General remarks As indicated in the questions, they are partly based on an outdated version of the Danish Copyright Act. The present Act on Copyright (Law No. 395 of 14 June 1995) came into force on 1 July 1996. The full text in English was notified to the TRIPS Council in April 1995. The application of the Danish Copyright Act with respect to WTO Members is governed by Section 17 of Ordinance No. 964 of 12 December 1995. Answer As regards the protection of works Section 17(1) of the Ordinance in general applies the principle of national treatment. As regards the protection afforded by the TRIPS Agreement to performing artists and producers of phonograms Section 17(2) applies the principle of national treatment. According to Sections 18 and 19 of the Ordinance blank tape levy, cf. Sections 39-49 of the Danish Copyright Act, is afforded to works, performances, photographs etc., originating in the European Economic Area and with respect to works, performances, photographs etc., originating in other countries, provided that in the country in question a remuneration scheme has been implemented for blank tapes which provides a possibility for payment of remuneration to Danish rightholders.

(a)Protection for protected subject matter from other WTO Members. As the Marrakesh Agreement Establishing the World Trade Organization and annexed Agreements included provisions which belong to the field of legislation, the Parliament of Finland has enacted a law on accepting such provisions in the Agreement and annexed Agreements. This acceptance included the TRIPS Agreement. The law pronounces that the provisions are in force for Finland. According to the constitutional norms the respective substantive laws have to be brought into accordance prior to the entering into force of such a law. A similar law was enacted by the Parliament when the Berne Convention (1971) was brought into force for Finland in 1986. (b)National Treatment An unequivocal national treatment is accorded to all WTO Members as far as copyright and neighbouring rights provided for in the TRIPS Agreement are concerned. (c)Distribution of levies under Chapter 2a of the Finnish Copyright Act There is no right to compensation for private copying in the Finnish Copyright Act. No one can make a claim to receive remuneration, as no rights are involved. The Act provides for an obligation to the manufacturers and importers of blank recording material to pay a levy. The obligation to pay the levy was adopted in accordance with the clause in the Constitution of Finland concerning the imposing payment obligations to the citizen. The proceeds of the levy are used to compensate private copying according to a decision made yearly by the Ministry of Education and Culture. The compensations are paid out to the beneficiaries by organizations representing a large number of them. Nothing precludes distribution to foreign beneficiaries. There is, however, no obligation to do so.

Ireland provides protection for works and phonograms in the Copyright Acts 1963 1987 and provides protection for performances in the Performers Protection Act 1968. Section 43 of the Copyright Act 1963 confers power on the Irish Government to extend the benefit of the Irish Copyright Acts 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 works and phonograms from other WTO Members on the basis of national treatment in the Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 and provides protection for performances on the basis of national treatment in the Performers' Protection (Foreign Countries) (Amendment) Order 1996 S.I. No. 39 of 1996. These Orders extend protection under the Copyright Acts 1963 87 and under the Performers Protection Act 1968 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. There are, however, some of Articles 1 21 of the Berne Convention which Ireland has not so far acceded to. The Paris Act of 1971 introduced amendments to the Convention on (1) translations of official works, (2) protection of architectural works, (3) moral rights of authors, (4) anonymous and pseudonymous works, (5) ownership of rights in film and (6) the recognition of bodies established to protect the rights of unknown authors of unpublished works. The Copyright Acts 1963 1987 do not contain provisions that cover these aspects of the Paris Act. The Irish Government, however, is currently deeply involved in a review of its copyright legislation and is actively preparing a new Copyright Bill which will cover all of Ireland's international obligations. Irish law does not provide for levies for private copying. However, this is another of the areas which we are carefully examining in preparing our new comprehensive piece of copyright legislation.

Articles 185 189 of Law No. 633/1941 provide the principles regulating the protection of foreign authors, on the basis of the same treatment for the national authors. It should be considered that the ratification of an international agreement or convention implies automatically the inclusion of all the rules of the agreement or convention in the national legislation, without any further requirements. So, the provisions of Article 5.1 of the Berne Convention and Article 3.1 of the TRIPS Agreement are part of the Italian legislation. The same principle applies to the rights of the artists, etc. The right for the remuneration for private copying in favour of the authors and the producers of audiovisual works and of videograms is regulated by Article 3, Law No. 93 of 5 February 1992. The remuneration is fixed on the basis of a percentage of the wholesale price to dealers of blank audio and videotapes or other audio and video carriers (audio cassettes, video cassettes and other carriers) and of audio recording equipments; the remuneration is due by whoever manufactures or imports in the territory of the State, for commercial purposes, blank tapes or other blank audio or video carriers, or audio recording equipments. The remuneration is paid to Società Italiana degli Autori de Editori (SIAE) that will distribute it, net of cost, to the authors and to phonographic producers.

Following Article 93 of the Dutch Constitution, a provision in an international treaty to which the Netherlands has become a party can be relied upon in court by individuals provided such provision is in its contents addressed to such individuals and sufficiently clear; that is, no further measures by the national legislative authorities are warranted. Article 47 of the Copyright Act is relevant only in cases where the author is neither a national of a Union (and now: WTO) country nor has published for the first time in such country. Blank tape levies are collected by the independent non profit "Home Copy Foundation" (Stichting De Thuiskopie). For practical reasons, the Home Copy Foundation distributes the levies not to each individual rightholder, but among representative organizations. These organizations in their turn pay out the monies received among the rightholders they represent.

"No less favourable treatment of nationals", as required by TRIPS Article 3, is accorded to WTO Members by Section 232 of the Copyright Act 1994 with respect to copyright and moral rights and Section 204 of the Copyright Act 1994 with respect to performers' rights. Section 232 provides for an Order in Council to be made by the Governor-General so that the provisions of the Copyright Act 1994, except Part IX, apply to citizens or subjects (domiciled or resident) of Convention or other countries in the same way as the provisions apply to citizens, domiciled or resident, in New Zealand. Section 204, which relates to performers' rights, provides for an Order in Council to be made by the Governor-General so that the provisions of Part IX of the Copyright Act 1994 apply to any Convention or other country. An Order in Council has been made by the Governor-General in respect to both Sections 204 and 232 of the Act. This Order is the Copyright (Application to Other Countries) Order 1995 which came into force on 1 January 1996. That Order contains three schedules listing the countries to which the Copyright Act applies. The First Schedule includes all countries which are parties to one, some or all of the Berne Convention, the Universal Copyright Convention or the Agreement Establishing the World Trade Organization. The Second and Third Schedules relate to parties to the World Trade Organization Agreement.

Yes, such protection is provided by virtue of Section 232(2)(c) of the Copyright Act (the Act).

If the question is referring to Berne Article 7, then the answer is no. New Zealand does not apply the "rule of the shorter term". New Zealand provides the conventional term of protection to phonograms and performances from other WTO Members. For phonograms this is 50 years from the end of the calendar year in which the work is made or 50 years from the end of the calendar year in which the phonogram is made available (Section 23). For performances the term of protection is 50 years from the end of the calendar year in which the performance takes place (Section 193).

TRIPS Article 14.2 provides for the producers of phonograms to enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms. A producer may be either the performer or a person, by virtue of a recording contract, who owns the copyright. Copyright in phonograms (sound recordings) is provided for in Section 14 of the Copyright Act 1994. A sound recording is defined under Section 2 of the Act as any medium on which a recording is made or any method by which sounds are reproduced or produced. The owner of copyright has exclusive rights under Section 16 of the Act. These include the rights to copy the work, issue copies to the public and authorize any other person to do either of these. Copyright is infringed by copying, either directly or indirectly. "Broadcast" and "cable programme" collectively include both wireless and non-wireless transmission means and are inclusive of analogue and digital means. A performer's rights are infringed by the use of an illicit recording in a public performance or by inclusion in a broadcast or cable programme, or by copying a recording, either directly or indirectly, if it is known, or it can be reasonably expected, that the performer has not given his/her consent. Domestic or private use does not constitute infringement. New Zealand law, therefore, gives effect to TRIPS Article 14.2.

Reproduction of a phonogram can infringe the rights of an owner of copyright where a person does any restricted act in relation to these rights without the licence of the copyright owner. A restricted act can relate to the whole or a substantial part of the work and be either direct or indirect (Section 28 of the Act). The acts restricted by copyright include the copying of a work, issuing of copies of a work to the public, broadcasting the work or including the work in a cable programme service, and authorizing another person to do any of these acts. In terms of the right concerning broadcasting or including the work in a cable programme service the following matters should be noted: -broadcasting is defined in a manner which can include digital transmission (Section 2(1) of the Acts refers); and -cable programme service includes the sending of visual images, sounds or other information by means of a telecommunication system (which is defined as a system for conveying such images, sounds or other information by electronic means) - Section 2(1) and Section 4(1) of the Act refer. An unauthorized reproduction of a phonogram made by digital transmission in the context of interactive services will, therefore, constitute infringement.

The Copyright Act 1994 provides protection for works, phonograms and performances before commencement of the Act as well as at the commencement of the Act. The First Schedule of the Act details the circumstances in which protection prior to the commencement of the Act will occur. This can include protection in terms of the Copyright Act 1913 and the Copyright Act 1962. In the light of this each case needs to be considered on its own facts. Accordingly, only the general principles which apply are discussed in this response. Protection for works made prior to the commencement of the 1994 Act is provided to WTO Members through Section 230(3) of the Act and through the Copyright (Application to Other Countries) Order 1995. The response to question 1 provides further details on the Order. The Order also clarifies which foreign works are protected in New Zealand as follows: -A foreign work does not qualify for copyright by reference to author if published before the 1962 Act commenced (clause 4(a)), since New Zealand did not provide for such protection to its own nationals prior to this date. Such protection is, however, available after the 1962 Act commenced (clauses 5(1)(a) and 6); -Irrespective of whether a work qualifies for copyright by reference to author, a foreign work will qualify for protection if it is first published in a prescribed foreign country (clauses 7(a) and 8). Protection by reference to country of first publication is not limited in time; -Sound recordings are also covered (clause 9(1)(a)); and -Clause 12 of the Order is a transitional provision which continues protection for any foreign work where copyright existed under New Zealand law immediately before the commencement of the Act but which falls outside the Order. Section 230(3) of the Act applies if: -copyright existed under the 1962 Act immediately before the commencement of the 1994 Act (refer also to clauses 3 and 4 of the First Schedule of the 1994 Act); or -the work is protected in the Convention country and protection had not expired in the Convention country before the commencement of the 1994 Act; or -the work is first published in a Convention country. Where the work is a performance, reciprocal protection is required in the Convention country (Section 204(3) of the 1994 Act). Provision is also made for prior existing works to qualify for copyright after commencement of the 1994 Act if either of the three circumstances in Section 230(3) above apply (clause 5(1) of the First Schedule refers). There are exceptions to this principle. These include the following: -A work which is first published in New Zealand before 1 April 1963, and which was published elsewhere more than 14 days before being published in New Zealand, is not protected (clause 5(2) of the First Schedule). This provision is a transitional provision covering the Copyright Act 1913 which required simultaneous publication to be no more than 14 days (at this time the Berne Convention did not provide for 30 days). The transitional provision ensures that protection is not provided to works which did not qualify under the 1913 Act; -Works which are first protected under the 1962 Act, that is films, broadcasts and typographical arrangements are excepted (clause 6 of the First Schedule). As New Zealand did not provide specific protection for these works (although protection was provided for the individual works comprising a film) prior to the commencement of the 1962 Act, the 1994 Act maintains this exception which applies to both New Zealand and foreign works. The exception is qualified, however, by providing that the 1994 Act will apply in respect to a film that was made before the commencement of the 1962 Act and was an original dramatic work in terms of the 1913 Act; and to a photograph in a film made before the commencement of the 1962 Act and which is an original dramatic work in terms of the 1913 Act (clause 12 of the First Schedule of the 1994 Act); and -Where a work is an artistic work made before the commencement of the 1962 Act; the work is protected under the Designs Act; and the work has been industrially applied it is not protected (clause 28 of the First Schedule). This limits the scope of dual protection for designs consistent with a subsequent amendment to the 1962 Act. In terms of the First Schedule to the 1994 Act (clause 17), protection available for works before commencement of the 1994 Act includes the following: -Literary, dramatic, musical or artistic works (other than a photograph): -generally: 50 years from the death of the author; -computer generated: 50 years from the end of the calendar year in which the work is made; -joint authorship: -published before 1 April 1963: the longer of the period of the life of the first author plus 50 years or 50 years from the life of the author who dies last; -published after 1 April 1963 but before commencement of the Act: 50 years after death of the last author; -unknown authorship: -published before commencement: 50 years from the end of the calendar year in which the work is first made available to the public by an authorized act; -unpublished at commencement: 50 years from the end of the calendar year in which the new copyright provisions came into force or if during that period the work is first made available to the public then as applying to a published work; -Sound recordings: 50 years from the end of the calendar year in which the recording is made; and -Performances: 50 years from the end of the calendar year in which the performance takes place.

(1) Section 230(3) of the Act, together with Section 204, provides for the protection of foreign works in New Zealand. The countries which qualify for the protection provided for in Section 230(3) are listed in the schedules to the 1995 Order as provided for in Section 232(2) of the Act. The 1995 Order also clarifies the way in which foreign works are protected under the Act. Section 235 of the Act provides for the transitional provisions in the First Schedule to the Act to have effect for the purposes of the Act. The First Schedule applies to all works, both domestic and foreign. The Schedule contains the transitional and savings provisions ensuring consistency between the 1994 Act and previous legislation. It also makes provision for works which span the commencement of the 1994 Act and earlier legislation. This includes retroactive protection. (2)Prior to 1962 New Zealand only provided for works to qualify for copyright by reference to first publication in New Zealand or a prescribed foreign country. Works of the type mentioned in the supplementary question may, therefore, not qualify for copyright although it should be noted that the list of prescribed foreign countries is broader than just WTO Members. It also includes members of the Berne Convention and the Universal Copyright Convention and therefore currently includes some members of these conventions who are not yet members of the WTO. (3) Either December 1945 or a later date, if within that period, it is made available to the public (Section 23(1)). (4) Either December 1945 of the term provided for in another country where this has not already expired (Section 170(2)). (5) - Sound recordings before the commencement of the 1913 Act unless copyright already existed. - Performances before 1945. - Artistic works intended for industrial application before the commencement of the 1962 Act. - Cinematograph films before the commencement of the 1962 Act (although copyright was possible in the works comprising a film for example, the dramatic work). - Television and sound broadcasts made in New Zealand before the commencement of the 1962 Act and television and sound broadcasts made overseas before the commencement of the 1994 Act. - Typographical works before the commencement of the 1962 Act. - Anonymous or pseudonymous works before the commencement of the 1962 Act. - Models before 1985.

New Zealand provides copyright protection for cinematographic works by virtue of Section 14 of the Copyright Act 1994 which includes dramatic works (screen plays), musicals, sound recordings and films as original works to which copyright applies. Section 16 of the Act provides copyright owners with exclusive rights in respect to their works. These include rights in respect to copying a work, showing the work in public and broadcasting the work or including the work in a cable programme service. In respect to adaptation, a copyright owner of a literary, dramatic or musical work has an exclusive right to make an adaptation of his/her work (Sections 16 and 34 refer). This includes an adaptation of a screen play. In respect to films, no specific adaptation right is provided since it is considered that an "adaptation" of a film is not possible without infringing one of the rights already existing in the work. This could, for example, involve adapting the screen play in which case the author's rights will have been infringed or adapting the music in which case there could be an infringement associated with the words or the performance. If the film is copied, then this will be a breach of the copyright owner's exclusive right in regard to copying. It is possible that a new work could be created, in which case it will become an original work entitled to copyright.

An adaption of the type mentioned in the original response is one where infringement could occur if a substantial part of the existing work is being used in the creation of the new work. Nevertheless, copyright can exist in the new work.

Sections 12(6) and 76 of the Copyright Act allow the Crown to use copyright works associated with medicines imported under the Medicines Act without infringing copyright. This enables the Crown to import legitimately produced copies of off-patent medicines where a medicine is not being supplied to the New Zealand market or is only available on unreasonable terms. The Crown can, therefore, ensure that the New Zealand public is not deprived of the benefits of the medicine. (This power has not been used by the Crown.) Accordingly, these provisions are not encompassed by Berne Article 9(2), which does not cover distribution rights. Neither is it covered by TRIPS Article 13 by virtue of TRIPS Article 6 (exhaustion of intellectual property rights).

Incidental copying, whether accidental or intentional, of a copyright work is provided for so long as the focus of the work containing the copied item is not that of the included item. It should be noted, however, that the deliberate copying of certain works is specifically excluded. The intention, therefore, is not to unreasonably prejudice the legitimate interests of the author (Berne Article 9(2)). By way of an example, the reporting of a news event, which included a television broadcast present in the background, and therefore incidental to the broadcast, would not infringe copyright in the broadcast which was accidentally shown.

New Zealand considers that Sections 44-48, 68, 70, 71, 79, 81, 87, 186 and 188 comply with Berne and TRIPS, by virtue of being permitted exceptions and limitations on the rights granted under these two treaties for the reasons outlined below: -Sections 44-48 are concerned with educational purposes. Provision is made in certain circumstances for copying to be done for educational purposes; the performing, playing or showing a work in public for educational purposes; and the recording of a broadcast or cable programme for educational purposes. These limitations on owners' rights are, however, tightly prescribed including, in the case of copying of a sound recording or recording a broadcast or cable programme, not permitting the copying or recording where licenses are available under a licensing scheme. Sections 44-48 do, therefore, comply with Berne Articles 9(2) and 10(2) and TRIPS Article 13; -Section 68 is intended to deal with the situation where, for example, there is a speech or oration delivered without any notes. As copyright can only vest in a tangible expression of a work, this provision enables the speaker to obtain copyright by virtue of the speech or oration having been written down or broadcast while also enabling the writer or broadcaster, as the recorder, an opportunity to use the recording. Such use is, however, subject to limitations including the right of the speaker to prohibit the recording; The provision is considered necessary in order to comply with Berne Articles 2(1), 7(1), 8, 9(1), 10(1), and 10bis(1). The limitations in Section 68(1) are considered to provide appropriate protection for the copyright owner in terms of Berne Article 9(2) and TRIPS Article 13; -Section 70 concerning a public reading or recitation complies with Berne Articles 9(2) and 11ter since it is limited to a reading: -by one person only; -only to a reasonable extent; -which provides sufficient acknowledgement; and -which, if it involves a sound recording or broadcast, is using mainly material other than the public reading or recitation; -Section 71, concerning abstracts of scientific or technical articles, is in compliance with Berne Article 9(2) and TRIPS Article 13 in that abstracts are not a reproduction of the work and do not, therefore, conflict with the normal exploitation of the work nor unreasonably prejudice the legitimate interests of the author; The abstracts are intended to aid in the dissemination of information. It is arguable that the abstracts are original works in their own right and, therefore, enjoy copyright protection; -Section 79 permits educational establishments and libraries to rent non-infringing copies of computer programmes, sound recordings or films for non-profit reasons. As TRIPS Article 11 is only concerned with "commercial rental", this exception is permissible; -Sections 81 and 186 relate to the playing of a sound recording in a club, society or other organization which is primarily concerned with religion, education or social welfare, which is not established for profit and where any proceeds from admission are applied for the benefit of the club, society or organization. As these provisions only provide for playing sound recordings and not reproducing sound recordings they are not inconsistent with Berne or with TRIPS Articles 14.1 and 14.2. In respect to TRIPS Article 13, the purpose and nature of the limitations are consistent with this Article; and -Section 188 provides for the playing or showing of a broadcast or cable programme to an audience not paying for admission to the place where the broadcast or cable programme is heard. It includes, for example, prisons and clubs or societies but does not include hotels, motels or camping grounds. The limitation on this exception is in terms of TRIPS Article 14.6 and is consistent with TRIPS Article 13.

The exceptions referred to in this question fall within the permissible limitations on rights envisaged in Berne and TRIPS either because the exceptions have been tightly proscribed, for example, Sections 44-48 of the Act relating to education or because the exception by its nature does not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of an author, for example, abstracts of scientific or technical articles.

Sections 45, 48, 88 and 91 of the Copyright Act 1994 allow copying in some particular circumstances. However, if a licensing scheme for copyright owners is in operation such copying can only be undertaken in terms of the license. For example, schools are permitted to copy broadcasts under Section 48(1). Once a licensing scheme is established they will no longer be able to do so under Section 48(2) unless they comply with the requirements of the license. A licensing scheme is defined in the Act (Section 2), as a scheme which sets out: "(a)the classes of cases in which the operator of the scheme, or the person on whose behalf the operator acts, is willing to grant copyright licences; and (b)the terms on which copyright licences would be granted in those classes of cases ..."

Section 192 of the Copyright Act 1994 provides that an independent tribunal, the Copyright Tribunal, may make an order giving consent to the making of a copy of a recording. In making any order under the Section, the Tribunal must consider a number of matters. These matters include consideration of whether the withholding of consent by the performer relates to the protection of any legitimate interests of the performer and whether payment should be made to the performer. New Zealand considers that the applicable Rome provision is Article 15.2. This permits limitations in respect to the rights of performers where similar limitations are provided for in respect to copyright. As New Zealand provides for licensing schemes in regard to copyright (Section 153 of the Act refers), Rome Article 15.2 permits similar limitations in respect to performers. [Follow-up question] To the extent that compulsory licenses are granted in New Zealand for the reproduction of fixations of live performances or other sound recordings, what criteria are applied to the grant of such licenses and what limitations are incorporated into such licenses? How is the grant of such licenses consistent with TRIPS Article 13? The making of an order by the Copyright Tribunal requires that the Tribunal has regard to a number of matters before making an order thereby ensuring consistency with TRIPs Article 13. These include the following matters (section 192 of the Act): - There has been compliance with the serving or publication of notices. - The performer's reasons for withholding consent do not include the protection of any legitimate interests of the performer. - The recording from which it is proposed to make a copy was made with the performer's consent and is lawfully in the possession of the person proposing to make the copy. - The making of a copy of the recording is consistent with the obligations of the parties to the arrangement under which the recording was made or is otherwise consistent with the purposes for which the recording was made. If an order is made after taking these matters into account and the parties do not agree on payment, then the Tribunal shall make an order as it sees fit.