(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.

The Danish levy system is - in relation to foreign rightowners - implemented in special provisions in Sections 18 and 19 in Ordinance No. 964 of 12 December 1995. It is hereby indicated that the provisions have no link to the existing international copyright conventions. In practice the criteria used in Sections 18 and 19 for payment to non-EU rightowners have the effect that foreign rightowners are treated in the same manner as Danish rightowners on the sole condition that in the country in question a remuneration scheme for blank tapes - regardless of its scope -has been implemented, which provides a possibility for payment of remuneration to Danish rightowners. The general framework of the Danish levy system is laid down in Sections 39 and 40 of the Copyright Act of June 1995 which are worded as follows: "Section 39: (1) Anyone who for commercial purposes produces or imports sound tapes or videotapes or other devices on to which sound or images can be recorded shall pay remuneration to the authors of the works mentioned in subsection (2). (2) The remuneration shall be paid for tapes, etc., which are suitable for production of copies for private use, and only for works which have been broadcast on radio or television, or which have been published on phonogram, film, videogram, etc. (3) Administration and control, including collection, shall be carried out by a joint organization representing a substantial number of Danish authors, performers and other rightholders, including record producers, etc., and photographers, and which is approved by the Minister for Culture. The Minister may request to receive all information about collection, administration and distribution of the remuneration. (4) The organization lays down guidelines for payment of the remuneration to the beneficiaries so that to the greatest possible extent distribution will take place in accordance with the copying actually made. One third of the annual amount for payment shall, however, be used to support purposes common to the authors and others within the groups represented by the organization, cf. subsection (3). Section 40: For 1993, the remuneration per minute playing time for sound tape is DKK 0.045 and for videotape DKK 0.0625. The remuneration shall be adjusted annually by the rate adjustment percentage, cf. Act on a rate adjustment percentage."

Denmark does not apply any comparison of terms with respect to the protection afforded by the TRIPS Agreement to performances and phonograms.

According to Section 66 (1) of the Danish Copyright Act sound recordings may not be reproduced without the consent of the producer until 50 years have elapsed after the end of the year in which the recording was made. This is understood to include indirect reproduction e.g. made on the basis of a broadcast or interactive transmission. According to Section 86 (2) the protection concerning recording and copying applies to all sound recordings regardless of origin.

As stated in the Danish answer to question 3 from the United States, Article 66(1) in the Danish Copyright Act of 14 June 1995 covers both direct and indirect reproduction of phonograms including reproductions made on the basis of a broadcast or interactive transmission. This is confirmed in the preparatory work (lovforslag n L 119 fremsat den 18 Januar 1995) where it is stated, inter alia, that the law is implementing Article 7 in the EEC Directive 92/100 concerning rental and lending rights where it is expressly stated that producers of phonograms shall enjoy an exclusive right to authorize the direct and indirect reproduction of their phonograms.

According to Section 90 (1) the Danish Copyright Act applies also to works and performances and phonograms etc., made before the coming into force of the present Act. The term of protection for works is 70 years after the year of the author's death cf. Section 63 of the Copyright Act. The protection of the works by authors who died in 1926 will consequently expire by the end of the year 1996. Comparison of terms is used according to Section 2 of the Ordinance. The term of protection for performances and recordings is 50 years after the year the recording was made cf. Sections 65 and 66. The protection of recordings made in 1946 will consequently expire by the end of the year 1996.

Denmark is of the opinion that answers to this question should be postponed to be given in connection with the review concerning enforcement which is scheduled to take place in 1997.

A database can be protected as a work according to Section 1 of the Copyright Act or if it consists of protected works it can be protected as a composite work according to Section 5 of the Act. In both cases the database is protected on the condition, that the compilation is the authors own creative effort and expresses his individuality. Quite a different matter is the protection provided for in Section 71 for catalogues, tables or other similar productions in which a large number of information items have been compiled. Those may not be reproduced without the authorization of the producer until 10 years have elapsed from the year in which the production was made public. However, the protection expires 15 years after the end of the year in which the work was produced. This is a "related right", i.e. a production outside copyright which operates for the benefit of the producer and has its main function in case such a compilation (also in the form of a database) does not meet the criteria for copyright protection. However, the provision also states that if a production of its kind, or a part thereof, is subject to copyright, copyright protection may also be claimed.

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.

With respect to copyright works, phonograms and performers' performances, the Canadian Copyright Act provides national treatment to the rightholders of all WTO Members. Section 2 is now equipped with a new definition of "treaty country" which includes "WTO Member" which is also specifically defined. Section 5.(1)(a)(ii) extends copyright protection to any work (including a sound recording), the author of which was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in a treaty country. Section 14 on performers' rights specifically rests on a WTO basis. With respect to performances occurring after a Party has joined the WTO, see Section 14.01(1), and with respect to performances before a Party has joined the WTO, see Section 14.01(4).

No.

Copyright Act, Section 5(3), specifically provides copyright protection for sound recordings. Section 5(4) provides the owner of the copyright in the sound recording with the exclusive right to reproduce the sound recording in any material form. In the WIPO Experts Committees working on the possible Protocol to the Berne Convention and the possible New Instrument for the Protection of the Rights of Performers and Producers of Phonograms, there has yet to be any thorough discussion of the extent to which the reproduction right would apply to specific ephemeral "reproductions" effected as a necessary incident of a digital transmission. Whether such temporary reproductions are covered by the reproduction right is a question on which international consensus is lacking. Similarly, the point was not contemplated during the negotiations for TRIPS, where there is nothing to show that the reproduction right in Article 14(2) applies to a temporary reproduction in random access memory. Nothing in the Canadian Copyright Act precludes such a temporary reproduction from falling under the exclusive reproduction right. However, this point has yet to be clarified with respect to the reproduction right in the Canadian Copyright Act. With reference to the information highway and the new demands of the digital environment, this question has recently been the subject of some domestic discussion in terms of copyright works in general.

Yes.