According to the EC Directive 93/98 EEC and the new draft amendment, the duration of the protection is granted to works created in the European Union. The new draft of an amendment will extend the grant to works created in a WTO Member State. Article 17 of the neighbouring rights law provides however clearly that the effects of international conventions, such as the TRIPS Agreement, are prevailing.

Yes.

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.

Because the TRIPS Agreement only entered into force in January 1996, there is no case law yet. However, the possibility of direct applicability of provisions of the Berne Convention was already accepted in a Supreme Court Decision in 1936 (Decision NJ 443 of 13 February 1936). Please confirm that all revenues generated from the imposition of blank tape levies in the Netherlands are distributed on the basis of national treatment to rightholders from all WTO Members, regardless of the type of rightholder. Under the Dutch system, different types of rightholders are represented by separate organizations, so payments are not made irrespective of the type of rightholder. The system provided for in the Netherlands is as follows. The Home Copy Foundation distributes the monies according to a schedule which has been approved by the Ministry of Justice. The schedule distinguishes between audio and video tapes. Three organizations receive audio revenues; four others are entitled to the video revenues. These private organizations in turn distribute amongst (organizations of) rightholders. The main organization, Stemra, has informed us that it does so both to (organizations of) Dutch and foreign rightholders. Stemra's own regulation provides for distribution on the basis of "rights and entitlements by force of law, treaty or regulation wherever in the world". They liaise with their counterparts in other countries.

No. The term of protection under the Act on Neighbouring Rights is 50 years.

As to the first part of the question, we confirm that the relevant parts of Article 6 of the Act on Neighbouring Rights read as follows: Article 6(1): "The producer of phonograms has the exclusive right to give permission for: "(c)the broadcasting or re-broadcasting or otherwise making public the phonogram produced by him or a reproduction thereof." The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at a national and international level.

As to the first part of the question we confirm that the relevant parts of Article 6 of the Act on Neighbouring Rights read as follows: Article 6(1): "The producer of phonograms has the exclusive right to give permission for: "(...) "(c) the broadcasting or re-broadcasting or otherwise making public the phonogram produced by him or a reproduction thereof." The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at a national and international level.

The provisions of Berne including its Article 18 have been applicable in the Netherlands since its accession on 1 November 1912. As from 1 January 1996 the term of protection under the Copyright Act is 70 years. Neighbouring rightholders are protected by the Act on neighbouring rights of 1993. The term of protection under the Act on neighbouring rights is 50 years. The protection extends to performances which took place before the Act entered into force. The same applies to phonograms which were made before that date. The wording of the relevant provision in the Act is quite general, which means that the protection could extend to fifty years before the Act went into force.

Further to its decision of 21 November 1995, the TRIPS Council has presented all Member States with a checklist of issues on enforcement (Doc. No. IP/C/5 of 30 November 1995) which fully covers your question 5. All lists will be reviewed in 1997.

Databases that constitute works in the sense of the Copyright Act are protected as collective works under Article 5 of the Copyright Act. A database will constitute a work in the sense of the Copyright Act, if it is an intellectual creation by reason of the selection or arrangement of its contents.

The Copyright Act was amended by Act of 7 July 1994 (Stb. 521). Computer programmes were then included within the list of Article 10. Also special provisions on computer programmes were laid down in the Articles 45h to 45n.

The Copyright Act and the Act on Neighbouring Rights were amended by Act of 21 December 1995 (Stb. 653) and by Act of 21 December 1995 (Stb. 641). Rental rights in, inter alia, computer programmes and phonograms, were then granted. The Articles 12, 12a, 15c to 15g, 35d and 45d of the Copyright Act and the Articles 2a, 6, 7a, 8, 11, 15a 15d, 17, 19, 20, 27a and 32 of the Act on Neighbouring Rights provide for these rights.

(a)Article 16 of the Copyright Act provides for the use of works for teaching purposes. It is based on Article 10(2) of the (Paris Act of the) Berne Convention. Article 10(2) of the Berne Convention provides that the use of works for teaching purposes is a matter for national legislation provided the use is compatible with fair practice. Article 16 of the Copyright Act is within the limits set by Article 10(2) of the Berne Convention and within those set by Article 13 TRIPS. Also it does not differ widely from provisions in other national laws on this subject. (b)Articles 16b and following, and 17 of the Copyright Act provide for the right of reproduction of written works and for the exception for private use. The exception for private use falls within the scope of Article 9(2) of the Berne Convention, which provides that exceptions to the right of reproduction are, again, a matter for national legislation, provided the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rightholder. The exceptions for private use which are granted in Articles 16b and 17 of the Copyright Act are not broader than those granted in other legislations. They are within the limits which are set by Article 9(2) of the Berne Convention and Article 13 TRIPS. (c)Article 17a of the Copyright Act provides that, in the general interest, a legal licence may be granted with respect to the publication of a work by means of radio or television broadcasting or the distribution by wire or otherwise and with respect to the production of phonograms. Article 17a is based on Articles 11bis(2) and 13 of the Berne Convention, which leave this matter to national legislation. Article 17a does not differ from similar provisions in other laws. Article 17a dates back till 1931, when it was included on behalf of radio broadcasting and the distribution by wire. The provision has never been applied.

As stated in the original answer, the limitations mentioned in Articles 16, 16b and 17 of the Netherlands Copyright Act are within the limit set by the Articles 10(2) and 9(2) of the Berne Convention and consequently comply with Article 13 TRIPS. The mentioned articles of the Netherlands Copyright Act have seldom been applied (see for example: Supreme Court Decision of 22 June 1990, published in NJ 1991, 268; District Court of Amsterdam, Decision of 31 January 1980, published in Autersrecht 1980/2; District Court of Alphen aan de Rhijn Decision of 16 April 1985, published in AN I, 1987/2; Superior Court of Amsterdam, Decision of 20 November 1980, published in Autersrecht 1981/3). (b)Articles 16b and following, and 17 of the Copyright Act provide for the right of reproduction of written works and for the exception for private use. The exception for private use falls within the scope of Article 9(2) of the Berne Convention, which provides that exceptions to the right of reproduction are, again, a matter for national legislation, provided the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rightholder. The exceptions for private use which are granted in Articles 16b and 17 of the Copyright Act are not broader than those granted in other legislations. They are within the limits which are set by Article 9(2) of the Berne Convention and Article 13 TRIPS. (c)Article 17a of the Copyright Act provides that, in the general interest, a legal licence may be granted with respect to the publication of a work by means of radio or television broadcasting or the distribution by wire or otherwise and with respect to the production of phonograms. Article 17a is based on Articles 11bis(2) and 13 of the Berne Convention, which leave this matter to national legislation. Article 17a does not differ from similar provisions in other laws. Article 17a dates back till 1931, when it was included on behalf of radio broadcasting and the distribution by wire. The provision has never been applied.

"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.