While copyright offers protection for authors’ works, neighbouring rights are rights which offer protection for only a few categories such as the rights of performers, producers of sound recordings, and broadcasting organizations because they play a critical role in communicating or disseminating their works to public. Bainbridge states that related rights ‘can be described as derivative or entrepreneurial works and there is no requirement for originality; for example repeat broadcasts each attract their own copyright’.280
277 CNRL,R.D. 65/2008, art 30. Under this article the right starts ‘from the first day of
the Gregorian calendar year following the year during which these works were legally published for the first time’.
278 CNRL, R.D. 65/2008, art 30. 279 See Section 4.4 below.
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The TRIPS Agreement 281 and the Rome Convention regulate the
neighbouring rights or related rights such as the rights of performers, producers of phonograms, and broadcasting organizations.282 With
regard to the rights of performers, such as the fixation of live performances and reproduction of fixations of performances, Article 14(1) of TRIPS stipulates that:
In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation.283
In the case of live performance, the TRIPS provision is narrower than the coverage of the Rome Convention provision under Article 7.1. This is because Article 14 of TRIPS is broader in scope than just the fixation of a live performance on a phonogram. However, the relevant provision in the Rome Convention states that the protection provided for performers shall contain the possibility of preventing fixation on any medium. Under TRIPS, there is a lack of definition of a ‘phonogram’,284 and this lack of
definition seems to indicate that there is a possibility of applying the definition set out in the Rome Convention, which provides ‘phonogram to
281 The TRIPS Agreement states that the provisions of the Berne Convention shall be
included within its framework. However, it did not provide for the provisions of the Rome Convention with regard to related rights, for example in terms of the performers or producers of sound recordings or broadcasting organizations. It is important to note that the provisions of TRIPS are easier than the Berne Convention in this context. In addition, it added important amendments to the Berne provisions, for example the extent of term protection.
282 Claude Masouye, Guide to the Rome Convention and to the Phonograms Convention
(World Intellectual Property Organization 1981).
283 Art 14(1).
284 WIPO, Implications of the TRIPS Agreement on Treaties Administered by WIPO
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mean any exclusively aural fixation of sounds of a performance or of other sounds’.285
The impact of the requirements regarding the reproduction of the fixation of performances is similar in both TRIPS and the Rome Convention,286
although there are variations. There is an obligation for allowing performers to prevent the reproduction of such fixations when an infringer makes the reproduction without their consent. However, the provision under Article 7.1(c) of the Rome Convention is broader.287
With regard to the rights of producers of phonograms, the TRIPS Agreement states that ‘Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms’.288 There is no difference between the commitments of
TRIPS and the Rome Convention. In addition, TRIPS provides for the rights of broadcasting organizations. It states:
Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).289
285 Article 3(b).
286 Article 7.l(c).
287 WIPO, Implications of the TRIPS Agreement on Treaties Administered by WIPO
(WIPO publication no. 464, World Intellectual Property Organization 1997) 24.
288 Art 14 (2). 289 TRIPS, art 14(3).
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According to the Rome Convention, broadcasting organizations’ rights ‘to authorise or prohibit’ additionally cover fixation, the reproduction of fixation (without the author’s permission) and the rebroadcasting by means of wireless transmissions. However, ‘in the case of communication to the public, it only covers television broadcasts’,290 and only in specific
circumstances. In the latter case, the state in which protection is requested can determine the conditions under which the rights can be exercised.291
While the comparisons between TRIPS and the Rome Convention could indicate that TRIPS offers more rights for broadcasting organizations, the second sentence of the previous article of TRIPS states that ‘Where Members do not grant such rights to broadcasting organizations’, which suggests that essentially no commitment but only an option is stipulated granting such rights to broadcasting organizations.292
In Oman, the CNRL divides the rights of copyright (which is the author’s right)293 and neighbouring rights into two chapters.294 Article 1 of CNRL
defines neighbouring rights (or related rights) as ‘The rights of the performers, producers of sound recordings and broadcasting organizations’.295 These neighbouring rights will be explained below.
290 WIPO, Implications of the TRIPS Agreement on Treaties Administered by WIPO
(WIPO publication no. 464, World Intellectual Property Organization 1997) 25.
291 Article 16.1(b).
292 WIPO, Implications of the TRIPS Agreement on Treaties Administered by WIPO
(WIPO publication no. 464, World Intellectual Property Organization 1997) 26.
293 R.D. CNRL 65/2008, art 2.
294 Bently and Sherman stated that ‘The logic of distinguishing between these two types
of subject matters lies in the fact that neighbouring (or entrepreneurial) typically derivative, in the sense that they use or develop existing authorial works, that they are a product of technical and organizational skill rather than authorial skill, and that the rights are initially given not to the human creator, but the body or person that was financially and organizationally responsible for the production of the material’. See Lionel Bently and Brad Sherman, Intellectual Property Law (OUP 2014) 33
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With regard to the rights of the performers, ‘performers’ is defined under Article 1 as those ‘who perform the work in any way for example, acting, singing, orating, reciting, playing, or dancing'.296 Performers have moral
rights which have been implemented in Oman owing to its membership of WIPO Performances and Phonogram. These moral rights include the right of attribution and the integrity right.297 In addition, performers have
exclusive economic rights, which are specified under Article 16:
1. Broadcasting and communication to the public of their unfixed (live) performances.
2. Fixation of their unfixed performances
3. Preventing the use of their unfixed (live) performance in any way unless a prior written authorization is obtained.
4. Making available to the public of the original or copies of their performances through sale or other transfer of ownership.
5. Renting their broadcasted performances to the public, for commercial purposes.
296 R.D. 65/2008, art 1.
297 Article 14 states that ‘Performers shall enjoy non-transferable and non-prescriptive
eternal moral rights, including:
a- Right to claim authorship of their performances, whether live or recorded, as done by them, except where omission is dictated by the manner or use of the performance; b- Right to object to any distortion, mutilation or other modification of their performance, which would be prejudicial to their honor or reputation.
Any disposal of such copyrights either compensated or not, shall be void.
The performers’ public successor shall succeed the rights stipulated in this article, and the Ministry shall succeed to these rights, in the absence of a general successor for the performers.’
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6. Broadcasting or any communication to the public of their performances fixed in a sound recording.
7. Reproduction of their fixed performances.298
In terms of the rights of producers of sound recordings, the CNRL states that the natural or legal person can be a producer of sound recordings who takes accountability for the first fixation of the sound recording. This person can enjoy the exclusive economic rights stipulated in Article 14:
(1) The use of their recordings in any way, including reproduction and rental. (2) Making available to the public of the original and copies of their sound recordings through sale or other transfer of ownership. (3) Broadcasting or any communication to the public of their sound recordings.
Finally, Omani legislation provides protection for broadcasting organizations, which have the right to transmit via ‘wireless means, audio or audio-visual broadcasting, or any representation thereof’.299 This
organization has the exclusive economic rights set out in Article 18, which stipulates:
(1) Fixing, reproducing, broadcasting and rebroadcasting their programs and communicating them to the public; (2) Prohibiting others from communicating the television recording of their programs to the public without a prior written authorization. It shall be considered prohibited for others to record, reproduce, rent, re-broadcast, distribute
or communicate such to the public by any means.300
298 R.D. 65/2008.
299 R.D. 65/2008, art 1. 300 R.D. 65/2008.
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With regard to the duration of neighbouring rights, the economic rights of the performers or producers of sound recordings and broadcasting organization is different than those of copyright. Table 3.1 below explains the duration of neighbouring rights in Oman.
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Table 3.2 The duration of neighbouring rights Type of economic
rights
Duration of
protection301
Exception to the duration of protection
The economic rights of the performers
Ninety-five years302 ‘If such work was not published during
twenty-five years starting from the date of completion, the economic rights of this work shall be protected for one hundred twenty years starting from the first day of the Gregorian calendar year following its creation.’303
The economic rights of the producers of sound recordings
Ninety-five years304 ‘If such sound recording was not
published during twenty-five years starting from the date of completion, the economic rights of such work shall be protected for one hundred twenty years starting from the first day of the Gregorian calendar year following the creation of such sound recording.’305
The rights to broadcast
programmes of the broadcasting
organizations
Twenty years306 No exception permitted
301 Which starts ‘from the first day of the Gregorian calendar year following the year in
which the recorded performance, sound record or program was legally published or broadcasted for the first time’. R.D. 65/2008, arts 31, 32 and 33.
302 R.D. 65/2008, art 31. 303 R.D. 65/2008, art 31. 304 R.D. 65/2008, art 32. 305 R.D. 65/2008, art 32. 306 R.D. 65/2008, art 33.
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Table 3.1 shows the duration of neighbouring rights. If these economic rights result in an illegal monopoly under Islamic law, the question should be to what extent these economic rights are restricted under the Omani legal framework. This issue will be subject of Chapter 4.307
Hence, while the term of protection is given to the owners of neighbouring rights, it varies in terms of duration in effect.