The 50 years term applies to all WTO Members in respect of producers of phonograms as well as artists and performers, as provided in Article 14 of the TRIPS Agreement.

Article 72 of the Law No. 633/1941 provides (according to the EEC Directive No. 92/100) that "the producer of a phonographic record or of any other similar contrivance for reproducing sounds or voices shall have the exclusive right, for the period and under the conditions laid down in the following articles, to reproduce, by whatever duplication process, and distribute the said record or contrivance of his production". Moreover, according to the same article, (paragraph 2) "The producer of a phonogram has also the exclusive right to lease and loans, as well as the right to authorize the lease and loan of the phonograms of his production. This right is not exhausted with the sale or distribution, in whatever form, of the phonograms". According to Article 73 of the same law, "The producer of the phonographic record or of any similar contrivance for reproducing sounds or voices, as well as the artists who interpreted or performed the interpretation or the performance recorded or reproduced on the said contrivances, shall be entitled, independently of the rights of distribution, lease and loan pertaining to them, to remuneration in exchange for the utilization, for purposes of gain, of the record or of the similar contrivance through broadcasting, cinematography, television, in public dancing parties, in public premises and on the occasion of any further public utilization of the said contrivances. The producer shall be entitled to exercise the aforesaid right, and shall share out the remuneration among the artists who acted, interpreted or performed the work". The artists who interpret or perform and the producer of the phonogram which was utilized shall be entitled according to Article 73bis to fair remuneration also when the utilization as per Article 73 was not effected for purposes of gain. According to Article 80 of the Law No. 633/1941 (as modified by Article 13 of the Dlgs No. 685/1994) artists who interpret or perform shall have the exclusive power, regardless of any remuneration to which they may be entitled for their live artistic performances: (a)to authorize recording of their artistic performances; (b)to authorize reproduction, whether direct or indirect, of the recordings of their artistic performances; (c)to authorize broadcasting by air and communication to the public, in whatever form and manner, of their live artistic performances, unless the latter were intended for broadcasting by radio or television or are already the subject or a recording for broadcasting purposes; (d)to authorize distribution of the recordings of their artistic performances; (e)to authorize lease or loan of the recordings of their artistic performances and of the reproduction thereof: The Rome Convention has been ratified by Italy; on June 1995, Italy confirmed some of the reservations already notified, as foreseen by the Convention; among these, the reservation relating to Article 5.3 of the Berne Convention. Consequently, Italy is protecting phonograms on the basis of the criterion of "fixation", this criterion being considered more clear and rigorous compared to the other two criterions of nationality and publication. It should also be remembered that, with Law No. 406 of 5 May 1975, Italy ratified the Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms.

Under Article 13 of the Italian Copyright Law No. 633/1941, the authors' right of reproduction "has for its object the multiplication of copies of the work by any means". The wording therefore applies to all kinds of reproduction, including those made from broadcasting or by digital means. Article 72 of the law specifically provides the same rule for the reproduction of phonograms. The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at national and international level.

Article 18 of the Berne Convention reserves the protection to works which at the moment of its coming into force have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. Paragraph 2 of the same article excludes that a work that has fallen into the public domain in the country where the protection is claimed, could be protected anew on the basis of the new terms of the minimal duration of the protection provided for by the Berne Convention. Article 70 of the TRIPS Agreement recalls Article 18 of the Berne Convention so far as the works, phonograms and performances in conformity with the established criteria are concerned, thus implying that the protection must be given to all works which are not fallen into the public domain, as to the neighbouring rights. Article 10.2 of EEC Directive No. 93/98 establishes however that the new long duration of the protection there provided for in favour of copyright and neighbouring rights "applies to any work and subject matter which is protected in at least one of the Member States at the date of 1 July 1995". Article 17 of the Law of 26 February 1996, No. 52 (integrated by Article 9 of the D.L. of 22 June 1996, now being converted into law), actuating such a directive, after having increased the terms of duration of the protection of copyright and neighbouring rights, in conformity with the EEC Directive, has extended the new terms previously into force (Article 17.2), provided always that in application of such terms the aforesaid works and right fall into protection at the date of 29 June 1995 (Article 9.2 of the D.L. No. 331/1996): this means that the protection for neighbouring rights goes back to 30 June 1945 and to 30 June 1926 for copyright.

These aspects will be examined in the second half of 1997.

The compilations of data or other materials that, due to their selection or disposition of their contents constitute intellectual creations, find protection, in terms of "copyright" under the EEC Directive on the legal protection of databases, approved in March 1996. Italian law, at the moment, is protecting the collection, or anthologies of various works already "per se" protected (Articles 3 and 38, and subsequent of the Law No. 633/1941) in conformity with what is provided for by Article 2.5 of the Berne Convention. Italy, however, is obliged to implement the EEC Directive within the terms therein indicated (December 1997) and thus implementation of Article 10 of the TRIPS Agreement shall, of course, be in conformity with what is provided for in the aforesaid EEC Directive.

S.I. No. 158 of 1995 European Communities (Term of Protection of Copyright) Regulations 1995 provides for 50 years protection for phonograms in line with the contents of Council Directive 93/98/EEC harmonizing the term of protection of copyright and certain related rights. The Performers Protection Act 1968 prevents the making of unauthorized records, films and broadcasts of performances. Section 43 of the Copyright Act 1963 confers power on the Irish Government to extend benefit of this Act to other countries. Section 12 of the Performers Protection Act 1968 provides similar powers in respect of performances. Irish law provides protection, inter alia, for phonograms from other WTO Members in the Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 and provides protection for performances in the Performers' Protection (Foreign Countries) (Amendment) Order 1996 S.I. No. 39 of 1996. These Orders extend copyright protection to countries which have ratified or acceded to the Marrakesh Agreement Establishing the World Trade Organization Done at Marrakesh on 15th day of April 1994.

Section 17 of the Irish Copyright Act 1963 provides protection against both the direct and indirect reproduction of phonograms. However, section 13 of the Copyright Act 1963 provides for special exceptions in respect of records of musical works. This is an area which is being carefully looked at in preparing Ireland's new copyright legislation. This new piece of legislation will cover all of Ireland's international obligations. Section 43 of the Copyright Act 1963 confers power on the Irish Government to extend benefit of this Act to other countries. The Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 (which provides, inter alia, protection to phonograms) extends copyright protection to countries which have ratified or acceded to the Marrakesh Agreement Establishing the World Trade Organization Done at Marrakesh on 15th day of April 1994. Digital transmission in the context of interactive services was not part of the negotiations which took place during the establishment of the TRIPS Agreement.

Section 17(4) of the Copyright Act 1963 specifically sets out the acts restricted by copyright in a sound recording. These include reproductions made from a broadcast and, we believe, reproductions resulting from a digital transmission. As regards digital transmissions, this is a matter for interpretation by the Courts and there is no case law to date on this subject matter.

Ireland provides full retroactive protection to works, phonograms and performances. Section 174 of part VI of the Industrial and Commercial Property (Protection) Act 1927 Preservation of existing copyrights states, inter alia: "(1)The repeal of the Copyright Act 1911 by this Act shall not save as is otherwise expressly provided in this part of this Act add no, derogate from, or otherwise affect any copyright or other right acquired before the 6th day of December 1921, under or by virtue of the Copyright Act 1911, or any order made thereunder." The Copyright Act 1963 makes new provision in respect of copyright and related matters. Section 38 of part VIII of the Copyright Act 1963 states: "(1)Except in so far as it is otherwise expressly provided in this Schedule, the provisions of this Act apply in relation to things existing at the commencement of those provisions as they apply in relation to things coming into existence thereafter. "(2)For the purposes of any references in this Schedule to works, sound recordings or cinematograph films made before the commencement of a provision of this Act, a work, recording or film, the making of which extended over a period, shall not be taken to have been so made unless the making of it was completed before the commencement of that provision." The Performers Protection Act 1968 prevents the making of unauthorized records, films and broadcasts of performances. Section 43 of the Copyright Act 1963, confers power on the Irish Government to extend benefit of this Act to other countries; section 12 of the Performers Protection Act 1968, provides similar powers in respect of performances. The Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 (which provides, inter alia, protection to works and phonograms) and the Performers' Protection (Foreign Countries) (Amendment) Order 1996 S.I. No. 39 of 1996 (which provides protection for performances) extend protection to countries which have ratified or acceded to the Marrakesh Agreement Establishing the World Trade Organization Done at Marrakesh on 15th day of April 1996.

The exceptions to retroactive protection referred to in paragraph I of Section 38 of Part VIII of the Irish Copyright Act are to be found in the First Schedule of the Act which relates to Transitional Provisions. (A copy of the First Schedule of the Act is attached). (i)The interpretation of these provisions is a matter for the Courts and, as far as we can ascertain, there has been no case law on these transitional provisions in the Irish courts. Until such time as there is, the interpretation of the precise content of the provisions will have to remain open. (ii)The Performers' Protection Act, 1968 does not apply to pre-existing performances.

Computer programmes are protected as literary works in Irish law. Council Directive No. 91/250/EEC which protects computer programmes as literary works was transposed into Irish law by S.I. No. 26 of 1993 European Communities (Legal Protection of Computer Programmes) Regulations 1993. This protection for computer programmes as literary works was further encompassed in the Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996, which extends copyright protection to countries which have ratified or acceded to the Marrakesh Agreement Establishing the World Trade Organization Done at Marrakesh on 15th day of April 1994. Section 2(1) of the Copyright Act 1963 defines "literary work" as including any written table or compilation. The acts restricted by the copyright in a literary, dramatic or musical work are detailed in section 8(6) of the Act. Directive 96/9/EC of the European Parliament and of the Council on the Legal Protection of Databases must be implemented into Irish law. This will be done in the context of our new Copyright Act which is currently being prepared.

There are no provisions in Irish law at present which provide a rental right for producers of sound recordings, cinematographic works and computer programmes. This is another area which is being carefully examined in the context of Ireland's current overall review of copyright and the preparation of our new Copyright Act. Indeed, EU Council Directive of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be implemented into Irish law in this new legislation.

(i)With regard to the expected timetable for Ireland's new legislation, Ireland is currently in the process of drafting Heads of Bill for the Parliamentary Draftsman, who will draw up an appropriate bill. It is our intention to have these draft Heads completed and submitted to the Parliamentary Draftsman by the end of this year. A bill will then be brought before Parliament as soon as possible thereafter. Additional resources have been assigned to this task and Ireland is treating this as a matter of priority. (ii)With regard to any changes that will be made to Irish Law, it is not possible to give an absolute indication of what will be contained in the final text, as this matter must go before Parliament. However, the bill will take account of the necessity to comply with our international obligations.

The UK has no blank tape, equipment or any other levy for private copying, which is why it answered that there are no provisions relating to the distribution of levies.

The UK term of protection for producers of sound recordings and performers is 50 years from the end of the calendar year in which the recording is made (i.e. fixation) or the performance takes place respectively, that is the minimum term set out in Article 14.5 of TRIPS. If during this period the recording, or a recording of the performance, is released, the term expires 50 years from the end of the calendar year in which it is released. US producers and performers will only receive a term longer than 50 years, which can apply where a recording is not released in the year it is made or the year of the performance, if the term is not longer than that applying in the US.

Under UK law, copyright in a sound recording gives the owner of copyright the exclusive right to copy the work (see Section 16(1)(a) of the 1988 Act) and action is possible for copyright infringement where unauthorised copying of the sound recording occurs. Moreover, Section 16(3)(b) specifically states that this restricted Act applies whether done directly or indirectly and regardless of whether any intervening Acts infringe copyright. This will cover copying of a sound recording from a digital transmission.

The UK has already said in its original answer that the reproduction right for an owner of copyright in a sound recording will cover copying of a sound recording from a digital transmission. Copying of a sound recording from a broadcast, whether digital or otherwise, will also be covered by the reproduction right for the same reasons as set out in the original answer.

Copyright works, including phonograms (which are treated as such - see answer to question 1), and performers from other countries are protected as explained in answer to Question 1. There is no single date to which the protection extends back since protection is always future protection but is given in respect of an existing copyright work or recording of a particular performance after it has qualified for protection in respect of any period which continues to subsist calculated from the date prior to qualification on which the work or recording of that performance was made, as required by TRIPS. Whether protection exists therefore depends upon whether the term, which would have applied to a particular work or recording of a performance had it always been protected, has expired. Existing sound recordings made from at least as long ago as 1946 may be protected in the UK. The Copyright, Designs and Patents Act 1988 (which has been amended by the Duration of Copyright and Rights in Performances Regulations 1995) in paragraph 12 of Schedule 1 confirms the term of protection in the Copyright Act 1956 for sound recordings made before 1 June 1957 (i.e. the date of commencement of the 1956 Act). The 1956 Act in paragraph 11 of Schedule 7 gives a term of 50 years from making for sound recordings made before commencement of the Act. The 1995 Regulations may result in sound recordings made before 1946 being protected. For literary, dramatic, musical and artistic works, under the 1995 Regulations mentioned above, protection may apply to existing works where the author died 70 years ago, i.e. in 1926. The 1988 Act, which the 1995 Regulations amend, confirmed the protection for works made before commencement of that Act in paragraph 12 of Schedule 1 by reference to Sections 2 and 3 of the 1956 Act, which should be read in the light of the transitional provisions in Schedule 7 of the 1956 Act with regard to works existing before commencement of the 1956 Act. The Copyright (Application to Other Countries) Order 1993 as amended by the 1995 Order mentioned above gives effect to retroactive protection, subject, of course, to the term of protection having not already ceased, for all copyright works from all WTO countries. The 1995 Order does not restore any copyright because Article 18 of Berne does not require works that have already fallen into the public domain through expiry of copyright protection to be protected. Article 7 of the 1993 Order (amended by the 1995 Order) gives some protection to those who have or may be about to use a work newly protected by copyright. Article 7 allows the continued doing of certain acts unless the copyright owner pays compensation as settled by arbitration in the absence of agreement. How long the Act can be continued would depend on whether the Act fell within the scope of the Article. It would ultimately be for the courts to decide whether this is the case in any particular circumstances. As far as performers rights are concerned, the 1995 Order mentioned above in reply to Question 1 grants reciprocal protection, i.e. the same as that applying under Part II of the Copyright, Designs and Patents Act 1988 to UK performers (except where there are limitations on this reciprocity as is indicated in the relevant Order). TRIPS Article 14.6 requires Article 18 of Berne to extend only to those rights of performers in sound recordings granted by TRIPS. By definition, the only right relevant here is the right to authorise the reproduction of a fixation of a performance. Section 180(3) in Part II of the 1988 Act ensures that insofar as rights in recordings are concerned, those rights apply after qualification to recordings of performances made prior to qualification except that no act carried out in relation to such a recording either prior to qualification, or after qualification but in pursuance of arrangements made before qualification, can be an infringement of rights arising after qualification. As with copyright, the extent to which existing performances are protected depends on whether the term of protection, had the performance always been protected, has already expired.

It is the UK's understanding that questions relating to the enforcement of intellectual property rights are to be considered later in the scrutiny process. Nevertheless, we would refer you to the UK's response to the checklist on enforcement which will be circulated shortly for details on the enforcement of intellectual property rights in the UK. Should you require any further clarification or if you have any follow-up questions then we would be pleased to discuss them on a bilateral basis or later in the scrutiny process when issues relating to enforcement are addressed.