Backgrounder to the WIPO Treaties Process

The WIPO Treaties were adopted in Geneva in 1996 to provide a substantial legal basis for healthy electronic commerce with a particular benefit to the music industry.

Canada signed its intent to ratify the Treaties in 1997, but to date has not passed implementing legislation to reform the Copyright Act and allow Canada to ratify the Treaties. Meanwhile, over 60 countries worldwide, including all of Canada's major trading partners (including the US, most of the European Union, Japan and Mexico) have implemented the WIPO Treaties, while Canada has been relegated to the sidelines.

What Are The WIPO Treaties?

Piracy of sound recordings includes three (3) specific types of infringing activities - piracy, bootlegging and counterfeiting

The "WIPO Treaties" refer to two international Treaties adopted by the UN's World Intellectual Property Organization (WIPO) in December 1996. These Treaties reflect international consensus on the protections that copyright and related rights owners need at the beginning of the new millennium.

The Treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT):

• Confirm protection of traditional copyrighted materials and distribution mechanisms;
• Clarify how copyright and related rights apply in the electronic environment;
• Protect against the hacking of technical protections applied to copyrighted products

The WCT protects authors, composers and other creators of literature, art, music, films, software and other such creative works.

The WPPT protects producers of 'sound recordings' including music CDs, cassettes and other recordings. It also covers performers, such as singers and musicians.

Currently, at least 44 countries have ratified the Treaties including the United States.

Why Are The WIPO Treaties Important?

Like all copyright and related protections, the WIPO Treaties provide important economic incentives to creative individuals and companies. They promote national culture, and discourage counterfeiting and piracy. The Treaties also provide a substantial legal basis for healthy electronic commerce.

• Economic Incentive: The Treaties, and copyright law generally, provide creative people 'exclusive rights' to determine whether and how their works are copied and distributed. This ensures that they enjoy the economic rewards of their creativity, which serves as a powerful incentive to produce and distribute their creative products.

• Cultural protection: Copyright also encourages local and national expressions of culture. Inadequate protections deprive local musicians, producers and other creative people of adequate compensation, and subject them to unfair competition from counterfeit copies of international products.

• Piracy deterrent: Counterfeiting and other forms of piracy (unauthorized copying and distribution) have become a major criminal enterprise. The global pirate music market is estimated to have exceeded 2 billion units in 2003, worth an estimated US$4.75. This not only hurts rights owners, but also destroys legitimate jobs and deprives governments of substantial tax revenues. The WIPO Treaties and other copyright laws provide the principal legal tools for fighting piracy.
  
  The widespread accessibility of pirate recordings of music available for downloading from the internet and the resulting precipitous decline in legitimate retail sales deprives federal and provincial governments of tens of millions of dollars in retail sales taxes. The tandem job losses result in lost income taxes.

• E-commerce engine: Electronic commerce in copyrighted products requires a healthy trading environment where only legitimate copies of works are transmitted, under the terms permitted by the copyright owner. The WIPO Treaties provide rights owners such legal certainty. As the Treaties are adopted worldwide, they will ensure consistent protections and prevent 'piracy havens' from developing across the wide reach of the Internet.
  
  National protection is not enough to obtain the benefits of electronic commerce. These treaties are the evolution of copyright protection begun in the 19th century with the Berne Convention and followed by the Universal Copyright Convention, the Rome Convention and the Geneva Phonograms Convention in the 20th century. The WIPO Treaties will only benefit Canadian producers if Canada is a contracting party of both WIPO Treaties.
  
  According to the Ipsos-Insight study released in January 2004, "The Face of the Web 2003", Canada leads the world with 71% of its adult citizens accessing the Internet. Canada is also a leader with respect to broadband use according to comScore Media Metrix that reports that broadband users represent 53.6% of the Canadian online population. In total more than 16 million adult Canadians have Internet connections to access a global infrastructure of information and entertainment but there will be no corresponding legal protection for Canadian content creators without WIPO ratification, which would extend the international benefits of the treaties to all member countries but not to non-member countries.

What Do The WIPO Treaties Require?

The WIPO Treaties ensure authors, producers and performers a minimum set of rights in the traditional and electronic worlds, and provide legal tools to prevent hacking of technological 'locks' applied to their works.

Most countries have found that only a limited number of copyright-law changes are needed in order to comply with the WIPO Treaties. This largely depends on how well a country's law already deals with electronic copying and distribution.

In brief, the Treaties require copyright laws to provide many protections already afforded by national copyright law to authors, 'phonogram' producers and performers:

• Protection of literary and artistic works, software, databases, sound recordings and non-audiovisual performances;

• Rights to control reproduction, fixation of performances, physical distribution, and rental; and

• Authorization or remuneration for public communication.

In addition, the Treaties require authorization by the author, producer of the sound recording and performer before a work can be 'made available' by interactive communication, such as when the work is to be posted on the Internet.

The Treaties give non-audiovisual performers the 'moral right' reasonably to be identified as the performer, and to prevent modifications that damage their reputation.

Finally, the Treaties require protection against certain acts of circumvention or removal of technological protection measures (access or copy controls), or rights-management information (information about rights ownership or licence terms), that rights owners may apply to their works or recordings.

Frequently Asked Questions

Question: Is membership of any other treaty necessary before joining the WIPO Treaties?

No. The WIPO Treaties incorporate Berne Convention obligations by reference, contain Rome-Convention compatible rules for phonograms, and require enforcement procedures that permit WTO-TRIPs-standard 'deterrence'.

Question: What provisions typically need to be adopted in implementing the WIPO Treaties?

Most countries have had to implement new provisions on technological protections, rights-management information, and the 'making available' right. Some have also had to add moral rights for non-audiovisual performers.

Question: Do the Treaties require treatment of service-provider liability?

No. The issue of third-party 'contributory' or 'accessory' liability is not dealt with in the treaties, and will depend on national law. Some countries have dealt with this issue in their implementing legislation (e.g. USA), and some have not (e.g. Japan).

Question: When will the Treaties come into force?

The WCT entered into force on March 6, 2002 and the WPPT entered into force May 20, 2002.

Prompt Ratification Is Needed

The WIPO Treaties guide the way for adapting copyright to the age of electronic commerce. The Treaties are critical for creating a legal environment in which rights owners can protect against infringement in information networks, and develop new, more sophisticated products and licensing options.

The Treaties also provide a strong practical support for intellectual property rights by encouraging and protecting the use of technological measures in controlling and administering these rights.

Undoubtedly the single most important task for governments that want to make their copyright and related-rights regimes suitable for the age of electronic commerce is prompt ratification and faithful implementation of both WIPO Treaties.

Most significantly, Canada has NOT ratified the Treaties. Despite being "signed" by the Ministers of Heritage and Industry in 1997 they still have not been ratified.