General
What is Protected?
News Stories
Broadcasters and Copyright
Nature of Protection
Fair Dealing
Music Copyright
Performers and Sports Events
Broadcasters' Rights
International Copyright
TRIPS Agreement
Record Manufacturers
Moral Rights
Performers' Rights
Cable Operators

General    1      What is copyright?    2      When does copyright arise?    3      Are ideas protected?    4      Must a word be original to copyrighted?    5      Why does copyright exist?    6      In what ways can copyright be licensed?    7      Who owns copyright? What is Protected?    8      Can a single word be protected by copyright?    9      Are facts protected by copyright? News Stories    10    If facts aren't protected by copyright, what about news events? Can a broadcaster claim exclusive rights to air a news story?    11    If news stories are not protected can another broadcaster freely air another broadcaster's news story?    12    What is the relation between copyright and news reporting?    13    Are Broadcast stations' slogans copyrightable?    14    What is meant by "copyright infringement"? Broadcasters and Copyright    15    Does copyright belong to broadcasters?    16    May programmes be recorded from television satellites?    17    Should on-line networks seek the permission of broadcasters for use of their broadcast? Nature of Protection    18    When is a work "in the public domain"?    19    How long does copyright protection last? Fair Dealing    20    What copyright works can be broadcast without payment?    21    What is "a substantial part"?    22    What is "fair dealing"?    23    What factors should be considered in determining fair use?    24    What are the most important areas of "fair dealing" for broadcasters?    25    What is "criticism and review'?    26    What constitutes "reporting of current events"? Music Copyright    27    What rights does a composer of music have to control the broadcasting of the music?    28    What rights do authors have in terms of broadcasts?    29    Do you need to secure a licence to broadcast a song as part of a television programme?    30    What is a "blanket licence"?    31    What is a music synchronization licence?    32    What is the basis for computing fees for synchronization?    33    Is a synchronization licence required for a live show?    34    If the "live" production is taped or filmed for later use, is a synchronization licence needed?    35    Whom shall broadcasters deal with for a licence to use music?    36    Are there rights which broadcasters need to secure from sound recording companies? Performers & Sports Events    37    Should royalties be paid to performers whose performances are broadcast or communicated to the public?    38    Do broadcasters need to secure a copyright licence to broadcast the recording of sports events?    39    What about a copyright licence to cover a sports event?    40    May broadcasters air or record artworks found in public places? Broadcasters' Rights    41    What rights do broadcasters have? International Copyright    42    What difference between "domestic" and "international copyright"?    43    What are the "traditional" international copyright treaties?    44    What is the Berne Convention?    45    What rights are granted to authors under the Berne Convention?    46    What is the Universal Copyright Convention?    47    What is the Rome Convention?    48    What are some rights granted to broadcasters under the Rome Convention?    49    Why are international treaties important to broadcasters? TRIPS Agreement    50    What is the TRIPS Agreement?    51    What are the reasons for TRIPS?    52    What are the main points of TRIPS? Record Manufacturers    53    What rights do record manufacturers claim?    54    How did this situation come about?    55    What are the important recent international treaties for broadcasters?    56    What are the arguments against payback by broadcasters to record co's?    57    What of the claim that royalties are passed onto the performer?    58    Record company arguments    59    What about reciprocity?    60    What options do governments have?    61    What is ABU's official view on royalty payments to record manufacturers?    62    Is any country obliged to make payments to record manufacturers if it joins an international convention? Moral Rights    63    What are moral rights? Performers' Rights    64    What are Performer's rights? Cable Operators    65    Should Cable operators be permitted to freely re-transmit programmes?      1   What is copyright?    Copyright can be loosely defined as a right to authorise the use of a copyright work in different ways. It is more than simply a "right to copy", although this is a useful working definition. But the emphasis is not so much on this right, but on the right to prevent others from unfairly taking advantage, in any way at all, of the creative work of the original owner of the copyright. So a copyright owner has the exclusive right, not only to copy the work, but to sell copies of the work, to play, perform and show the work in public, to adapt the work, broadcast it, include it in a cable programme, or authorise its adaptation or transmission on the internet.    2   When does copyright arise?    Copyright arises in most works when they are first recorded, for example, where a novelist writes the first draft of a novel, or a musician first sets out the score of a composition or tapes it. So copyright can exist in a novel, a play, a film, a newspaper article or even a letter. It also exists in music, in sound recordings, in radio and television broadcasts, in cable programmes and in computer software. And copyright exists as soon as the work is recorded. There is no need in most countries to register a work.    3   Are ideas protected?    It follows from the requirement that the "work" must be recorded that there is no copyright in an idea as such, however original it may be, until this has been done.    If I give someone the idea for a short story and a story is written based on that idea, this is not in breach of copyright as there is no copyright in an idea. Again, if an author writes an article, on golf for example, the author does not, of course, have a monopoly after that on the writing of articles about golf. The protection that exists is in respect of the skill and labour involved in the choice of words and the way in which the ideas have been expressed.    The distinction between ideas (which are not copyright), and the treatment of situations (which may be copyright), was put like this by an English Judge:    "In order to constitute an infringement, it is not necessary that the words of the dialogue should be the same: the situation and incidents, the mode in which the ideas were worked out and presented might constitute a material portion of the whole play, and the court must have regard to the dramatic value land importance of what, if anything, was taken, even although the portion might in fact be small.    On the other hand, the fundamental idea of two plays might be the same, but if worked out separately and on independent lines they might be so different as to bear no resemblance to one another."    4   Must a word be original to be copyrighted?    Yes, a requirement of copyright is that a work must be original. For example, you cannot copyright everyday expressions. However, the legal meaning of originality has nothing to do with inventiveness, novelty or inspiration. Copyright may exist in an anthology of poetry written by another person, in an item from a newspaper, in a railway timetable, in an advertisement for false teeth, a set of mathematical tables, or in a list of football fixtures. It has also been held that a television company has copyright in its list of upcoming programmes.    5   Why does copyright exist?    There are usually two reasons advanced for the existence of copyright: moral and economic. The moral argument is that the work is the personal expression of its originator's thought. He or she should, therefore, have the right to have it respected; the right to decide whether, when or how it may be produced or performed in public, and the right to object to any distortion or mutilation when the work is used. The economic argument is threefold: that copyright royalties are the "wages" of the creative worker, that the royalties act as an incentive for the production of original works, and that the diffusion of many creative works - for example, through the publication of books - would not be possible without copyright protection.    6   In what ways can copyright be licensed?    Once copyright exists in a work, the copyright owner may use his or her rights in much the same way as property. Copyright ownership is almost infinitely divisible. An author, for example, can assign the copyright in a work completely or sell the publishing rights to a book publisher, the film rights to a film company, the right to broadcast the work to a radio station and the right to adapt the work dramatically to a drama society or television company. In this way, the copyright owner can "split up" the ownership in different ways, according to the use of the work, which is authorised. Rights can be limited by time, by the geographic location of the use of the work and by language - by the right to translate works into different languages.    7   Who owns copyright?    In most cases, the author of the work is the owner. In the case of a literary work, the owner is usually the writer. In the case of sound recordings and films, "author" means the person by whom arrangements necessary for the creation of the work are undertaken - usually what we would call "the producer".    But there are important exceptions to this general rule. Where an employee makes a literary, dramatic or musical work in the course of his or her employment, that person's employer is the owner of the copyright in the work. But when is a person an employee, as distinct from an independent contractor? For broadcasters, the distinction is often easy to make. For example, a scriptwriter, producer, director, designer or studio artist who is a staff member of the organisation is under a contract of service and the copyright in his work belongs to the organisation. On the other hand, a freelancer who is employed part-time for a television series owns the copyright, unless his contract says otherwise.    Difficulties may arise, however, where, for example, a "stringer" or freelancer is employed on a regular basis but where payment depends on the extent of contributions. In order to avoid any difficulties, we should make sure that the copyright in marginal cases like this is assigned to the broadcaster or company in writing. The same precaution should be taken where an employee writes something for the broadcaster or company outside normal duties. Unless an agreement to the contrary is signed, the contractor will own the copyright in the work.    8   Can a single word be protected by copyright?    It is most unlikely that a single invented word, with no meaning in itself, would be held to be an "original literary work".    In Exxon Corporation v Exxon Insurance, the Standard Oil Company Corporation had spent "considerable time and effort" devising a word to identify itself and its subsidiaries. An insurance company adopted this name without consent. The Corporation claimed in court that the size of a literary work was immaterial and that sufficient labour had been expended in arriving at the name "Exxon" to qualify it as an original literary work.    This argument was not accepted. The Court said:    "It is a word which, though invented and therefore original, has no meaning and suggests nothing in itself Š It is not itself a title or distinguishing name and Š only takes its meaning or significance when actually used with other words, for example indicating that it is the name of a company, or in a particular juxtaposition as, for example, on goods".    9   Are facts protected by copyright?    No. Facts cannot be copyrighted. No person may claim a right to a fact. Facts do not originate with the person who "discovers" them. They are merely found and recorded. Besides, facts by themselves do not have artistic nor literary elements. It is the way the facts are expressed that attracts copyright, not the facts themselves.    10  If facts aren't protected by copyright, what about news events? Can a broadcaster claim exclusive rights to air a news story?    No. Copyright law does not prohibit any broadcaster from reporting a news story. Hence, a station may report a plan crash even as other stations air the same story.    11  If news stories are not protected can another broadcaster freely air another broadcaster's news story?    No. The way news is expressed is protected by copyright. Copyright law protects the expression of the story, the way it is reported, the style and manner in which facts are told. In short, copyright protects the way the story is told, not the story itself. This means that no broadcast organization may freely use the footage or audio of another station's broadcast news. An exception to this is where the use comes under the heading of "fair use for the purpose of reporting current events" (See question 26)    12  What is the relation between copyright and news reporting?    The reporting of news, which means the collection of news and its communication to the public by radio or television or its publication in print form, has a privileged status because of the importance for the citizens in a democratic society of having unrestricted information about what is going on, particularly in the field of politics. Consequently, an exception to authors' exclusive rights is made for the purpose of news reporting.    13  Are Broadcast stations' slogans copyrightable?    No. Generally speaking, slogans cannot be copyrighted. For example, the slogan "News 4 You!" or "The Station In the Service of the World" may not be copyrightable. However, they can be protected by other laws, such as trademark, unfair competition or passing-off.    14  What is meant by "copyright infringement"?    Generally, the copyright owner has the sole right to reproduce his or her work for a number of purposes, including adaptation, publication or performance, or to authorize such uses. Anyone who engages in such activities without the permission of the copyright owner is violating the owner's copyright, and is said to be "infringing" copyright.    15  Does copyright belong to broadcasters?    Yes. Broadcasters in many countries have the right to authorize or prohibit the use of their broadcasts. For example, it is often an infringement of the right in the broadcast to sell or distribute tapes of broadcasts. Broadcasters likewise usually enjoy the exclusive rights of broadcasting or communicating their signals to the public.    16  May programmes be recorded from television satellites?    Programmes may not, in most countries, be recorded from a television satellite unless the programmes are authorized for free reception and a licence to copy the programmes is obtained.    17  Should on-line networks seek the permission of broadcasters for use of their broadcast?    Yes. A functional definition of "broadcasting" should include all forms of transmission, including on-demand delivery, via electro-magnetic waves, for reception by the public. Broadcasters in many countries have the right to authorize or prohibit the on-demand transmission of fixations of their broadcasts to individual subscribers and the granting to the public of access to fixations of their broadcasts incorporated in computer databases via an on-line network.    18  When is a work "in the public domain"?    After a certain period of protection, depending on the legislation of the country concerned, a work enters the "public domain" - it can be used by anyone without payment.    The most obvious examples of works in the public domain are the classics - for example, Shakespeare's plays or Beethoven's symphonies, which can obviously be performed without regard for copyright considerations. For broadcasting organisations, this aspect of copyright is important. Every year works previously protected become "out of copyright" and many of them will still be very much in demand by a radio or television audience.    19  How long does copyright protection last?    Copyright duration varies not only from country to country, but also from work to work within a particular country. For example, in many countries, the term of copyright in a literary, dramatic, musical or artistic work is fifty years after the end of the year in which the author dies, and the term for sound recordings or films is fifty years from the end of the year in which the recording or film was made.    20  What copyright works can be broadcast without payment?    The Copyright Act makes allowances for some use of copyright works without the necessity to seek the permission of the copyright owner.    First, before copyright can be infringed, a "substantial part" of the work must be taken. A further major limitation to the extent to which the copyright owner can restrict the use of his work is the concept of "fair dealing". In other words, there are a number of cases where free use can be made of literary, dramatic, musical and artistic works.    21  What is "a substantial part"?    In order to infringe copyright at all, it is necessary to use a "substantial part" or work. The phrase "substantial part" refers not only to quantity, but also to quality; it is not only the amount of the original material reproduced that is important, but also the relevance of the part taken to the work as a whole. Thus, in an English case, it was held to be a reproduction of a "substantial part" where a few footnotes from one edition of Shakespeare had been used in another.    In another case, the plaintiffs were the publishers of a book on baby care. The defendants published a book on the same subject, each book being approximately 200 pages in length. The total number of works complained of was about 600, and yet the similarity between the treatment of the subject in the two books was so striking that it was held that this was a reproduction of a "substantial part" of the original work.    When considering a comparison between a written work and a film or television drama, it is important to remember that copyright does not protect ideas as such but merely the expression of ideas. The fact that a broadcasting organisation produces a television drama with a plot very similar to a novel or short story does not necessarily mean that it has infringed the copyright of the author of that work. If the similarity is due to chance, or because both works are based on the same source, as would be the case in an historical sketch is no infringement. For example, in the Indian case, Gama Prasad v Nabahash, the plaintiff had written a drama about the Assamese hero, Piyoli Phookan. He alleged that a person who had made a film on the same subject had infringed his copyright. However, the main historical similarities between the film and the play were well known, and it was held that there was no infringement of copyright.    22  What is "fair dealing"?    Most copyright acts provide for the use in some circumstances of material which would otherwise be a breach of copyright. In other words, there are a number of circumstances in which free use can be made of literary, dramatic, musical and artistic works. In some cases, there is a requirement that an acknowledgement be made to the copyright owner. These circumstances are usually limited by the requirement of "fair dealing", or "fair use".    The definition of "fair dealing" is a vague one - but it is closely connected with the concept of the use of a "substantial part". In theory, the court, in deciding whether or not there has been a breach of copyright, first considers whether or not a "substantial part" of the work has been used. If there has not, that is the end of the matter. If there has, the court then goes on to consider whether there has not been a "fair dealing" with the material - and the "degree of substantiality is then considered in order to decide this.    In practice, the criteria for deciding whether a "substantial part" of the material has been used and whether there has been fair dealing is very much the same: the distinction is a confusing one, and in the United States the two concepts are sensibly joined into one: the concept of "fair use".    23  What factors should be considered in determining fair use?    There are no explicit, predefined, legal specifications of how much and when one can copy. But the following are guidelines for fair use:    (a) The purpose and nature of the use. If broadcast material is used for teaching at a nonprofit institution, distributed without charge, only a small percentage of the original material is used, and produced by a teacher or students acting individually, then the copy is more likely to be considered as fair use.    (b) The nature of copyrighted work    (c) The nature and substantiality of the material used. In general, when other criteria are met, copying extracts that are "not substantial in length" when compared to the whole of which they are part may be considered fair use.    (d) The effect of use on the potential market for or value of the work. Where a work is available for purchase or license from the copyright owner in the medium or form desired, copying of all or a substantial portion of the work in lieu of purchasing a sufficient number of "authorized" copies would be presumptively unfair. Where only a small portion of the work is to be copied, the use is more likely to be deemed to be fair.    24  What are the most important areas of "fair dealing" for broadcasters?    (i)  for the purposes of criticism and review,    (ii) for the purpose of reporting current events.    25  What is "criticism and review'?    The phrase used in many copyright acts in relation to fair dealing is: "criticism and review of that work or of any other work". This means that a book review programme, for example, could use quotations from a book while evaluating that book or in comparing it with another work without infringing copyright. A musical programme, which sets out to review a symphonic work, could include excerpts from the work and could also compare sections of it with passages from other works. A review of a play could contain excerpts from the play reviewed and these excerpts could be compared with excerpts from a novel, for example, on which the play was based.    In the United Kingdom, New Zealand and Singapore, it is necessary when using works for the purpose of "criticism or review" to make "sufficient acknowledgement". This simply means that the title of the work and the author's name must be given. In India, and under the Papua New Guinea Copyright Act, no acknowledgement needs to be made. The Malaysia Copyright Act does not require an acknowledgement where the work is "incidentally included in a broadcast".    It has been noted that what constitutes "fair dealing" depends on the circumstances of each case. However, in the United Kingdom the Society of Authors and the Publishers Association have jointly agreed, for the sake of convenience, what they regard as fair dealing with a literary work for the purposes of criticism or review. They suggest that a single extract of 400 words or a series of extracts (of which none exceeds 300 words) to a total of 800 words in the case of a prose work, or any extracts up to a total of 40 lines or 25% of a poem would be "fair dealing". This suggestion has legal sanction only in Pakistan and Bangladesh, where it has been incorporated into copyright legislation. Extracts so limited may be deemed to be "fair dealing". However, it is a useful "rule of thumb" for broadcasters in other countries.    26  What constitutes "reporting of current events"?    "Fair dealing" with most works for the purposes of reporting current events does not infringe copyright. This means that a radio or television producer may make use of parts of newspaper articles, films and video tapes, dramatic performances, or passages from, for example, a controversial new book, if the use is for the purpose of reporting "current events".    An interesting application of the provisions of the United Kingdom Act relating to fair dealing for the purpose of reporting current events was the use by British Satellite Broadcasting Limited of excerpts taken from BBC live broadcasts of goal scoring or near misses in World Cup matches. The excerpts varied in duration from 4 to 37 seconds, were taken from 10 matches, and were each broadcast up to 4 times over a period of about 3 weeks. The court held that, as the matches were current events "albeit confined to news of a sporting character" and no more had been taken by Satellite Broadcasting than was reasonably necessary for a television news report, the defence of fair dealing was made out.    27  What rights does a composer of music have to control the broadcasting of the music?    In most countries, a broadcasting corporation must pay for the right to broadcast music. The payment is made to the composer, but generally in an indirect way. In practice, the composer assigns his or her rights to an organisation, which negotiates with all those interested in publicly performing music. This central authority, representing a membership of a large number of composers, pays royalties to its members in accordance with the number of times a particular work is performed in public. Broadcasting organisations negotiate an overall annual payment to the central authority and provide the authority with sample returns from individual stations which allow the calculation, for the purpose of paying royalties to composers, of the number of times a record has been played. This "authority" can be any performing right society, but for Commonwealth broadcasters, whose countries are members of an international convention, the most relevant are the Australasian Performing Right Association, or the Performing Right Society, based in the Untied Kingdom. Both societies are in a position to give licences to broadcasters for virtually any music composed anywhere in the world. The Australasian Performing Rights Association (APRA), for example, controls not only the music which its own members assign to it within Australia, New Zealand and the South Pacific, but also the music written by United Kingdom composer and publisher members of the Performing Right Society. Similar agreements give control to APRA in Australia and New Zealand over musical works written by the various composer members of the United States' Societies, as well as societies in such countries as France, Germany, Italy, Spain, Holland, Greece and others.    While the broadcasters do not oppose the principle of payment of royalties to composers, there is, throughout the world, opposition by broadcasters to the amount of payment and to the basis on which payment is made.    28  What rights do authors have in terms of broadcasts?    A producer who wishes to make a programme from a novel or play - to use a novel, for example, as the basis of a radio series, or to adapt a stage play into a television drama - must obtain the permission of the copyright owner of the work. This may be either the author or, where the author has assigned the copyright, the author's publisher. When negotiations are taking place for the permission to use a work for broadcasting, it is important to clarify precisely what rights are involved. If producers wish to adapt a play to a television drama, for example, they must consider the use they wish to make of the original work. Do they want to follow the play exactly, to make small alterations for the purpose of television, or merely to use the original as a basis for an adaptation?    If the whole of the copyright in the work is assigned to the broadcasting organisation, the producer can use it for any purpose. But, if this is not the case, the producer must ensure that the agreement with the copyright owner covers the uses for which the work is required. With the increasing advent of multimedia and digital works, it may be important to ensure, even in anticipation of the subsequent use of the work or part of it for a multimedia or digital production, to obtain an option at a specified fee for that later use.    29  Do you need to secure a licence to broadcast a song as part of a television programme?    Yes. A public performance licence is necessary for any broadcast of a television programme that contains music. The performance right must be licensed from the copyright owners or publishers of the composition and the sound recording used. A blanket licence has traditionally been secured, usually from a performing rights society.    30  What is a "blanket licence"?    A blanket licence allows the licensee to use any item in the performing rights organization's catalog or repertoire for a specified period of time, without the need to negotiate for the performance right of each individual composition.    31  What is a music synchronization licence?    A synchronization licence is required to permit the music to be fixed in an audiovisual recording. The grant of this licence permits the producer of a television programme to incorporate a particular piece of music into an audiovisual work. This licence has traditionally been obtained by the television producer, through direct negotiation with the composer and the owner of the sound recording.    32  What is the basis for computing fees for synchronization?    Payments may be based on a fixed or lump sum amount, fixed percentage, or actual usage depending on the agreement with performance rights organizations or the copyright owner.    33  Is a synchronization licence required for a live show?    No. A "sync" licence is not needed for a live show because the element of recording is absent. However, a public performance licence is required.    34  If the "live" production is taped or filmed for later use, is a synchronization licence needed?    Yes. A "sync" licence is required for the incorporation of music in an audiovisual fixation.    35  Whom shall broadcasters deal with for a licence to use music?    If the music and lyrics are composed by two different people then most likely, a national law will treat the song as consisting of two works - a musical work and a literary work. However, in most cases a licence can be obtained from one body for the broadcasting of the entire song (see question 27).    36  Are there rights which broadcasters need to secure from sound recording companies?    Yes. Apart from the licence needed to be obtained from a composer for the use of music in an audiovisual recording, a separate "sync" licence needs to be secured from the owner of the sound recording which embodies or contains the musical work.    37  Should royalties be paid to performers whose performances are broadcast or communicated to the public?    Subject to certain laws of each country, royalties are generally paid to performers for the broadcast or communication to the public of their performances.    38  Do broadcasters need to secure a copyright licence to broadcast the recording of sports events?    Yes. The airing of a recorded sports event requires a licence from the copyright owner of the copyright coverage.    39  What about a copyright licence to cover a sports event?    There is no copyright in a sports event and hence there is no need to secure a licence to cover it. This is because there is no author and no intellectual creation involved. The players have no rights as performers because, generally speaking, the rights protection for the performers is restricted to their performances of literary and artistic works. Hence, sports organizers cannot authorize or prohibit the making of an audio-visual recording or a television broadcast of a game. What they can do is refuse to admit the broadcasters to the ground. The right they are exercising is the right of the owner of the land to exclude the uninvited.    40  May broadcasters air or record artworks found in public places?    National laws often provide an exception in relation to sculpture, painting and other works of art situated in places accessible to the public. A similar exception deals with copyright works which are included or which incidentally or unavoidably form part of the background. These exceptions benefit the broadcasters who may be unable to control what is recorded.    41  What rights do broadcasters have?    The Copyright Acts of most countries provide for a right of broadcasters in the programmes they broadcast. In general, they provide that a broadcaster has the power to authorise certain dealings with its broadcasts, and that it can bring legal action against those who use its broadcasts without authorisation. Therefore, it is an infringement of the right in the broadcast to sell tapes of broadcast programmes. Of course, this action would also infringe the copyright of the composer of the music and the record company, which produced the original recording, who could maintain separate actions.    In a New Zealand case, Newsmonitor v Television new Zealand Limited, a transcript service had for a number of years been transcribing TVNZ's programmes - mainly news and current affairs programmes - and selling the transcripts. In deciding in favour of TVNZ, the Judge determined that there had been an infringement of both the broadcast and the underlying rights contained in the broadcast, and stated:    "A news monitoring business is parasitic. Why should it have a free ride on a broadcaster which has put considerable amounts of time and money into producing the news and current affairs programmes which are the source for the transcripts?"    42  What difference between "domestic" and "international copyright"?    Domestic copyright results from laws passed in a particular country protecting the rights of owners of "works" within that country. These laws ensure that citizens of the country cannot infringe the copyright in works owned by fellow citizens. However, domestic copyright does not protect a copyright owner in a particular country from the use of his work by someone outside that country. Conversely, where a country has only domestic copyright, its citizens can use works from any other country without payment.    International copyright arises when a country wishes to protect the works of its nationals against infringement by the nations of other countries. The concept behind international copyright conventions is one of reciprocity. It is possible for a country which wishes to protect the works of its national copyright owners in another country to enter into an agreement with the government of that country so that, on a reciprocal basis, the ownership of copyright is respected by copyright users in the two countries. This is known as a bilateral agreement. However, most countries wishing to protect national copyright owners in this way join one or more of the international copyright conventions. The basic principle of these conventions is that of national treatment - the undertaking by each contracting state that it will give to the works of nationals of other countries the same copyright protection as it does for its own nationals.    43  What are the "traditional" international copyright treaties?    These are the Berne Convention, the Universal Copyright Convention, and the Rome Convention.    44  What is the Berne Convention?    The Berne Convention is by far the oldest of the international copyright conventions. It was first established in 1886. Its original purpose was to provide protection for the nationals of the developed countries which were members of the Union. The Berne Convention provides protection for a large number of works, and the protection provided is extensive. A copyright owner is granted several special rights. He or she has the right to authorise or prohibit the reproduction of the work, its broadcasting, translation and adaptation. In particular, the Berne Convention provides for a minimum period of copyright protection of the life of the author plus 50 years.    45  What rights are granted to authors under the Berne Convention?    Under the Berne Convention, authors have exclusive rights to authorize:    (a) any communication to the public by wire of the broadcast or any rebroadcast of the broadcast; and    (b) the broadcasting of works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images.    46  What is the Universal Copyright Convention?    The Universal Copyright Convention is of far more recent origin than the Berne Convention. It was established following a resolution of the general conference of UNESCO in 1951, and was signed in Geneva in 1952. There were two main reasons for its establishment. First, it was thought that the claims of developing countries should be met. Many of these countries felt that the requirements of the Berne Convention were too stringent - that it afforded too great a degree of protection to copyright owners, to the disadvantage of those who wished to make use of the copyright works. Secondly, it was felt necessary to bring the United States, which had never been a member of the Berne Convention, within the international copyright system.    47  What is the Rome Convention?    The Rome Convention's full title is the International Convention for the protection of Performers, Producers of Phonograms and Broadcasting Organisations. While the Convention purports to protect broadcasting organisations, broadcasters throughout the world take the view that the Rome Convention is no longer effective for their protection. It is important to remember is that neither the Rome Convention nor the TRIPS Agreement requires payment of royalties by broadcasters to record manufacturers.    48  What are some rights granted to broadcasters under the Rome Convention?    Under the Rome Convention broadcasters have the right to authorize or prohibit the re-broadcasting of their broadcasts. "Re-broadcasting" is defined under the Rome Convention as the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcast organization. Broadcasters also have the right to authorize or prohibit the fixation of their broadcasts; the reproduction of unauthorized original fixations of their broadcasts; the reproduction for purposes other than those authorized fixations of their broadcasts.    49  Why are international treaties important to broadcasters?    International Treaties often seem to be academic and far removed from the everyday activities of national broadcasters. However, the reality is that international copyright Treaties have, and will continue to have, considerable economic effects on broadcasters internationally. They will have particular effect on developing countries, and thus on many countries within the ABU.    The necessity for broadcasters to do all they can to influence law-making at an international level arises because the legislatures of many countries adopt, when passing legislation, international norms as set out in international treaties. Although the fact that a provision is included in an international treaty does not, of course, bind any country to its terms, the very fact of its inclusion in such a treaty influences national legislatures to include it in domestic legislation.    50  What is the TRIPS Agreement?    This is the Agreement on Trade-Related Aspects of Intellectual Property Rights. Negotiations in relation to this agreement were completed in 1994 as part of the final text of the General Agreement on Tariffs and Trade ("the GATT"). The governments of 72 of the ABU 88 full or associate members are members of the GATT.    The TRIPS Agreement sets out minimum standards of protection and enforcement for a wide variety of intellectual property rights, and governments, which are signatories to the Agreement, undertake to enact domestic legislation to the level of these minimum requirements. The danger for broadcasters is that, in making amendments to domestic copyright law, governments may unnecessarily extend protection of rights to such an extent that the ability of broadcasters to carry out their functions is limited or compromised.    51  What are the reasons for TRIPS?    There were two main reasons leading to the inclusion of the Agreement on TRIPS in the GATT Uruguay Round. The first was the appreciation of the increasing economic importance of intellectual property. The second was the lack of success of the World Intellectual Property Organisation in preventing the infringement of intellectual property rights throughout the world. While the Rome Convention (for the protection of performers, producers of phonograms and broadcasting organisations) permits disputes to be brought before the International Court of Justice, this procedure is of little practical importance and, in fact, has never been used.    The sanctions provided by the TRIPS Agreement are potentially much more effective, as they relate to trade. If a country, which is a signatory to the TRIPS Agreement, does not comply with the provisions of the Agreement, it can be reported to a World Trade Organisation panel. In the event of an adverse finding by that panel, retaliatory measures in the form of trade sanctions may be adopted against that country.    52  What are the main points of TRIPS?    The substance of the TRIPS Agreement is that member countries must comply with the rights set out in 1971 Act of the Berne Convention with the exception of the moral rights provided for in the Convention in Article 6 bis. This means, in brief, that payments have to be made by broadcasters for the use of the works of intellectual property included in their broadcasts originating in other countries, which are signatories to the TRIPS Agreement. For many ABU members, this has not meant a major change in liability. For others, however, which are not already members of the Berne Convention, it will result in increased payments for the use of certain rights.    53  What rights do record manufacturers claim?    In many countries, record manufacturers have the right to receive a royalty from broadcasters for the broadcast of their records.    In countries where the "neighbouring right" of recording manufacturers is recognised, payment must be made by broadcasting organisations, not only to the composer for the right to broadcast a composition and to the record company for the purchase to the recording, but also to the record company for the right to broadcast the recording.    54  How did this situation come about?    The United Kingdom Copyright Act 1911 provided a form of copyright for manufacturers of recordings to prevent pirating or copying of their records. However, in 1934 a court decision in the United Kingdom interpreted the relevant section as conferring a right to control the public performance of a recording. Since that time in the United Kingdom, and in many other countries, which have inherited its copyright laws, broadcasting organisations, have paid record companies for the right to broadcast their recordings.    The manufacturers' claim is reflected in Article 12 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (known as the "Rome Convention") which states:    "If a phonogram published for commercial purposes, or a reproduction of such phonogram, is used directly for broadcasting or for any communication to the public, a single equitable remuneration shall be paid by the user to the performers, or to the producers of the phonograms, or to both. Domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of the remuneration."    It is important at this stage to note, however, that a country can accede to the Rome Convention, while excluding Article 12 relating to payment by broadcasters of royalties to record companies. Many countries have done so, including Australia. Article 16 of the Convention provides that a State may, in a notification deposited with the Secretary-General of the United Nations, declare that it will not apply the provisions of Article 12. This right of notification is specifically provided for in Article 3(1) of the TRIPS Agreement.    55  What are the important recent international treaties for broadcasters?    These are the WIPO Performances and Phonograms Treaty and WIPO Copyright Treaty.    After several years of international meetings, these two very important treaties were concluded in 1996. Their importance to broadcasters lies more in what they have left out than in what they include. In other words, their value to broadcasters is that, through a co-ordinated lobbying strategy, broadcasting unions throughout the world succeeded in excluding from these treaties extensive rights sought by record manufacturers and performers. For example, performers and record manufacturers sought an exclusive right of remuneration for the broadcasting and communication to the public of their works. This would have meant that the record manufacturers and performers could have charged what they like to broadcasters for the exercise of their rights. However, the Committee of Experts rejected this claim. What the treaty provides is for the payment of "a single equitable remuneration" to be paid by broadcasters - in other words, paid by the broadcaster to both categories jointly, who then divide that remuneration between themselves. Of particular importance is the provision in Article 15, paragraph 3 of the Performers and Phonograms Treaty that any government may declare that in its domestic copyright law it will enforce the right to a "single equitable remuneration" only in respect of certain uses, or that it will not apply this provision at all.    It is also important to realise that, for the countries of Western Europe, the battle against payment of royalties to record manufacturers is over. They all pay such royalties. But for many countries in the ABU region, it is not too late to resist the incorporation into domestic legislation and into international instruments of a provision granting record manufacturers' royalties from broadcasters. And there are many reasons why such payment should not be made.    56  What are the arguments against payback by broadcasters to record co's?    1. From the broadcaster's point of view, it is entirely anomalous that a record company should receive a broadcasting royalty as well as the promotion, which results from the broadcasting of its recordings. The paradoxical result is that the broadcaster, while making it possible for the manufacturer to enormously increase the sale of its product, must also pay that manufacturer for the free advertising provided.    2. A recording company is in the business of selling a physical item - a recording - and it is this activity, which should reimburse the company. To say that a record manufacturer merits a fee each time this physical unit is publicly used is rather like saying that book publishers should be paid an extra amount each time the book is read. Often, no reciprocal benefit accrues to the country granting the right because many other countries - and notably the USA - do not provide a performing right in sound recordings.    57  What of the claim that royalties are passed onto the performer?    The recording industry claims that some of the money it collects from broadcasting organisations is, or would be, passed on to the artists who perform in the recordings. No doubt this claim is made to get the support of performers in the campaign to secure payments from broadcasting organisations.    It is the view of broadcasting organisations that all of the benefits, which manufacturers enjoy as a result of the broadcasting of their recordings, apply equally to performers. They depend on the broadcasting of recordings for the popularity with the public and the results of the broadcasts are reflected not only in increased sales but also in increased fees for their public appearances.    If performers are entitled to any payments in addition to the original fee paid by the manufacturer, such additional payments should be based on a percentage of the proceeds from the sale of recordings to the public; but this is a matter for negotiation between the performer and the manufacturer before the recording is made. By stimulating the sale of recordings through broadcasting, broadcasting organisations make a major contribution to the income of both manufacturers and performers.    58  Record company arguments    This claim is not based on fact. Most governments in the ABU region take positive steps to preserve and strengthen the culture of their own countries and this policy is, and has been in the past, supported firmly by the broadcasting organisations. In the case of national broadcasting organisations, which obtain most of their revenue from limited government funding, a requirement to make payments to record manufacturers for the broadcasting of records is likely to reduce funding available for programme production, including the production of cultural programmes.    It should be noted that the payment of fees to record manufacturers seldom results in increased recording opportunities for local artists. The monopolistic character of the recording industry ensures that a high percentage of the manufacturers' fee is transferred abroad to large foreign cartels.    59  What about reciprocity?    A concern of many broadcasters who pay royalties to recording companies is the complete lack of reciprocity between their countries and that major source of popular recordings, the United States. There is no provision in US law for the payment by broadcasters of royalties to record companies. Consequently, many broadcasters pay royalties to companies based in the United States while receiving nothing for the broadcast in those countries of their own recordings. There is legislation on this subject being considered in the United States at present, but it appears that the only circumstance in which a broadcaster will be liable to pay royalties will be where the broadcaster transmits a digital signal in a way which allows members of the public to download a complete sound recordings - because the initial signal is argued to have technical qualities which make it competitive with commercial recordings.    60  What options do governments have?    It is important that governments be made aware of the options. One option is to simply abolish the broadcast right in respect of sound recordings. Another course is to restrict the application of the broadcasting right in recordings to those countries giving adequate protection to local recordings. Australia, among other countries, has done this. This would leave intact the right to broadcasting royalties by local record manufacturers but would have had the effect of removing the anomaly of the lack of reciprocity. Unless either of these options is adopted, the result for many counties will be the net outflow of millions of dollars annually in royalties, with no possibility of reciprocal payments from the United States.    61  What is ABU's official view on royalty payments to record manufacturers?    At the 1995 General Assembly in Kyoto, the General Assembly adopted a resolution which reads, in part:    "Having examined the report of the ABU Working Party on Copyright Issues:    Recognising that the Agreement on Trade-Related Aspects of Intellectual Property Rights ("the TRIPS Agreement") will lead to the governments of ABU members revising domestic copyright law to comply with the TRIPS Agreement;    Recognising that the governments of 72 of ABU's members organisations are members of the General Agreement on Tariffs and Trade (GATT);    Recognising that the re-evaluation of domestic copyright law by governments will provide an opportunity for broadcasters to address those issues which affect their interests;    The General Assembly    1. Urges members to make representations to governments on matters affecting broadcasters, and in particular    (a) to emphasise to governments that record manufacturers have no valid claim to royalties from broadcasters and that neither the TRIPS Agreement nor the Rome Convention requires that domestic legislation provide such payments.    (b) to point out to governments that the TRIPS Agreement will not require provision for "moral rights" in authors or film directors;    (c) to make submissions, where applicable, to the effect that legislation permitting cable operators to simultaneously transmit broadcasts without payment of copyright is inequitable and in breach of the Berne Convention and the TRIPS Agreement."    This resolution effectively reaffirmed similar resolutions adopted by ABU General Assemblies in 1974 and 1967.    62  Is any country obliged to make payments to record manufacturers if it joins an international convention?    It cannot be emphasised enough that a country can join the Rome Convention, the TRIPS Agreement and the WIPO Performances and Phonograms Treaty and make reservations so that broadcasters in that country have no obligation to pay royalties to record manufacturers.    63  What are moral rights?    These consist, in many countries, of the "right of paternity" - the right to be identified as the author of a work or the director of a film, and the "right of integrity" - the right to object to derogatory treatment of a work. A treatment of a work is derogatory if, "whether by distortion or mutilation of a work or otherwise, the treatment is prejudicial to the honour or reputation of the author or director". It is essential that broadcasters appreciate that it is not a requirement of the TRIPS Agreement that a country provide for moral rights in its domestic legislation.    64  What are performer's rights?    The TRIPS Agreement provides that protection should be given to performers to the minimum level specified in the Rome Convention. All this requires is that performers have the right to prevent the recording of their live performance without their authorisation and the broadcasting and the communication to the public without authorisation of their live performance. It does not require the enactment of domestic copyright legislation providing that performers, once they have agreed to the recording of their performance, then control the use to which these recordings, whether forms or television programmes, can be put.    65  Should cable operators be permitted to freely re-transmit programmes?    In some countries, cable operators have the ability to re-transmit broadcasters' signals by cable without payment. This is a hangover from the time when cable technology was used only to improve reception by simultaneous transmission by cable in those areas where signal quality was inadequate.    Why should cable operators receive free programming at the expense of broadcasters? In no other area of the economy has it been suggested that entrants into a market should have the use of third parties' property, at no fee, in order to facilitate their entry.    Furthermore, it appears that some assumptions as the to the relative positions of broadcasters and cable operators in the converging telecommunications market are erroneous. There appears, in some government quarters, where cable is only now just emerging, to be an assumption that cable operators are or will be at a competitive disadvantage in terms of broadcasters. In fact, throughout the world, cable operators are rapidly proliferating and achieving a large share of the television transmission market. It may well be that the relative positions of broadcasters and cable operators, as perceived at present, will reach the stage where broadcasters, authors, scriptwriters, composers, phonogram producers, actors and performers are subsidising multinational and monopolistic cable operators.    It is apparent that, if any concession is to be made to encourage production within the video market, it should be in relation to the area of production of programmes. What will be in short supply in the coming years will not be delivery modes, but programme materials. A free ride for cable operators will lead to a situation in which programme producers' revenues are reduced. Fewer resources will be devoted to programme development - a classic case of killing the goose that lays the golden egg. it is clear that economic practicality, basic equity and the provisions of the Berne Convention support the abolition, where it exists, of cable operators' rights of free transmission of broadcasts.    Further, any provision in domestic legislation which permits the free use of the material contained in a broadcast signal by a cable operator is contrary to Article 11 bis of the Berne Convention, which give the author of a copyright work the exclusive right to authorise "any communication of a work to the public by wire".

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