International Intellectual Property Treaties | Part – 4
The Phonograms Convention, adopted in Geneva in October 1971, provides for the obligation of each Contracting State to protect a producer of phonograms who is a national of another Contracting State against the making of duplicates without that producer’s consent, against the importation of such duplicates, where the making or importation is for the purpose of distribution to the public; and against the distribution of such duplicates to the public. WIPO is responsible, jointly with the International Labour Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO), for the administration of this Convention.
The Phonograms or Geneva Convention provides for the obligation of each Contracting State to protect a producer of phonograms who is a national of another Contracting State against the making of duplicates without that producer’s consent; against the importation of such duplicates, where the making or importation is for the purpose of distribution to the public; and against the distribution of such duplicates to the public. “Phonogram” means an exclusively aural fixation (that is, it does not comprise, for example, the sound tracks of films or videocassettes), whatever its form (disc, tape, etc.). Protection may be provided under copyright law, sui generis (related rights) law, unfair competition law or penal law. Protection must last for at least 20 years from the date of first fixation or the first publication of the phonogram. (However, national laws increasingly provide for a 50-year term of protection.) The Convention permits the same limitations as those provided in relation to the protection of authors. It allows non-voluntary licenses if reproduction is intended exclusively for teaching or scientific research, limited to the territory of the State whose authorities give the license, and if equitable remuneration is provided (Article 6).
WIPO is responsible, jointly with the ILO and UNESCO, for the administration of this Convention.
The Convention does not provide for the institution of a Union, governing body or budget.
The Convention is open to any State member of the United Nations or of any of the agencies belonging to the United Nations system of organizations. Instruments of ratification, acceptance or accession must be deposited with the Secretary-General of the United Nations.
The Rome Convention secures protection in performances for performers, in phonograms for producers of phonograms and in broadcasts for broadcasting organizations. WIPO is responsible for the administration of the convention jointly with the International Labour Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO).
The Rome Convention secures protection in performances for performers, in phonograms for producers of phonograms and in broadcasts for broadcasting organizations.
(1) Performers (actors, singers, musicians, dancers and those who perform literary or artistic works) are protected against certain acts to which they have not consented, such as the broadcasting and communication to the public of a live performance; the fixation of the live performance; the reproduction of the fixation if the original fixation was made without the performer’s consent or if the reproduction was made for purposes different from those for which consent was given.
(2) Producers of phonograms have the right to authorize or prohibit the direct or indirect reproduction of their phonograms. In the Rome Convention, “phonograms” means any exclusively aural fixation of sounds of a performance or of other sounds. Where a phonogram published for commercial purposes gives rise to secondary uses (such as broadcasting or communication to the public in any form), a single equitable remuneration must be paid by the user to the performers, to the producers of the phonograms, or to both. Contracting States are free, however, not to apply this rule or to limit its application.
(3) Broadcasting organizations have the right to authorize or prohibit certain acts, namely the rebroadcasting of their broadcasts; the fixation of their broadcasts; the reproduction of such fixations; the communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.
The Rome Convention allows for limitations and exceptions to the above-mentioned rights in national laws as regards private use, use of short excerpts in connection with reporting current events, ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts, use solely for the purpose of teaching or scientific research and in any other cases where national law provides exceptions to copyright in literary and artistic works. Furthermore, once a performer has consented to the incorporation of a performance in a visual or audiovisual fixation, the provisions on performers’ rights have no further application.
As to duration, protection must last at least until the end of a 20-year period computed from the end of the year in which (a) the fixation was made, for phonograms and for performances incorporated therein; (b) the performance took place, for performances not incorporated in phonograms; (c) the broadcast took place. However, national laws increasingly provide for a 50-year term of protection, at least for phonograms and performances.
WIPO is responsible, jointly with the International Labour Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO), for the administration of the Rome Convention. These three organizations constitute the Secretariat of the Intergovernmental Committee set up under the Convention consisting of the representatives of 12 Contracting States.
The Convention does not provide for the institution of a Union or budget. It establishes an Intergovernmental Committee composed of Contracting States that considers questions concerning the Convention.
This Convention is open to States party to the Berne Convention for the Protection of Literary and Artistic Works (1886) or to the Universal Copyright Convention. Instruments of ratification or accession must be deposited with the Secretary-General of the United Nations. States may make reservations with regard to the application of certain provisions.
Singapore Treaty on the Law of Trademarks:
The objective of the Singapore Treaty is to create a modern and dynamic international framework for the harmonization of administrative trademark registration procedures. Building on the Trademark Law Treaty of 1994 (TLT), the Singapore Treaty has a wider scope of application and addresses more recent developments in the field of communication technologies.
The objective of the Singapore Treaty is to create a modern and dynamic international framework for the harmonization of administrative trademark registration procedures. Building on the Trademark Law Treaty of 1994 (TLT), the Singapore Treaty has a wider scope of application and addresses more recent developments in the field of communication technologies. The Singapore Treaty is applicable to all types of marks registrable under the law of a given Contracting Party. Contracting Parties are free to choose the means of communication with their offices (including communications in electronic form or by electronic means of transmittal). Relief measures in respect of time limits as well as provisions on the recording of trademark licenses were introduced, and an Assembly of the Contracting Parties established. However, other provisions of the Singapore Treaty (such as the requirements to provide for multiclass applications and registrations and the use of the International (“Nice”) Classification) closely follow the TLT. The two treaties are separate, and may be ratified or adhered to independently.
Unlike the TLT, the Singapore Treaty applies generally to all marks that can be registered under the law of a Contracting Party. Most significantly, it is the first international instrument dealing with trademark law to explicitly recognize non-traditional marks. The Treaty is applicable to all types of marks, including non-traditional visible marks, such as holograms, three-dimensional marks, color, position and movement marks, as well as non-visible marks such as sound, olfactory or taste and feel marks. The Regulations under the Singapore Treaty on the Law of Trademarks provide for the mode of representation of these marks in applications, which may include non-graphic or photographic reproductions.
The Singapore Treaty leaves Contracting Parties the freedom to choose the form and means of transmittal of communications and whether to accept communications on paper, in electronic form or in another form. This has consequences on formal requirements for applications and requests, such as the signature on communications with the office. The Treaty maintains a very important provision of the TLT, namely that the authentication, certification or attestation of any signature on paper communications cannot be required. However, Contracting Parties are free to determine whether and how they wish to implement a system of authentication of electronic communications.
The Treaty provides for relief measures when an applicant or holder has missed a time limit in an action for a procedure before an office. Contracting Parties must make available, at their choice, at least one of the following relief measures: extension of the time limit; continued processing; and reinstatement of rights in so far as the failure to meet the time limit was unintentional or occurred in spite of due care required by the circumstances.
The Singapore Treaty includes provisions on the recording of trademark licenses, and establishes maximum requirements for requests for recordal, amendment or cancellation of the recordal of a license.
The creation of an Assembly of the Contracting Parties introduced a degree of flexibility in defining the details of administrative procedures to be implemented by national trademark offices, where it is anticipated that future developments in trademark registration procedures and practices will warrant amendments to those details. The Assembly is endowed with powers to modify the Regulations and the Model International Forms, where necessary, and can also address – at a preliminary level – questions relating to the future development of the Treaty.
Furthermore, the Diplomatic Conference adopted a Resolution Supplementary to the Singapore Treaty on the Law of Trademarks and the Regulations Thereunder, with a view to declaring an understanding by the Contracting Parties on several areas covered by the Treaty, namely: that the Treaty does not impose any obligations on Contracting Parties to (i) register new types of marks, or (ii) implement electronic filing systems or other automation systems. The Resolution also contains special provisions to provide developing and least developed countries with additional technical assistance and technological support to enable them to take full advantage of the provisions of the Treaty. It was recognized that LDCs shall be the primary and main beneficiaries of technical assistance by Contracting Parties. The Assembly monitors and evaluates, at every ordinary session, the progress of the assistance granted. Any dispute arising in relation to the interpretation or application of the Treaty is to be settled amicably through consultation and mediation under the auspices of the Director General of WIPO.
The Singapore Treaty was concluded in 2006 and entered into force in 2009.
The Treaty is open to States members of WIPO and to certain intergovernmental organizations. Instruments of ratification or accession must be deposited with the Director General of WIPO.