WIPO Copyright Treaty

The Copyright Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works. Part of the work on the Copyright Treaty involved extending coverage of the Berne Convention to certain issues which had already been agreed internationally via the GATT TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods). These issues included protection of computer programs as literary works, protection of the original selection and arrangement elements of compilations of data] and other materials, and the introduction of a limited right to prevent [[rental of copyright works. These provisions can be found in Articles 4, 5 and 7, respectively, of the text as adopted.

A second aspect of the Copyright Treaty was to go beyond existing international agreements in addressing copyright aspects of online exploitation of works in digital form.

The Treaty also:


 * expressly confirms that copyright protection extends to expression but not to ideas, procedures, methods of operation or mathematical concepts as such (Article 2 of the final text);
 * confirms that copyright owners have the right to authorize the making available to the public of the original and copies of their works through sale or other transfer of ownership (Article 6). It is left to national and regional law to determine the scope of exhaustion of this right, and the Treaty permits national laws providing for international exhaustion of this right by first sale anywhere in the world. A chairman's statement confirmed that this "right of distribution" and the right to authorise rental apply only to tangible copies;
 * confirms that copyright owners also have the right to authorize communication to the public, by wire or wireless means, including in ways which permit individual on demand access (Article 8);
 * confirms that contracting states may only limit or create exceptions from the rights described under the Treaty to the extent this does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author (Article 10). This new Article applies the same approach to rights under the new Treaty, and extends it to other rights already in existence under the Berne Convention;
 * requires contracting parties to "provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of the rights (under Berne or the new Treaty) and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law" (Article 11). The language adopted leaves member states considerable latitude about the terms in which they implement this obligation; and
 * requires contracting states to provide a legal framework to prevent tampering with rights management information (such as e.g. a copyright notice) so as to facilitate infringement (Article 12).

Countries with strong interests in high levels of copyright protection were keen to get this Treaty through, and had to accept concessions to achieve this. One provision which did not make it through the conference was the proposed "clarification" of the scope of the right of reproduction, to confirm that this right included the right to authorize temporary reproduction. There were strong voices supporting the position that this gave rightholders too much control, e.g., over electronic browsing. The extent of the reproduction right is therefore left to national laws for the present.

Steps were also taken to address concerns of online service providers about their potential liabilities for online copyright infringements using their systems. This was done through the means of a statement expressing the understanding that the mere provision of physical facilities for enabling or making a communication does not of itself amount to a communication.