The vibrant music of Western Hemisphere is widely recognized as one of the great contributions of our peoples to global society. Yet our ability to continue creating and offering this magnificent music is under threat today like never before. The collective output of our songwriters, performers, musicians, technicians and producers is being pirated on a massive scale that, unless adequately addressed, could fundamentally undermine our hemispheric cultural treasure. This is not an issue of one or just a few of our countries-it affects us all.

The victims of piracy include the artists whose creativity gets no reward; governments who lose hundreds of millions of dollars in tax revenues; economies that are deprived of new investments; consumers who get less diversity and less choice; and record producers who, due to rampant theft, have less money to invest in the development of new talent.

The greatest victim of piracy is local culture. Record companies throughout the hemisphere invest hundreds of millions of dollars-up to 15 percent of turnover in some countries-in new talent. This investment has risen steadily over the last decade, and local repertoire accounts for nearly 70 percent of the global music market. Unless investment is compensated, it will dry up, and along with it will perish the fantastic diversity of music that has been our region’s legacy.

In addition, piracy nurtures organized crime. Very often the music that is paid for pirate CDs will be channeled into drug trade, money laundering or other forms of serious organized criminal activity.

For these reasons we call upon ALCA/FTAA negotiators to ensure that chapter on intellectual property incorporates strong substantive standards and enforcement mechanisms so that we can turn the tide on the destructive forces of music piracy. These negotiations offer an unparalleled opportunity to address current problems affecting cultural output and diversity through the articulation of a strong and unambiguous commitment to fighting piracy, and to pave the way for e-commerce in cultural materials to prosper by creating standards that will ensure the protection of cultural materials in the on-line environment. Creators from lesser-developed nations have a particular stake in the outcome of these negotiations as success, or failure, to create and enforce binding rules that foster creativity will determine whether the economics of the industry permit investment in the creation and distribution of their work.

Here are examples of how ALCA/FTAA can help:

º     A right of reproduction for works and objects of neighboring rights, including specific and express reference to the
       right including permanent and temporary copies.

º     An exclusive right for authors, phonogram producers and performers to control the digital transmission of their
      works, phonograms and performances, including but not limited to on-demand transmissions.

º    A right of communication to the public that gives performers and phonogram producers the exclusive right to authorize
     or prohibit the communication to the public of their performances and phonograms.

º    A right of distribution as provided in WCT Article 6 and WPPT Article 8.

º    A right of importation

º    The term of protection of 95 years from the first authorized publication or, failing such authorized publication, 120 years
      from the year performance or phonogram was created.

º    Provisions must be included which make illegal the circumvention of technological protection measures, as well as
     the making available of circumventing devices. Corresponding adequate and effective legal remedies, both criminal
     and civil, must be incorporated into the enforcement text.

º    Legal remedies should be afforded to protect rights management information from unauthorized alteration and
     removal, consistent with the WCT and the WPPT.

º    The principle of full national treatment, without exception or derogation, should be the norm in the FTAA IPR Chapter.
 

º    Contractual rights: Any person acquiring or holding any economic rights should be able to freely and separately
      transfer such rights by contract.

º    Retroactivity provisions: Each country should apply the provisions of Article 18 of the Berne Convention for the Protection
     of Literary and Artistic Works (and Articles 9.1 and 14.6 of the TRIPS Agreement) to the subject matter, rights and
     obligations provided for in this FTAA.

Effective criminal remedies are essential against those who violate these rights on a commercial scale-including offenses on the internet that do not involve any exchange of money but which entail the offering of unauthorized materials to a broad audience. Customs and police authorities in each country must be able to initiate criminal actions ex officio, without the need for a complaint by a private party or right holder. Governments should ensure that piracy is both punishable in law, and punished in practice, by effective criminal sanctions including imprisonment, and should ensure that copyright and neighboring rights offenses are treated as serious crimes. Finally, countries should provide clear and workable mechanisms so that rightholders will be able to enforce their rights against infringers. Remedies must provide deterrents to further infringements.

Submitted by:

Neil Turkewitz
Executive Vice President, International;
Recording Industry Association of America (RIAA),

On behalf of the following:
Gabriel Salcedo
Gerente General,Camara Argentina de Productores e Industriales Fonograficos (CAPIF)

Paulo Rosa
Secretario General,
Asociacion Brasilera de Productores de Discos (ABPD)

Brian Robertson
President,
Canadian Recording Industry Association (CRIA)

Francisco Nieto
Gerente General,
IFPI Chile

Orlando Parra Castro
Presidente Ejecutivo,
Asociacion Colombiana de Industriales Fonograficios (ASINCOL)

Gonzalo Jimenez
Presidente,
Asociacion Ecuatoriana de Productores de Fonogramas (ASOTEC)

Fernando Hernandez
Director General, Asociacion Mexicana de Productores de Fonogramas y Videogramas (AMPROFON)

Catalina Barraza
Director General,
Sociedad Mexicana de Productores de Fonogramas (Somexfon);

Myrna Lee Luque
Presidente,
Comite Peruano de Productores Fonograficos (COPERF)

Guillermo Bracamonte
Director General,
Asociacion Peruana de Productores de Fonogramas (UNINPRO)

Guzman Fernandez Avila
Director Ejecutivo,
Camara Uruguaya Del Disco (CUD)

Camilo Muedra
Presidente,
Asociacion Venezolana de Productores de Fonogramas (APROFON)