Compilations of data or other materials are protected by copyright if they are works in the copyright sense. The normal requirements for eligibility, the criterion of originality, apply. The sui generis right under Article 49 is an additional specific right. It does not exclude copyright in any database. The criterion of eligibility is completely different from that of copyright. It is lower as the sweat of the brow principle. The right is accorded to any maker of catalogue if a large amount of information items are compiled within the product. This form of protection has no relation to the protection provided for databases under TRIPS Article 12.

9. Please explain the difference in the type of use involved between the first and second sentence of Article 4 of the Copyright Act. In particular, please explain: the meaning of “using freely”; and whether the concept of “new and independent work” differs from a copyrightable adaptation generally.

(a)Article 15: Senior citizens' homes etc. The cases are special cases. The recording is done when the people sleep in order to watch the programme the next morning. (b)Article 18: Anthologies The case is special. The rightholder is entitled to a compensation. The exception may be invoked only five years after the publication of the work. The clause has been used in the publication of textbooks for educational purposes. The terms have always been agreed between the rightholders' associations and the publishers. The compulsory element has not been used in practice. The article prevents use of parts of works which were created for educational purposes in anthologies produced for educational purposes. This restriction is based on Berne 9(2). (c)Article 21: Certain public performances This is the most typical example of use of "minor reservations" in the Finnish Copyright Act. All the articles in (a) to (c) above are in full compliance with Berne 9(2) and TRIPS 13.

(a) Article 15 The provision in Article 15 means only time shifting. The use of the audio and video recordings is limited only to listening or watching the programme the next day. After that the recordings are meant to be erased. (b) Article 21 Paragraph 1 Performing a published work in connection with education means performing it in ordinary educational events at school. If works are performed in the school building but not in connection with education, e.g. in the evening after the school day, this provision shall not apply. Performing a published work at divine services means performing it at divine services which are arranged regularly on Sundays or other holy days. This provision shall not apply in other activities in parishes. Paragraph 2 The criteria settled in this provision are quite detailed and restrictive. The events meant in this provision are unusual in practice because performing artists rarely perform for nothing. We are not aware, at this time, of practical instances where this provision has been applied. These provisions contain examples of minor reservations allowed under the Berne Convention. Finland considers that Articles 15 and 21 of its Copyright Law is in full compliance with Articles 9(2) of the Berne Convention and 13 of the TRIPS Agreement.

The remedies available for copyright infringement have been described in detail in the Checklist of Issues on Enforcement. The criminal and civil remedies available fulfil the mentioned obligations in TRIPS. Enforcement provisions of the TRIPS Agreement will be reviewed separately in the second half of 1997.

I. First sentence National treatment in favour of WTO Members operates as follows: (a)Authors (excluding phonogram producers and performing artists who both are, as such, neighbouring rightholders under German law). 1.Section 120 Copyright Act provides protection for works of authors of German nationality irrespective of the place of publication and irrespective of whether publication has at all occurred. 2.Section 121, paragraph 1 provides protection for works first or simultaneously published in Germany, irrespective of the nationality of the author. 3.Section 121, paragraph 4 provides protection for works of foreign authors to the extent provided by international agreements to which Germany is a Contracting Party. Such agreements are the Berne Convention as well as the TRIPS Agreement. The national treatment obligation under Articles 3 and 9, paragraph 1 TRIPS is thus materially incorporated in the Copyright Act. Consequently, the extent of the protection of foreign authors under this section depends exclusively on the interpretation of these treaty provisions, because the protection of German authors under German law - see section 120 above - is not limited by any further criterion of eligibility. The exceptions from national treatment provided for in the Berne Convention and accepted under Article 3 TRIPS are also materially incorporated in German copyright law by section 121, paragraph 4. (b)Phonogram producers 1.Section 126, paragraph 1 provides that German nationals and companies with German headquarters benefit from the protection of phonogram producers irrespective of the place of publication of their phonograms and irrespective of whether publication has at all occurred. 2.Section 126, paragraph 2 provides that protection is granted for phonograms first or simultaneously published in Germany irrespective of the nationality of the producer or, if the producer is a company, of the location of its headquarters. 3.Section 126, paragraph 3 provides that foreign citizens and companies having their headquarters outside Germany benefit from the protection afforded to phonogram producers to the extent provided in international agreements to which Germany is a contracting party. TRIPS is such an agreement. The national treatment obligations under Article 3 TRIPS, including the exceptions provided for in the Rome Convention, are thus materially incorporated in the German Copyright Act. Consequently, the extent of the protection of foreign producers depends exclusively on the interpretation of Article 3 TRIPS because the protection of German producers under section 126, paragraph 1 is not subject to any further criteria of eligibility. As far as the Rome Convention is concerned, Germany has notified to WTO that it does not apply the criterion of fixation. As German copyright law does not acknowledge phonogram producers as authors, Article 9, paragraph 1 TRIPS cannot be invoked in favour of them. (c)Performing artists 1.Section 125, paragraph 1 grants protection to German performing artists irrespective of the place of the performance and irrespective of the place of publication or the fixation of their performance. 2.Performing artists are granted certain specific exclusive rights either unconditionally or under certain conditions, according to section 125, paragraphs 2 4 and 6. 3.Section 125, paragraph 5 provides in addition, that foreign performing artists are granted protection to the extent provided for in international agreements to which Germany is a contracting party. TRIPS is such an agreement. The national treatment obligation under Article 3 TRIPS is thus materially incorporated in the German Copyright Act. Consequently, the extent of the protection of foreign performing artists depends exclusively on the interpretation of Article 3 TRIPS because the protection of German performing artists under section 125, paragraph 1 (above) is not subject to any further criteria of eligibility. II.Second sentence - national treatment with respect to the distribution of levies for private copying The statutory remuneration right for private copying under section 54 of the Copyright Act is granted, on the basis of national treatment, only to authors from WTO Members. Performing artists and phonogram producers from WTO Members do not benefit, as such, from the German private copying levy scheme. Consequently, the following explanations deal only with the remuneration right of authors. It has long been recognized in German legal practice that Berne Union Authors enjoy the statutory remuneration right for private copying under section 54 of the Copyright Act. Consequently, the German government considers that, as from 1996, this legal practice will extend to authors from WTO Members. As to the operation of the remuneration right the following explanations may be useful. The remuneration right is subject to compulsory collective administration, see section 54 h, paragraph 1. This means that the levy is collected jointly by the collecting societies representing the various groups of rightholders. It means further that authors must be represented by a collecting society in order to be able to claim participation in the distribution of the money received which the collecting society operates according to the distribution scheme that it has autonomously established and whose guidelines form part of its statute (section 7 of the Copyright Administration Act). Section 6 of the Copyright Administration Act obliges collecting societies to represent rightholders of German or other EU nationality who so claim. According to the predominant legal opinion of the German copyright community, this legal obligation operates also in favour of those other foreign rightholders who benefit from national treatment in respect of rights that are subject to compulsory collective administration. On the distribution of the total income from the levy for private copying, various agreements have been in force among the participating collecting societies. Agreements have also been concluded with certain foreign rightholders' organizations on their share in the distribution. The legality of the distribution practice operated by the collecting societies is subject to supervision by the German Patent Office as the state supervisory authority.

As we may not have correctly understood what is precisely meant by the rule of the shorter term in respect of phonograms and performances, the following explanation endeavours to exhaustively cover the duration of protection under German law for phonogram producers and performing artists from WTO Members. As has been stated above (answer to question 1, I. b) and c)), section 125, paragraph 5 and section 122, paragraph 3 grant to foreign performing artists and phonogram producers protection to the extent provided in international agreements. In this manner, the provision of TRIPS Article 14, paragraph 5, first sentence, is materially implemented in German law. The 50 year term of protection defined therein is applicable to rightholders from WTO Members. By the joint operation of the afore-mentioned provisions, section 125, paragraph 7 and section 126, paragraph 2, second sentence, are overruled. Otherwise the latter provisions would indeed provide for shorter terms on the basis of a comparison of terms of protection.

The question refers to the exclusive reproduction right of phonogram producers under TRIPS Article 14, paragraph 2. This right is enshrined in section 85, paragraph 1 of the Copyright Act. The wording of this section does not specify whether the reproduction may be direct or indirect. Consequently, both ways of reproduction are covered by the exclusive right. In particular, reproduction on the basis of the broadcast of phonograms is covered by this right. This long standing German interpretive practice has been further secured by the necessity to interpret the German copyright law in line with Directive 92/100/EEC, whose Article 7, paragraph 1 obliges Member States to provide for phonogram producers the exclusive right to authorize or prohibit the direct or indirect reproduction of their phonograms. The provisions of the Copyright Act on the reproduction right do not specifically address digital transmission in the context of subscription or interactive services. Significant case law has not yet developed in this area. The extent to which acts of digital transmission or preparatory acts are covered by the reproduction right depends on a judgment on the technical circumstances of these acts. The Federal Government is currently engaged in the examination of the need for legislative clarifications of the notion of reproduction in the digital environment as well as for a new or widened exclusive right of phonogram producers covering acts of digital dissemination.

Assuming that the person operating the digital delivery engages in having the phonogram reproduced in a permanent manner at the receiving end of the digital transmission, that act of reproduction is considered to be covered by the reproduction right of the phonogram producer under section 85.1.

I.Principle of retroactive protection (a)Works The way that authors from WTO Members are protected has been explained in answer to question 1, part I, a). The obligation to provide full retroactive protection of their works (TRIPS Article 9, paragraph 1) in conjunction with Berne Convention Article 18, paragraph 1, is directly applicable in German law. It may be of interest here that Article 18, paragraph 1 of the Berne Convention has been operated in the sense of full retroactive protection in Germany for a long time in favour of new Berne Union members, including the United States of America. On the basis of the "life plus 70 years" rule in the German Copyright Act, Article 7, paragraph 8 of the Berne Convention and on the basis that the substantive obligations of the TRIPS Agreement became effective on 1 January 1996, retroactive protection extends to works of authors who did not die before 1926, unless the country of origin provides for a shorter term in which case that term is not exceeded. As a minimum, the life plus 50 years rule of Article 7, paragraph 1 of the Berne Convention applies. (However, the comparison of the terms of protection allowed under Article 7, paragraph 8 of the Berne Convention is excluded in relation to the United States of America by virtue of a bilateral Agreement of 1892.) (b)Phonograms and performances The extension of the protection of the Copyright Act to phonogram producers and performing artists from WTO Members has been explained in the answer to question 1, part I. b) and c). The obligation to provide full retroactive protection for theses rightholders (TRIPS Article 14, paragraph 6, second sentence, in conjunction with Berne Convention Article 18, paragraph 1) is directly applicable in German law as well. On the basis of TRIPS Article 14, paragraph 5, first sentence, and on the basis that the substantive obligations of TRIPS became effective on 1 January 1996, the retroactive protection extends to fixations that were made or performances that took place not earlier than in 1945. II.Transitional rules No specific transitional rules have been adopted as to the copyright provisions of TRIPS. However, the transitional rules recently adopted in the course of the implementation of various EEC directives apply mutatis mutandis, in the following way: (a)Where protection is established retroactively acts of exploitation that were commenced prior to 1 January 1996, may be continued within the initially intended scope. However, rightholders shall be entitled to equitable remuneration for this continued exploitation (see section 137f, subsection 3). (b)The exclusive rental right of authors of computer programmes shall not extend to those copies of programmes that were acquired by the rental operator for the purpose of rental before 1 January 1996 (see section 137d). (c)The exclusive rental right of authors, phonogram producers and performing artists shall not extend to those copies of phonograms which were acquired or made available to the rental operator for the purpose of rental before 1 January 1996 (see section 137e, sub-section 3).

A review of the enforcement provisions of TRIPS will be subject to a review procedure by the Council on TRIPS at a later stage, after the review of the substantive provisions on copyright, trademarks, patents, etc., see WTO documents IP/C/W/7/Rev.1 of 16 November 1995 and IP/C/5 of 30 November 1995. Therefore, the answer to question 5 will be given at that later council meeting.

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.

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.