Almost twenty years after talks began, the Beijing Treaty on Audiovisual Performances came into force on April 28th 2020. Whilst the Treaty seeks to reconcile the rights of artists and producers, labour and industry, not everyone is convinced.
More than a dozen international treaties enshrine intellectual property rights across the world. They range from the 3-page Nairobi Treaty on the Protection of the Olympic Symbol to the 33-page Performances and Phonograms Treaty, which protects IP in sound recordings.
Prior to the Beijing Treaty, however, performing artists bemoaned the lack of world-wide protection over rights in audiovisual performances, such as films, music videos and the like.
To this end, in 2000 in Geneva, the World Intellectual Property Organisation convened first Diplomatic Conference on the Protection of Audiovisual Performances. It put a draft treaty to the member states, who agreed on 19 of the 20 provisions. They disagreed on Article 12 which dealt with transferring rights from artists to producers.
In 2011, after years of negotiation, the WIPO’s Standing Committee on Copyright and Related Rights agreed to new wording, which it deemed flexible enough for member states’ approval.
In late June 2012 in Beijing, 700 delegates from 156 WIPO member states attended the second Diplomatic Conference on the Protection of Audiovisual Performances. Also in attendance were 40 organisations who represented actors and musicians. Stars came out in support of the conference, including Meryl Streep, Antonio Banderas and Javier Bardem.
The Conference approved the Treaty, to come into force once it had been ratified by 30 member states. This happened when Indonesia ratified it on 28th January 2020. And so, a world-wide basic framework for the protection of IP rights in audio-visual performances came into force on 28th April 2020.
The Treaty grants performers two kinds of rights for their performances, economic and moral.
Of those economic there four that relate to fixed performances, such as motion pictures. They are rights of reproduction, distribution, rental and of making available to the public.
For unfixed or live performances, the Treaty grants three economic rights that balance the interests of performers and broadcasters. It grants performers the rights of broadcasting and communication to the public, except where the performance was first broadcast by another. It also grants the right to fix the performance, which would then attract the four above rights.
Moral rights relate to a performer’s right to be acknowledged as the performer and to object to modifications to the performance that would prejudice their reputation. To protect these rights and those above, the Treaty grants performers the right to authorise the public broadcasting and communication of their fixed performances.
Treaty rights of particular note include the rights of reproduction, making available and authorisation. They apply to the Internet and therefore extend protection of artists’ IP to the digital world. As usual, significant change brings worry for some.
Digital rights groups fear the monopoly the Treaty grants performances over their performances. They particularly fear censorship over parodies and pastiches that so often go on to become memes. There is also a worry that producers will demand as standard that artists transfer their rights to them, ultimately weakening artist’s IP rights.
Similar worries were voiced in 2018 about the European Copyright Directive. As in that case, nothing is certain just yet. It will take time (and lobbying) for member states to figure out how to implement or incorporate the Treaty into their own legal regimes. And the Beijing Treaty contains plenty of exceptions. For instance, member states may allow producers to buy-out performers’ moral rights with royalties or other equitable remuneration.
Added to this is the general provision for states to derogate from the Treaty, so long as it passes the “three-step test” in Article 9(2) Berne Convention, as modified by Article 13 of the World Trade Organisation’s Agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS),
“Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder”.
This is an opaque clause and has received little attention from the courts. The Beijing Treaty may bring some, however, as member states try to please industry and empower labour, by balancing performers’ rights with producers’ rights.