Elgar Commentaries series
The copyright and related rights protection conferred by this section is based on and adopts much of the protection provided by two pre-existing WIPO treaties. They are the Berne Convention (1971) that protects literary and artistic works, and the Rome Convention that protects phonograms and performers. Different jurisdictions treat rights in relation to phonograms and performances differently. Some incorporate those rights into copyright while others treat them as related or neighbouring rights. These differences in approach have implications for the drafting of the relevant TRIPS provisions with an apparent intention to ensure neutrality in approach so that respective jurisdictions may maintain their differing approaches while complying with the minimum standards of TRIPS. One of the difficulties with interpretation of the various sections is the extent to which they are or are not consistent with the Berne and Rome Conventions. Article 9, which incorporates the major provisions of the Berne Convention (1971), has been the subject of interpretation by the Panel in US – Section 110(5) of US Copyright Act. The Panel’s interpretation process was, in one sense, made easier by the specific reference to the Berne Convention (1971) with the consequent decision that the jurisprudence surrounding the interpretation of Berne is also part of the interpretation of the relevant provisions of TRIPS. However, there are still outstanding issues of interpretation where there is some conflict between the TRIPS provisions and Berne, or, at the least, some ambiguity as to the relationship between the two.
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