In 1996 the World Intellectual Property Organization (WIPO), which, as of 2019, had 192 states as signatories, from Afghanistan to Zimbabwe, established a treaty with the objective of developing and maintaining “the protection of the rights of performers and producers of phonograms[*] in a manner as effective and uniform as possible. . . . Recognizing the profound impact of the development and convergence of information and communication technologies on the production and use of performances and phonograms, Recognizing the need to maintain a balance between the rights of performers and producers of phonograms and the larger public interest, particularly education, research and access to information.” Yes, a treaty that takes into account the provisions of both the Berne Convention (1971) and the Rome Convention (1961).
It is a 38-page document.
So here are a series of excerpts from it, which, may provide some insights into the rights of performers, which, somehow, seem to be almost equal to those of producers.
All of this may be worthwhile keeping in mind as the issue of remuneration for performers vis-à-vis streaming services continues to roil the music industry.
Keep in mind, however, that this treaty was established in 1996, a year after the Fraunhofer Society released the mp3 digital audio coding format and three years before the creation of Napster.
Mutare tempora, as they used to say some 1,520 years before the treaty was signed.
Relation to Other Conventions
(1) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations done in Rome, October 26, 1961 (hereinafter the “Rome Convention”).
(2) Protection granted under this Treaty shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provision of this Treaty may be interpreted as prejudicing such protection.
(3) This Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties
(a) “performers” are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;
Moral Rights of Performers
(1) Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.
Economic Rights of Performers in their Unfixed Performances
Performers shall enjoy the exclusive right of authorizing, as regards their performances:
(i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and
(ii) the fixation[**] of their unfixed performances.
Right of Reproduction
Performers shall enjoy the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in phonograms, in any manner or form.
Right of Distribution
(1) Performers shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their performances fixed in phonograms through sale or other transfer of ownership.
(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixed performance with the authorization of the performer
Right of Rental
(1) Performers shall enjoy the exclusive right of authorizing the commercial rental to the public of the original and copies of their performances fixed in phonograms as determined in the national law of Contracting Parties, even after distribution of them by, or pursuant to, authorization by the performer.
Right of Making Available of Fixed Performances
Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them
Right of Distribution
(1) Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their phonograms through sale or other transfer of ownership
Right of Rental
(1) Producers of phonograms shall enjoy the exclusive right of authorizing the commercial rental to the public of the original and copies of their phonograms, even after distribution of them by, or pursuant to, authorization by the producer.
Right of Making Available Phonograms
Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.
Right to Remuneration for Broadcasting and Communication to the Public
(1) Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public
(4) For the purposes of this Article, phonograms made available to the public by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them shall be considered as if they had been published for commercial purposes.
Obligations concerning Technological Measures
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law.
The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.
Denunciation of the Treaty
This Treaty may be denounced by any Contracting Party by notification addressed to the Director General of WIPO. Any denunciation shall take effect one year from the date on which the Director General of WIPO received the notification
[*](b) “phonogram” means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;
[**](c) “fixation” means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;