership transfer;
6. Rental or loan to the public of a fixation of their performances; and,
7. Making available to the public, by wire or wireless means, of their performances fixed in a phonogram, such that anyone may access them from a place and at a time individually chosen by them.]
[1. Performers have the exclusive right to authorize or prohibit:
a) the fixation of their performance;
b) the reproduction and public performance of their performance or fixed performance;
c) the broadcasting of their fixed or unfixed performance;
d) the communication to the public of their performances in such a way that any person may access them from a place and a time individually chosen by them;]
[1. Each Party shall grant performers [the rights established in the Rome Convention. This shall include] the right to authorize or prohibit:
a) the fixation of their unfixed performances or the reproduction of such fixation;
b) communication to the public, broadcast and rebroadcast by wireless means [of their performances]; and,
c) any form of use of their performances.
Paragraph 1 shall not apply once a performer has consented that his performance be incorporated into a visual or audiovisual fixation.]
[Those rights not explicitly transferred shall be considered as reserved for the performer.]
[1. Performers, or their successors in title, shall have the exclusive right to:
a) authorize or prohibit the fixation, reproduction or public communication of their interpretations or performances by any means or procedure.
b) Performers shall also have the moral right to have their name or pseudonym associated with their interpretations and to prevent any deformation of the work that jeopardizes its integrity or reputation. ]
[1. Economic Rights of Performers in their Unfixed Performances
Performers shall enjoy the exclusive right of authorizing, as regards their performances:
a) the broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance; and
b) the fixation of their unfixed performances.
Right of Reproduction
Performers shall enjoy the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in phonograms, in any manner or form.
Right of Distribution
a) Performers shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their fixed performances, through sale or other transfer of ownership.
b) Nothing in this Agreement shall affect the freedom of Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixed performance with the authorization of the performer.
Right of Rental
a) Performers shall enjoy the exclusive right of authorizing the commercial rental to the public of the original and copies of their fixed performances, as determined in the national law of Contracting Parties, even after distribution of them by, or pursuant to, authorization by the performer.
b) Notwithstanding the provisions of paragraph (1), a Party that, at the time of entry into force of the Agreement, had and continues to have in force a system of equitable remuneration of performers for the rental of copies of their performances fixed in phonograms, may 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.
Right of Making Available of Fixed Performances
Performers shall enjoy the exclusive right of authorizing the making available to the public of their fixed performances, 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.]
[2. Moral Rights
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.
2. The rights granted to a performer in accordance with paragraph (1) shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the Contracting Party where protection is claimed. However, those Contracting Parties whose legislation, at the moment of their ratification of or accession to this Treaty, does not provide for protection after the death of the performer of all rights set out in the preceding paragraph may provide that some of these rights will, after his death, cease to be maintained.]
[2. Performers have the moral rights of integrity and authorship of their performances, even after the transfer of the economic rights. Parties may authorize in their domestic legislation the reduction, compacting, editing or dubbing of the work under the responsibility of the producer, who shall not distort the artist’s performance.]
[3. The term of protection available [under this Agreement] to performers [and producers of phonograms] shall last at least until the end of a period of 50 years, computed from the end of the calendar year in which the fixation was made or the performance took place.]
[3. The duration of the protection granted under this chapter to performers and producers of phonograms shall not be less than 75 years from the end of the calendar year in which the fixation was made or the performance took place.]
[3. The duration of the protection granted in this chapter shall be eighty (80) years, from Jan 1 of the year following the performance, in the case of performances that have not been fixed, or from the date of publication, when the performance is recorded in a sound or audiovisual physical support.]
Article XX. [Protection of Audiovisual Performers
Parties shall provide for protection of audiovisual performers as determined by the relevant international
instrument.]
Article XX. Rights of Producers of Phonograms
[1. Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect
reproduction of their phonograms.
The provisions of Article XX in respect of computer programs shall apply
mutatis mutandis
to producers of phonograms and any other right holders in phonograms as determined in a Party’s law. If at the time of entry into force of this agreement, a Party has in force a system of equitable remuneration of right holders in respect of the rental of phonograms, it may maintain such system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders.]
[1. Each of the Parties shall grant to phonogram producers the exclusive right to authorize or prohibit: reproduction, whether direct or indirect, or communication and distribution to the public of the original and copies of their phonograms, by sale or transfer of ownership, rental, loan, or importation, making said phonograms available to the public by any means, such that members of the public may access them from a place and at a time individually chosen by them; or any other form of using their phonograms.]
[1. Producers of phonograms have the exclusive right to authorize or prohibit:
a) direct or indirect, total or partial reproduction of their phonograms;
b) distribution through sale of copies of the reproduction;
c) the making available to the public of their phonograms in such a way that any person may access them from a place and a time individually chosen by them. ]
[1. Each Party shall grant producers of phonograms the right to authorize or prohibit:
a) direct or indirect [,total or partial,] reproduction of their phonogram;
b) importation into its territory of copies of phonograms made without the authorization of the producer;
c)The first public distribution of the original and each copy of the phonogram by sale, rental or otherwise [; and
d) The commercial rental of the original or of a copy of the phonogram, except where expressly otherwise provided in a contract between the producer of the phonogram and the authors of the works therein.] ]
[Each Party shall grant producers of phonograms and to all other right holders of phonograms, as determined in their legislation, the right to authorize or prohibit the commercial lease to the public of originals or copies of protected phonograms. [Nevertheless, if upon entry into force of this Agreement, a Party applies an equitable remuneration system of right holders as to the lease of phonograms, the Party may maintain such system, provided that such lease is not causing serious injury to the exclusive rights of reproduction of said right holders.] ]
[1. Producers of phonograms shall have the exclusive right to:
a) authorize or prohibit the reproduction of their phonograms. Importation and distribution of phonograms shall be permitted, provided that they are legitimate.
b) Producers of phonograms shall have the right to receive compensation for transmission of the phonogram to the public.]
[1. Right of Reproduction
Producers of phonograms shall enjoy the exclusive right of authorizing the direct or indirect reproduction of their phonograms, in any manner or form.
Right of Distribution
a) Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their phonograms through sale or other transfer of ownership.
b) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the phonogram with the authorization of the producer of the phonogram.
Right of Rental
a) Producers of phonograms shall enjoy the exclusive right of authorizing the commercial rental to the public of the original and copies of their phonograms, even after distribution of them by or pursuant to authorization by the producer.
b) Notwithstanding the provisions of paragraph (1), a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of producers of phonograms for the rental of copies of their phonograms, may maintain that system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of producers of phonograms.
Right of Making Available of Phonograms
Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their 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.
Right to Remuneration for Broadcasting and Communication to the Public
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. 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. Each Party shall provide that putting the original or of a copy of a phonogram on the market with the right holder’s consent, shall not exhaust the rental right]
[3. The term of protection conferred on the producers of phonograms may be no less than 50 years, calculated from the end of the calendar year in which the fixation has been made.]
[3. Each Party shall provide a term of protection of phonograms of at least 50 years from the end of the calendar year in which the first fixation was made.]
[3. The protection granted to the producer of a phonogram shall be eighty (80) years from January 1 of the year following the first publication of the phonogram.]
Article XX. Rights of Broadcasting Organizations
[1. “Broadcasting organizations” means radio and television companies that transmit programs to the public.
Each of the Parties shall grant to broadcasting organizations the exclusive right to authorize or prohibit;
1. The fixation of their broadcasts;
2. Reproduction of the fixation of their broadcasts without their consent, except:
a) When this is for private use
b) When short fragments have been used for the purpose of reporting on current events;
c) When it is a short-lived fixation made by a broadcasting organizations itself for its own broadcasts; and,
d) When it is to be used exclusively for teaching or research purposes.
3. The rebroadcast of their transmissions; and,
4. Communication to the public of their broadcasts, in the case of television, in public places, involving an entry fee.]
[1. Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, reproduction of fixations and retransmission by wireless means of broadcast, as well as communication to the public of television broadcasts [, without prejudice to the rights of the owners of intellectual property included in the programming.] [Where Parties do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of TRIPS Article 14 (3).] ]
[1. Each Party shall provide broadcasting organizations with the right to authorize or prohibit:
a) the fixation and reproduction of the fixations of their broadcasts;
b) retransmission, [subsequent] distribution by cable, optic fiber or any other means communication to the public of their broadcasts; and
c) reception, in relation to commercial activities, of their broadcasts.
Violation of the rights mentioned in paragraph 1 shall be the cause of civil liability, with or without penal liability, in accordance with the legislation of each Party.]
[1. Broadcasting organizations shall have the exclusive right to authorize or prohibit the fixation, reproduction and retransmission of their broadcasts by any means or procedure.]
[1. Parties shall provide for protection for broadcasting organizations as determined by the relevant international instrument.]
[1.Broadcasting organizations shall enjoy the right to authorize or prohibit:
a) the retransmission of their broadcasts by any means or process;
b) the fixing of their broadcasts on a physical medium;
c) the reproduction of a fixation of their broadcasts.
2. The broadcast referred to in the foregoing Article shall include the production of program-carrying signals intended for a broadcasting or telecommunication satellite, and also distribution to the public by a body that broadcasts or disseminates the transmissions of others received by means of such a satellite.
Limitations and Exceptions
1. Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to 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. Parties shall confine any limitations of or exceptions to rights provided for in this Agreement 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 performer or of the producer of the phonogram.]
[2. The term of protection of broadcasting organizations shall not be less than 75 years from the end of the calendar year in which the broadcast took place.]
[2. The term of protection granted [to broadcasting organizations] shall last for at least 20 years from the end of the [calendar] [civil] year in which the [broadcast] [emission] took place.]
[2. The protection granted to broadcasting organizations shall be eighty (80) years from January 1 of the year following the broadcast.]
[2. Term of Protection
1. The term of protection to be granted to performers under this Agreement 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.
2. The term of protection to be granted to producers of phonograms under this Agreement 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.
3. The term of protection of the rights of broadcasting organizations may not be less than 50 years, counted from January 1 of the year following that in which the broadcast occurred.]
Article XX. [Protection of program-carrying satellite signals]
[1. Each of the Parties shall consider the following acts to be infringements of related rights:
1. Fix and reproduce or retransmit protected broadcasts, without authorization from the broadcasting organization concerned;
2. Manufacture or import, for sale or rent, a device or medium especially conceived or adapted to render inoperable any device or medium designed to obstruct or limit reproduction of a work or impair the quality of copies made;
3. Distribute, import for distribution, broadcast, communicate or make available to the public, without authority, performances, copies of fixed performances or phonograms knowing that electronic rights management information has been removed or altered without authorization.
Any such device or medium mentioned above, or any copy thereof, in which rights management information has been suppressed or altered, shall be likened to unlawful copying or falsification of the work concerned.]
[1.Within one year from the date of entry into force of this Agreement, each Party shall make it:
a) a criminal offense to manufacture, import, sell, lease or any other commercial act that makes available a device or system that is primarily of assistance in decoding an encrypted program carrying satellite signal without the authorization of the lawful distributor of such signal; and
b) a civil offense to receive, in connection with commercial activities, or further distribute, an encrypted program carrying satellite signal that has been decoded without the authorization of the lawful distributor of the signal or to engage in any activity prohibited under subparagraph (a).
Each Party shall provide that any civil offense established under subparagraph (b) of paragraph 1, shall be actionable by any person that holds an interest in the content of such signal.]
[1. The Parties shall consider, as a civil offense, jointly or not with a criminal offense, and in conformity with their national legislation, the manufacture, importation, sale, renting or leasing or any other activity that permits the use of a device or system that is primarily of assistance in decoding an encrypted program carrying satellite signal without the authorization of the lawful distributor of that signal.]
[1. Parties shall make it:
a) a criminal offense to manufacture, assemble, modify, import, export, sell, lease or otherwise distribute a tangible or intangible device or system, knowing or having reason to know that the device or system is primarily of assistance in decoding an encrypted program-carrying satellite signal without the authorization of the lawful distributor of such signal;
b) a criminal offense willfully to receive or further distribute an encrypted program- carrying satellite signal that has been decoded without the authorization of the lawful distributor of the signal; and
c) a civil offense to engage in any activity prohibited under paragraph (a) or (b).
Parties shall provide that any civil offense established under paragraph (c) shall be actionable by any person that holds an interest in the encrypted programming signal or the content thereof.]
Article XX. [Obligations concerning technological measures]
[Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers, producers of phonograms, or broadcasting organizations in connection with the exercise of their rights under this Agreement or the Berne Convention and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law. ]
[ In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, by performers, by producers of phonograms and their successors in interest in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances and phonograms, each Party shall provide that any person who
a) knowingly, or having reasonable grounds to know, circumvents without authority any effective technological measure; or
b) manufactures, imports, distributes, offers to the public, provides or otherwise traffics in devices, products or components or offers to the public or provides services, which:
i) are promoted, advertised or marketed for the purpose of circumvention of any effective technological measure, or
ii) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure, or
iii) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measure;
shall be guilty of an offense, and shall be liable, upon the suit of any injured party, to relief by way of damages, injunction, accounts or otherwise.
c) ‘effective technological measure’ means any technology, device or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, or other subject matter, or protects any copyright or any rights related to copyright.
d) The prohibition referred to in Article 10.8(b) prohibits circumvention of technological measures and does not require an affirmative response to such measures. This Article does not require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications or computing product provide for a response to any particular technological measure. This does not provide a defense to a claim of violation of Article 10.8(b).
e) Each Party shall provide that a violation of the law implementing the provisions of this Article is independent of any infringement that might occur under the Party’s law on copyright and related rights.]
Article XX. [Obligations concerning rights management information
In order to provide adequate and effective legal remedies to protect rights management information
a) each Party shall provide that any person who without authority, and knowingly, or, with respect to civil remedies, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any copyright or related right,
i) knowingly removes or alters any rights management information;
ii) distributes or imports for distribution rights management information knowing that the rights management information has been removed or altered without authority; or
iii) distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works or phonograms, knowing that rights management information has been removed or altered without authority,
shall be guilty of an offense, and shall be liable, upon the suit of any injured party, to relief by way of damages, injunction, accounts or otherwise.
b) ‘Rights management information’ means information which identifies a work, performance, or phonogram; the author of the work, the performer of the performance, or the producer of the phonogram; or the owner of any right in the work, performance or phonogram, or information about the terms and conditions of the use of the work, performance or phonogram, and any numbers or codes that represent such information, when any of these items is attached to a copy of the work, performance or phonogram or appears in conjunction with the communication or making available of a work, performance or phonogram to the public. Nothing in this section requires the owner of any right in the work, performance or phonogram to attach rights management information to copies of it or to cause rights management information to appear in connection with a communication of the work, performance or phonogram to the public.]
Article XX. [Collective Administration of Rights
Parties shall facilitate and encourage collective administration of the rights enshrined in this Agreement., recognizing the legitimacy of societies formed for this purpose to exercise such rights, under the terms of their own statutes, and enforce them in administrative and judicial proceedings, without presenting any legal title other than those statutes. There shall be a presumption, in the absence of evidence to the contrary, that the rights so exercised have been directly or indirectly entrusted to them by their respective owners.
Parties shall establish measures to guarantee that societies are obliged to administer the rights that their owners entrust them with.
The decisions and actions of societies for the collective administration of rights shall be guided by transparency and due participation of their respective members.
Societies for the collective administration of rights shall be subject to inspection and supervision by the State.]
[Article XX
Each Party shall issue appropriate administrative or executive decrees, laws, orders or regulations mandating that all government agencies use only computer software authorized for intended use. Such instruments shall actively regulate the acquisition and management of software for such government use.]
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For the application of Article 10(12), it is understood that fixation means the finalization of the master tape. |
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