form in an electronic medium constitutes a reproduction within the meaning of
these Articles.Thus, the Agreed Statement for the WIPO Performances and Phonograms Treaty contains the
same ambiguities noted above with respect to the Agreed Statement for the WIPO Copyright
Treaty.
Similar to Article 7, Article 11 gives producers of phonograms the “exclusive right of
authorizing the direct or indirect reproduction of their phonograms, in any manner or form.” As
in the case of Article 7, an earlier proposed version of Article 11 contained the phrase “whether
permanent or temporary,” but this phrase was deleted in the final adopted version.^58
Both Articles 7 and 11 define the rights recited therein in terms of “phonograms.”
“Phonogram” is defined in Article 2(b) as any “fixation” of the sounds of a performance or of
other sounds other than incorporated in a cinematographic or other audiovisual work.
“Fixation” is defined broadly in Article 2(c) as “the embodiment of sounds or the
representations thereof, from which they can be perceived, reproduced or communicated through
a device.” Storage in RAM would seem to satisfy this definition of fixation. Thus, any
unauthorized transmission of a performance, or of the sounds embodied in a phonogram fixing
such performance, to RAM memory would potentially violate the rights of both the owner of the
performance and of the phonogram.^59
(^58) Article 11(2) in an earlier draft, similar to the proposed and later deleted Article 7(2), was also deleted. Article
11(2) would have provided: “Subject to the conditions under, and without prejudice to the scope of
applicability of, Article 19(2), it shall be a matter for legislation in Contracting Parties to limit the right of
reproduction in cases where a temporary reproduction has the sole purpose of making the phonogram audible or
where a temporary reproduction is of a transient or incidental nature, provided that such reproduction takes
place in the course of use of the phonogram that is authorized by the producer of the phonogram or permitted by
law in accordance with this Treaty.”
(^59) The WIPO Performances and Phonograms Treaty contains a number of important provisions relevant to the
Internet that are not discussed elsewhere in this paper. Article 4 requires Contracting Parties to afford national
treatment to nationals of other Contracting Parties. Article 5(1) affords moral rights to performers:
“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.” A proposed Article 5(4), which was deleted in the final version, would
have allowed any Contracting Party to declare in a notification deposited with the Director General of WIPO
that it will not apply the provisions of Article 5.
Article 6 grants performers the exclusive right of authorizing the broadcasting and communication to the public
of their unfixed performances (except where the performance is already a broadcast performance) and the
fixation of their unfixed performances. Articles 9 and 13 grant performers and producers of phonograms,
respectively, the exclusive right of authorizing the commercial rental to the public of the original and copies of
their performances fixed in phonograms and of their phonograms.
Article 15 provides that “[p]erformers 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.” The Agreed Statement for Article 15 provides: “It is understood that