The WIPO Diplomatic Conference on Certain Copyright and Neighboring Questions (Geneva, December 2 to 20, 1996) adopted two treaties: the WIPO Copyright Treaty (“WCT”) and the WIPO Performances and Phonograms Treaty ( “WPPT” or “Treaty” where appropriate).  The WPPT is ratified through  Presidential Decree (“Decree”) No. 74 of 2004 on the ratification of Treaty on Performances and Phonograms, 10 September 2004.

WPPT contains 31 Articles divided into 5 chapters. Chapter 1 of the Treaty deals with general provisions. Its first Article regulates the relationship between WPPT and other conventions. Under Article 1, obligations of the ratifying states shall not in any way derogate from other existing obligations the states might have under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, known as the Rome Convention 1961 done in Rome, October 26, 1961 WPPT shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties.

Article 2 defines crucial terms on the treaty. It for example define actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore as “performers” (hereinafter “performer”) and the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work as “phonogram” (hereinafter, phonogram”).

Article 4 clarifies the National Treatment tenet, at which protection to the performers and producers of phonograms who are nationals of other Contracting Parties must be treated similarly as to the State’s own nationals.

The Treaty guarantees that the performer is accredited with their work. This guarantee exists independently from the right derived from economical benefits such as royalties. Even after the transfer of performer’s economical rights, the accreditation would still belong to the performer. This scheme is known as the performer’s “moral rights”. Other rights of performer in the treaty would include economic rights, such as the right to authorize broadcasting to the public. Economic right also acknowledge performer in authorizing transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram (“communication to the public”) which also includes making the sounds or representations of sounds fixed in a phonogram audible to the public (Article 6). Performers also enjoy the right to authorize reproduction, distribution or to rent  their work, in any manner through any form (Articles 7, 8 and 9).  

Phonogram producer’s right is also guaranteed in that they enjoy the right to authorize reproduction, distribution or to rent their phonograms (Articles 11-13). Under the Treaty Contracting Parties may require, in their national laws, certain remuneration for performers or producers or both for the use of their products (Article 15).

Article 10 and 14 of the Treaty attempts to overcome challenges caused by technological developments  toward legal protection in intellectual property. It clarifies that Performers/Producers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms/Phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them. This provision is deemed to protect the performer’s interests against, for example infringement through the internet

One of the most crucial part of the Treaty concerns the term of protection granted. For performers, it shall extend for a period of 50 years computed from the end of the year in which the performance was fixed in a phonogram. For producers of phonograms it last at least until the end of a period of 50 years computed from the end of the year in which the phonogram was published, or failing such publication within 50 years from fixation of the phonogram, 50 years from the end of the year in which the fixation was made.

The WPPT is important as it includes provisions necessary for the adaptation of international norms on the protection of performers and producers of phonograms to the situation created by the use of digital technology, particularly of global digital networks like the Internet.

The Decree also refers to Law No. 24 of 2000 on International Agreements which states that international treaties or agreements may be enacted into Indonesian law through either the enactment of a law or the issuance of a Presidential Decree on the relevant subject matter. (mma)