The WIPO Internet Treaties: WIPO Copyright Treaty, 1996 and WIPO Performances and Phonograms Treaty, 1996

Law of Intellectual Property and Information Technology · Unit V · Topic 12 of 12 · 6 min read

Why the 1996 Diplomatic Conference was called, the WCT's provisions on programmes, databases, distribution, rental, making available, the three-step test, TPMs and RMI with the agreed statements, the WPPT's rights for performers and phonogram producers, implementation in the US, EU and India's 2012 amendment, and the critique of the digital agenda.

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On this page

1. Background
2. The WIPO Copyright Treaty
3. The WIPO Performances and Phonograms Treaty
4. Implementation
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The two treaties, adopted in Geneva on 20 December 1996, did three things for the digital environment: confirmed that the reproduction right applies to digital storage, created the making available right for on-demand access, and required legal protection for technological protection measures and rights management information. The WCT covers authors; the WPPT covers performers and producers of phonograms. India acceded in 2018, after bringing its law into line through the Copyright (Amendment) Act, 2012. The syllabus calls the second treaty the “Performer’s and Phonograms Treaty”; its correct name is the WIPO Performances and Phonograms Treaty.

1. Background

The Berne Convention was last revised in Paris in 1971, before personal computers or the internet. TRIPS (1994) added computer programmes, compilations and rental, but did not deal with transmission over networks. WIPO committees prepared texts from the early 1990s, and the Diplomatic Conference of December 1996 adopted the WCT and the WPPT, together called the WIPO Internet Treaties. A proposed treaty on databases was not adopted. The WCT entered into force in March 2002 and the WPPT in May 2002.

2. The WIPO Copyright Treaty

Article 1: relation to Berne. The WCT is a special agreement under Article 20 of the Berne Convention. Parties must comply with Articles 1 to 21 and the Appendix of Berne, whether or not they are members of Berne.
Article 2: scope. Protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
Article 4: computer programmes are protected as literary works under Berne Article 2, whatever the mode or form of expression.
Article 5: compilations of data (databases) are protected if by reason of selection or arrangement they are intellectual creations; the protection does not extend to the data.
Article 6: distribution right, the exclusive right to authorise making available the original and copies through sale or other transfer of ownership. Parties are free to decide the conditions of exhaustion.
Article 7: rental right for computer programmes, cinematographic works and works embodied in phonograms, with exceptions where the programme is not the essential object of the rental.
Article 8: right of communication to the public, including making works available so that members of the public may access them from a place and at a time individually chosen by them. This is the on-demand or “making available” right that covers uploading to a website or streaming service.
Article 9: photographs receive the general term, removing Berne’s shorter minimum for photographs.
Article 10: limitations and exceptions are confined to the three-step test: certain special cases, which do not conflict with a normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of the author.
Article 11: technological measures. Parties must provide adequate legal protection and effective remedies against circumvention of effective technological measures used by authors in connection with their rights.
Article 12: rights management information. Remedies against knowingly removing or altering electronic rights management information, or distributing works knowing it has been removed.

The agreed statements

On Article 1(4): the reproduction right in Berne Article 9 applies fully in the digital environment, and storage of a protected work in digital form in an electronic medium is a reproduction.
On Article 8: the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication. This is the origin of intermediary safe harbours.
On Article 10: parties may carry forward and extend into the digital environment existing exceptions, and devise new ones appropriate to digital networks.

3. The WIPO Performances and Phonograms Treaty

The WPPT updates the Rome Convention (1961) for performers and producers of phonograms, but not broadcasters. It protects only sound: audiovisual performances were left out, and were covered later by the Beijing Treaty on Audiovisual Performances (2012).

Subject	Performers	Phonogram producers
Moral rights	Art. 5: to be identified and to object to distortion prejudicial to reputation	None
Unfixed performances	Art. 6: broadcasting, communication to the public, fixation	—
Reproduction	Art. 7	Art. 11
Distribution	Art. 8	Art. 12
Rental	Art. 9	Art. 13
Making available	Art. 10	Art. 14
Remuneration for broadcasting	Art. 15: single equitable remuneration for direct or indirect use of commercial phonograms for broadcasting or communication to the public; reservations allowed
Term	Art. 17: at least 50 years from fixation (performers) or publication (producers)

Articles 16 (limitations, three-step test), 18 (technological measures), 19 (rights management information) and 20 (no formalities) mirror the WCT.

4. Implementation

United States: the Digital Millennium Copyright Act, 1998, which went further than the treaties by banning circumvention of access controls and circumvention devices.
European Union: the Information Society Directive (2001/29/EC), with an exclusive making available right (Article 3), a closed list of exceptions (Article 5) and protection of technological measures (Article 6).
India: the Copyright (Amendment) Act, 2012 aligned the law, and India acceded to both treaties in 2018, with effect from 25 December 2018.
- Section 2(ff) defines communication to the public to include making available at times and places chosen individually.
- Section 14 already treated storage by electronic means as reproduction.
- Section 38A gives performers exclusive rights, including to make a recording, communicate it and sell or rent copies; section 38B gives performers moral rights; the term is fifty years (section 38).
- Sections 65A and 65B implement WCT Articles 11 and 12 and WPPT Articles 18 and 19, in a form narrower than the DMCA.
- Transient storage exceptions in section 52(1)(b) and (c) apply the agreed statement on Article 8.

Whether India’s statutory broadcasting licence in section 31D extends to internet streaming was disputed after India’s accession. In Tips Industries v. Wynk Music (Bombay High Court, 2019) the court held that it does not, so that online streaming services must take voluntary licences. The point illustrates the making available right in practice: on-demand access is a distinct exclusive right, not broadcasting.

Critique. Pamela Samuelson’s account of the US “digital agenda” at the 1996 conference describes how the US proposals, which would have treated even temporary copies in memory as reproductions and given broad protection to databases, were cut back by developing countries, libraries and the technology industry. The treaties that resulted are a compromise: strong new rights, but with the agreed statements allowing exceptions and intermediary protection. The continuing objection is to anti-circumvention: legal protection for code can override the exceptions, which is why India ties section 65A to intent to infringe and preserves acts not prohibited by the Act. The Marrakesh Treaty (2013), which India was the first to ratify, shows a later shift towards treaties on exceptions.

How this is examined

Likely long questions: “Critically examine the salient features of the WIPO Copyright Treaty, 1996.” “Discuss the protection of performers and producers of phonograms under the WPPT, 1996.” “How far has Indian law implemented the WIPO Internet Treaties?”

Likely short notes: making available right; three-step test; technological protection measures; rights management information; agreed statements to the WCT; moral rights of performers.

In a long answer, give the background, the provisions by article, the agreed statements, and then Indian implementation section by section. Examiners reward the link between Article 8 and section 2(ff), and between Articles 11–12 and sections 65A–65B.