The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention that deals with the protection of works and the rights of their authors in the digital environment. Any Contracting Party even if it is not bound by the Berne Convention must comply with the substantive provisions of the 1971 (Paris) Act of the Berne Convention for the Protection of Literary and Artistic Works (1886). Further, the WCT mentions two subject matters to be protected by copyright:
- computer programs, whatever the mode or form of their expression; and
- compilations of data or other material (“databases”), in any form, which, by reason of the selection or arrangement of their contents, constitute intellectual creations. (Where a database does not constitute such a creation, it is outside the scope of this Treaty.)
The WIPO Copyright Treaty was enacted by a consensus of over 100 member states of the European Union (EU). Adopted in Geneva, Switzerland on December 20, 1996, WCT supplements the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention). At that time, the Berne and Rome Convention had not been modified for 25 years.
WCT was created to address changes in digital technology and communications, particularly the distribution of digitally protected works over the Internet. Known as the “Internet treaties,” WCT was enacted along with the WIPO Performances and Phonograms Treaty (WPPT) to respond to new marketplace and technology developments.
RIGHTS GRANTED TO AUTHORS
Apart from the rights recognized by the Berne Convention, the Treaty also grants:
- the right of distribution;
- the right of rental; and
- a broader right of communication to the public.
- The right of distributionis the right to authorize the making available to the public of the original and copies of a work through sale or other transfer of ownership.
- The right of rentalis the right to authorize commercial rental to the public of the original and copies of three kinds of works:
(i) computer programs (except where the computer program itself is not the essential object of the rental);
(ii) cinematographic works (but only in cases where commercial rental has led to widespread copying of such works, materially impairing the exclusive right of reproduction); and
- works embodied in phonograms as determined in the national law of Contracting Parties (except for countries which, since April 15, 1994, have had a system in force for equitable remuneration of such rental).
- The right of communication to the publicis the right to authorize any communication to the public, by wire or wireless means, including “the making available to the public of works in a way that the members of the public may access the work from a place and at a time individually chosen by them”. The quoted expression covers, in particular, on-demand, interactive communication through the Internet.
LIMITATIONS AND EXCEPTIONS
Article 10 of the WCT incorporates the so-called “threestep” test to determine limitations and exceptions, as provided for in Article 9(2) of the Berne Convention, extending its application to all rights. The Agreed Statement accompanying the WCT provides that such limitations and exceptions, as established in national law in compliance with the Berne Convention, may be extended to the digital environment. Contracting States may devise new exceptions and limitations appropriate to the digital environment. The extension of existing or the creation of new limitations and exceptions is allowed if the conditions of the “three-step” test are met.
The term of protection must be at least 50 years for any kind of work.
The enjoyment and exercise of the rights provided for in the Treaty cannot be subject to any formality.
The Treaty obliges Contracting Parties to provide legal remedies against the circumvention of technological measures (e.g., encryption) used by authors in connection with the exercise of their rights, and against the removal or altering of information, such as certain data that identify works or their authors, necessary for the management (e.g., licensing, collecting and distribution of royalties) of their rights (“rights management information”).
The Treaty obliges each Contracting Party to adopt, in accordance with its legal system, the measures necessary to ensure the application of the Treaty. In particular, each Contracting Party must ensure that enforcement procedures are available under its law so as to permit effective action against any act of infringement of rights covered by the Treaty. Such action must include expeditious remedies to prevent infringement as well as remedies that constitute a deterrent to further infringement.
The Treaty establishes an Assembly of the Contracting Parties whose main task is to address matters concerning the maintenance and development of the Treaty. It entrusts to the Secretariat of WIPO the administrative tasks concerning the Treaty.
The Treaty was concluded in 1996 and entered into force in 2002.
The Treaty is open to States members of WIPO and to the European Community. The Assembly constituted by the Treaty may decide to admit other intergovernmental organizations to become party to the Treaty. Instruments of ratification or accession must be deposited with the Director General of WIPO.