“中华人民共和国不受WPPT第15条第(1)款的约束”?

  在2006年12月29日通过的《全国人大常委会关于加入〈世界知识产权组织表演和录音制品条约〉的决定》中,有一项声明:“中华人民共和国不受《世界知识产权组织表演和录音制品条约》第15条第(1)款的约束。”

  WPPT第15条第(1)款的规定是:

  "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."

  WIPO官方网站上的中文翻译是:

  “对于将为商业目的发行的录音制品直接或间接地用于广播或用于对公众的任何传播,表演者和录音制品制作者应享有获得一次性合理报酬的权利。

  (插叙,我个人觉得,似乎不应该将“Publish”译为“发行”而应译为“发表”,发行应该是“distribution”,强调作者权的大陆法上的发表和发行,是截然不同的概念。)

  从国际法上说,中国是可以提出这一保留条款的,因为WPPT第15条第(3)款中就明确说了:“Any Contracting Party may…declarethat it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all.”而之所以有这样的可保留规则的原因,在关于该条的议定声明中也说了:“…Delegations were unable to achieve consensus on differing proposals for aspects of exclusivity to be provided in certain circumstances or for rights to be provided without the possibility of reservations, and have therefore left the issue to future resolution.”。

  为了更深入地了解其中缘由,我认真检索了WIPO的相关文件,以下为这一条文的形成过程:

  一开始,这个条文是两个条文,分别在WPPT草案(1996年8月30日——CRNR/DC/5)的第12条(表演者权)和第19条(录音制作者权):

  第12条:[参见:http://www.wipo.int/documents/en/diplconf/5dc_ch2.htm]

Article 12
Right to Remuneration for Broadcasting and Communication to the Public

(1) Performers shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes or reproductions of such phonograms for broadcasting or for any communication to the public.

(2) Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration. In the absence of either national legislation or an agreement between the performer and the producer of a phonogram, the performer and the producer of the phonogram shall equally share the single equitable remuneration between them.

(3) Any Contracting Party may, subject to the provisions of paragraph (4), in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all. In availing itself of this possibility, any Contracting Party may apply the provisions of Article 16.1(a)(iv) of the Rome Convention mutatis mutandis.

(4) The provisions of paragraph (3) do not apply to any broadcasting or any communication by wire or wireless means which can only be received on the basis of subscription and against payment of a fee.

对这一条的说明是:
Notes on Article 12
12.01 Article 12 of the Rome Convention grants to performers and to producers of phonograms the right to a single equitable remuneration if their phonogram is published for commercial purposes or if a reproduction of the phonogram is used for broadcasting or any communication to the public. The remuneration is paid by the user to the performer or to the producer of the phonogram or to both. In the absence of an agreement between these parties, national legislation may lay down the rules that govern the sharing of this remuneration.

12.02 The right to remuneration is subject to the reservations permitted in Article 16 of the Rome Convention. Under Article 16, any state may declare that it will not apply the provisions of that Article or that it will not apply them in respect of certain uses. Furthermore, a state may declare that it will not apply the right to remuneration in respect of phonograms the producer of which is not a national of another Contracting State. A Contracting State may also make the right to remuneration subject to reciprocity as regards the extent to which, and the term for which, another state grants protection to phonograms fixed by a national of the state making such a reservation.

12.03 Article 12 of the proposed Treaty accords to performers a right to equitable remuneration for the use of phonograms (in which their performances are fixed) published for commercial purposes or the use of a reproduction of such phonograms for broadcasting or any communication to the public. In general, this right corresponds to the right provided for in Article 12 of the Rome Convention.

12.04 Paragraph (1) does, however, propose additional elements that are not included in Article 12 of the Rome Convention. The right to remuneration would cover not only direct uses of phonograms but also indirect uses for broadcasting or for communication to the public. Remuneration should always be received both by performers and producers. In this way, the proposed Article 12 excludes the possibility that performers would not receive at least a single equitable remuneration.

12.05 "Broadcasting" and "communication" are defined in Article 2. The definition of broadcasting covers rebroadcasting as discussed in Note 2.23 above. Communication covers all cases of cable or wire transmission, such as cable-originated television transmissions and sound radio by cable or in communication networks. Because the right covers both direct and indirect uses of phonograms, all forms of retransmission by cable and wire also fall within the scope of the right. The definition of communication also covers situations where a phonogram is played directly to the public present at the same location. Indirect communication of a phonogram covers situations where a radio or television set or other apparatus is used to make a phonogram that is included in a broadcast or wire communication audible to the public in a cafe, restaurant, hotel lobby or other place that is open to the public.

12.06 Paragraph (2) permits Contracting Parties to establish rules governing the way in which remuneration is shared between performers and producers of phonograms and the way in which users pay the required remuneration. These are logistical concerns that are beyond the scope of international agreements.

12.07 As noted above, the right to remuneration under the Rome Conven
tion is subject to reservations. This basic structure has been reproduced in the proposed Treaty. The reservations clause in paragraph (3) leaves the degree of reservation open, subject to the provisions of paragraph (4). Contracting Parties may make minute or more extensive reservations to the right of remuneration. Contracting Parties may even set reciprocity (as to particular terms, such as duration of protection, or complete reciprocity) as a condition for according the remuneration right to performers and producers of phonograms who fulfil the criteria of eligibility in relation to another Contracting Party. Paragraph (3) contains an explicit clause referring to reservations attached to reciprocity in Article 16.1(a)(iv) of the Rome Convention. However, Contracting Parties may not make any reservations to this Article, or the rights provided for therein, that would derogate from their obligations to each other under the Rome Convention; Article 1(1) of the proposed Treaty makes this clear.

12.08 In paragraph (4) it is proposed that the possibility of making a reservation to the right of remuneration laid down in this Article would not apply to broadcasting and communication to the public by wire or wireless means which is offered to the public in the form of subscription-based services. The reason for this proposal is that in the context of such services, fixed performances of performers are exploited directly for commercial gain.

12.09 The remuneration right proposed in this Article is an attempt to reconcile two extremes: on the one hand, there is the position that performers and producers of phonograms are not entitled to any right to remuneration in respect of the fruits of their labour; on the other hand, there is the position that the right to remuneration should be broad or even that the right should be exclusive. Written proposals concerning this matter were submitted for the February 1996 session of the Committees of Experts by Argentina, Brazil, the European Community and its Member States, Japan, the Sudan, the United States of America, and Uruguay.

12.10 Article 19 contains provisions concerning the right of remuneration of producers of phonograms; it corresponds closely to this Article. The Notes on Article 19 concerning comparable elements are parallel to those above.

  第19条[参见:http://www.wipo.int/documents/en/diplconf/5dc_ch3.htm]

Article 19
Right to Remuneration for Broadcasting and Communication to the Public

(1) Producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes or reproductions of such phonograms for broadcasting or for any communication to the public.

(2) Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration. In the absence of either national legislation or an agreement between the performer and the producer of a phonogram, the performer and the producer of the phonogram shall equally share the single equitable remuneration between them.

(3) Any Contracting Party may, subject to the provisions of paragraph (4), in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all. In availing itself of this possibility, any Contracting Party may apply the provisions of Article 16.1(a)(iv) of the Rome Convention mutatis mutandis.

(4) The provisions of paragraph (3) do not apply to any broadcasting or any communication by wire or wireless means which can only be received on the basis of subscription and against payment of a fee.

[End of Article 19]

对这一条的说明是:
Notes on Article 19
19.01 Article 12 of the Rome Convention grants to performers and to producers of phonograms the right to a single equitable remuneration if their phonogram is published for commercial purposes or if a reproduction of the phonogram is used for broadcasting or any communication to the public. The remuneration is paid by the user to the performer or to the producer of the phonogram or to both. In the absence of an agreement between these parties, national legislation may lay down the rules that govern the sharing of this remuneration.

19.02 The right to remuneration is subject to the reservations permitted in Article 16 of the Rome Convention. Under Article 16, any state may declare that it will not apply the provisions of that Article or that it will not apply them in respect of certain uses. Furthermore, a state may declare that it will not apply the right to remuneration in respect of phonograms the producer of which is not a national of another Contracting State. A Contracting State may also make the right to remuneration subject to reciprocity as regards the extent to which, and the term for which, another state grants protection to phonograms fixed by a national of the state making such a reservation.

19.03 Article 19 of the proposed Treaty accords to the producers of phonograms a right to equitable remuneration for the use of their phonograms that are published for commercial purposes or the use of a reproduction of such phonograms for broadcasting or any communication to the public. In general, this right corresponds to the right provided for in Article 12 of the Rome Convention.

19.04 Paragraph (1) does, however, propose additional elements that are not included in Article 12 of the Rome Convention. The right to remuneration would cover not only direct uses of phonograms but also indirect uses for broadcasting or for communication to the public. Remuneration should always be received both by performers and producers. In this way, the proposed Article 19 excludes the possibility that producers of phonograms would not receive at least a single equitable remuneration.

19.05 "Broadcasting" and "communication" are defined in Article 2. The definition of broadcasting covers rebroadcasting as discussed in Note 2.23 above. Communication covers all cases of cable or wire transmission, such as cable-originated television transmissions and sound radio by cable or in communication networks. Because the right covers both direct and indirect uses of phonograms, all forms of retransmission by cable and wire also fall within the scope of the right. The definition of communication also covers situations where a phonogram is played directly to the public present at the same location. Indirect communication of a phonogram covers situations where a radio or television set or other apparatus is used to make a phonogram that is included in a broadcast or wire communication audible to the public in a cafe, restaurant, hotel lobby or other place that is open to the public.

19.06 Paragraph (2) permits Contracting Parties to establish rules governing the way in which remuneration is shared between performers and producers of phonograms and the way in which users pay the required remuneration. These are logistical concerns that are beyond the scope of international agreements.

19.07 As noted above, the right to remuneration under the Rome Convention is subject to reservations. This basic structure has been reproduced in the proposed Treaty. The reservations clause in paragraph (3) leaves the degree of reservation open, subject to the provisions of paragraph (4). Contracting Parties ma
y make minute or more extensive reservations to the right of remuneration. Contracting Parties may even set reciprocity (as to particular terms, such as duration of protection, or complete reciprocity) as a condition for according the remuneration right to performers and producers of phonograms who fulfil the criteria of eligibility in relation to another Contracting Party. Paragraph (3) contains an explicit clause referring to reservations attached to reciprocity in Article 16.1(a)(iv) of the Rome Convention. However, Contracting Parties may not make any reservations to this Article, or the rights provided for therein, that would derogate from their obligations to each other under the Rome Convention; Article 1(1) of the proposed Treaty makes this clear.

19.08 In paragraph (4) it is proposed that the possibility of making a reservation to the right of remuneration laid down in this Article would not apply to broadcasting and communication to the public by wire or wireless means which is offered to the public in the form of subscription-based services. The reason for this proposal is that in the context of such services, phonograms are exploited directly for commercial gain.

19.09 The remuneration right proposed in this Article is an attempt to reconcile two extremes: on the one hand, there is the position that performers and producers of phonograms are not entitled to any right to remuneration in respect of the fruits of their labour, on the other hand, there is the position that the right to remuneration should be broad or even that the right should be exclusive. Written proposals concerning this matter were submitted for the February 1996 session of the Committees of Experts by Argentina, Brazil, the European Community and its Member States, Japan, the Sudan, the United States of America, and Uruguay.

19.10 Article 12 contains provisions concerning the right to remuneration of performers; it corresponds closely to this Article. The Notes on Article 12 concerning comparable elements are parallel to those above.

[End of Notes on Article 19]

  然后,美国在12月11日提出了一个修正案(CRNR/DC/48),其中,对上述草案的第12条和19条作出如下建议:

Article 12 — Right to Remuneration for Broadcasting and Communication to the Public

Delete paragraph (4) and replace it with the following three paragraphs:

(4) Notwithstanding paragraphs (1) – (3) of this Article, performers shall enjoy, with respect to their musical performances fixed in phonograms, the exclusive right of authorizing the broadcasting or communication to the public of their performances by digital means by subscription and against payment of a fee for the reception of the broadcast or communication.

(5) Contracting Parties may limit the right established in paragraph (4) to a right of remuneration with respect to broadcasts and communications where the structure and sequence of programming ensures that such broadcasts and communications do not prejudice the performers’ right of distribution under Article 9, or their right of making their musical performances fixed in phonograms available to the public under Article 11.

(6) Contracting Parties may in special cases adopt limited exceptions to the right established in paragraph (4), where such exceptions do not materially impair primary economic uses or the value of the phonograms in which the performers’ performances are fixed.

Article 19 — Right to Remuneration for Broadcasting and Communication to the Public

Delete paragraph (4) and replace it with the following three paragraphs:

(4) Notwithstanding paragraphs (1) – (3) of this article, producers of phonograms shall enjoy the exclusive right of authorizing the broadcasting or communication to the public of their phonograms by digital means by subscription and against payment of a fee for the reception of the broadcast or communication.

(5) Contracting Parties may limit the right established in paragraph (4) to a right of remuneration with respect to broadcasts and communications where the structure and sequence of programming ensures that such broadcasts and communications do not prejudice the producers’ right of distribution under Article 16, or their right of making their phonograms available to the public under Article 18.

(6) Contracting parties may in special cases adopt limited exceptions to the right established in paragraph (4), where such exceptions do not materially impair primary economic uses or the value of the phonograms.

  同一天,加拿大提出了另一个修正案(CRNR/DC/44),其中关于上述草案第12条和19条的内容是:

Articles 12 and 19:

In paragraph (3) of Articles 12 and 19, delete the words “subject to the provisions of paragraph (4).”

Delete paragraph (4) of Articles 12 and 19.

  同一天,瑞士也对第12条提出修改意见(CRNR/DC/38)

Article 12:
Right to Remuneration for Broadcasting and Communication to the Public

Draft Treaty No. 2 generally proposes two alternatives with respect to the rights of performers. The first considers a limitation of those rights to musical performances. The second, on the other hand, extends protection of performers to the audiovisual field. However, the Swiss Delegation is of the opinion that, even if alternative B is chosen throughout the text, there remains a gap with regard to videograms, that is to say audiovisual fixations. Therefore, with a concern for coherence and to ensure that the differentiated approach is also maintained in the context of the right to remuneration for broadcasting and communication to the public, it proposes that Article 12(1) be supplemented by a second alternative.

Alternative A:

The wording of Article 12(1) as given in the Basic Proposal.

Alternative B:

(1) Performers shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms or videograms (audiovisual fixations) published for commercial purposes or reproductions of such phonograms for broadcasting or for any communication to the public.

  第二天(12月12日),一大堆国家(Algeria, Angola, Burkina Faso, Cameroon, Chad, Côte d’Ivoire, Egypt, Ethiopia, Gabon, Gambia, Ghana, Kenya, Lesotho, Libya, Madagascar, Malawi, Mali, Mauritius, Morocco, Namibia, Niger, Nigeria, Senegal, South Africa, Sudan, Togo, Tunisia, United Republic of Tanzania, Zambia and Zimbabwe)就这个问题提出了修正案(CRNR/DC/57及CRNR/DC/57 Rev.):

4. Delete the phrase "for commercial purposes" from the current draft paragraph (1) of Article 12.

7. Delete the phrase "for commercial purposes" from the current draft paragraph (1) of Article 19.

  与此同时,澳大利亚提出将这两条合并起来的修正案(CRNR/DC/54)

The Delegation of Australia proposes that Articles 12 and 19 be merged into a single article to be located in Chapter IV and to read as follows, the new working being shown in bold underlined and the words proposed to be omitted from the Basic Proposal being contained within square brackets and italicized:

"(1) Performers and producers of phonograms shall enjoy a right to a single equitable remuneration for the direct of indirect use of phonograms [published for commercial purposes or reproductions of such phonograms] for broadcasting and for any communication
to the public.

(2) Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration. In the absence of either national legislation or an agreement between the performer and the producer of a phonogram, the performer and the producer of the phonogram shall equally share the single equitable remuneration between them.

(3) Any Contracting Party may, [subject to the provisions of paragraph (4),] in a notification deposited with the Director-General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all. In availing itself of this possibility, any Contracting Party may apply the provisions of Article 16.1(a)(iv) of the Rome Convention mutatis mutandis.

(4) [The provisions of paragraph (3) do not apply to any broadcasting or any communication by wire or wireless means which can only be received on the basis of subscription and against payment of a fee.]

  经过讨论后,当天就WPPT形成了一份新的草案:“PARTLY CONSOLIDATED TEXT”(CRNR/DC/58)其中采纳了澳大利亚的建议,将两条合并为一条,在该草案中序号为第20a:

Article 20a

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 or reproductions of such phonograms for broadcasting or for any communication to the public.

(2) Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration between them. In the absence of either national legislation or an agreement between the performer and the producer of a phonogram, the performer and the producer of the phonogram shall equally share the single equitable remuneration between them.

(3) Any Contracting Party may, subject to the provisions of paragraph (4), in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all. In availing itself of this possibility, any Contracting Party may apply the provisions of Article 16.1(a)(iv) of the Rome Convention mutatis mutandis.

  对于这个新的草案,中国于12月13日提出一个“Amendement to Partly Consolidated Text of Draft Treaty No. 2(CRNR/DC/58) ”[CRNR/DC/71],其中列出了接受、建议删除、建议修改和代表团保留意见的条款。在所列出的“接受”的条款中,包括了上述Article 20a。

   但是,这个Article 20a与WPPT最后文本中的第15条,尽管在第(1)款没什么差别,但在第(4)款,有显著的区别——说明一下,我不清楚为什么WIPO官方网站上的上述Consolidated Text文档中,漏掉了第(4)款,这个Article 20a(3)中提到的第(4)款,应该是最初的草案中的第(4)款,即前面说到的,合并前的第12条和第19条的第(4)款:

“The provisions of paragraph (3) do not apply to any broadcasting or any communication by wire or wireless means which can only be received on the basis of subscription and against payment of a fee.”

   请看现在的WPPT第15条第(3)、(4)两款:

(3) Any Contracting Party may in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all.
(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.

  于是,如果暂时排除中国在这十年中改变了主意的可能,那么中国当年同意Consolidated Text的第20a条,现在又对第15条第(1)款作出保留,就只可能是因为中国对该条的第(4)款——它构成了对第(1)款中“Commercial Purposes”的一个扩张解释——不满。

  于是,让我们分析这个第(4)款:它意味着,在表演者和录音者的广播权这个问题上,只要录音制品是通过有线或者无线的方式,使公众能在其个人选定的时间和地点获取,那么这个录音制品就被“considered as if they had been published for commercial purposes。”[我的理解和美国外交关系委员会1998年提交给参议院的说明是一样的,参见:http://cyber.law.harvard.edu/openlaw/DVD/dmca/er105-25.txt](先暂时不说这个“有线或者无线的方式”实在太夸张,什么都包括了)也就是说,至少在信息网络上传播的录音制品,不管传播者的意愿如何,都as if they had been published for commercial purposes,所以也就落入了第15条第(1)款的范围,所以录音者和表演者就有权获得报酬(至于各国要是规定必须先获得许可,则似乎只不过是超过了条约义务)。

  那么,如果中国的确是因对这款不满而保留的话,也就意味着中国认为:即便使用了第(4)款中提到的方式,但是如果传播者不抱有商业目的,那么就不应当被囊括在第(1)款中。或者换句话说:通过信息网络发表录音制品的制作者,不一定有获得报酬的权利,除非它们真的是为了商业目的而发表这些录音制品。再具体点说:我要是自己录制了一首歌(前提是我获得了词曲作者和表演者授权,或者已经过保护期),然后将这个歌曲文档放在我的Blog上,不要钱供大家听或者下载,那么根据上述对中国的观点的推理,广播台下载了拿去放,或者“用于对公众的任何传播”(第15条第1款),我就不能享有一次性地获得报酬的权利。

  翻翻中国《著作权法》关于录音录象制作者的规定,第四十一条说:“录音录像制作者对其制作的录音录像制品,享有许可他人复制、发行、出租、通过信息网络向公众传播并获得报酬的权利”,也就是说,在中国法上,如果是“通过信息网络向公众传播”,那么录音者不但有权要钱,而且还有权决定是否许可——不论是为了商业目的还是不为商业目的。如果是拿去“广播”,则因为中国著作权法第四十一条中没有“广播”的字眼,所以似乎的确不能主张报酬请求
——可是,这只是“似乎”,注意,中国著作权法第四十一条里有个“复制”——难道,对我放在我Blog上的那段录音,有不“复制”就可以拿去“广播”的可能性吗?

  有!除非“复制”解释为复制在形载体上!可是即使大胆如我,在论文中,都只敢将中国法上的“发行”(distribution)解释为有形载体。否则,很多事都说不通了!

  看来,这个问题,要找谈判人员或者高手请教下。