The diplomatic conference to finalize a new treaty for audiovisual performers was successfully concluded on June 26, 2012 as negotiators from WIPO’s member states signed the Beijing Treaty on Audiovisual Performances– so-named in recognition of the city that hosted the final round of negotiations. The new treaty brings audiovisual performers into the fold of the international copyright framework in a comprehensive way, for the first time. See WIPO PRess Room.
The treaty will enter into force once it has been ratified by 30 eligible parties, including countries or certain intergovernmental organizations. Signature of the treaty constitutes a preliminary endorsement by demonstrating the state’s intent to examine the treaty domestically and consider ratification, though signing does not create a binding legal obligation to ratify.
The Beijing Treaty on Audiovisual Performances (BTAP) will strengthen the economic rights of film actors and other performers and could provide extra income from their work. It will potentially enable performers to share proceeds with producers for revenues generated internationally by audiovisual productions. It will also grant performers moral rights to prevent lack of attribution or distortion of their performances.
Importantly, the new treaty will strengthen the precarious position of performers in the audiovisual industry by providing a clearer international legal framework for their protection. For the first time it will provide performers with protection in the digital environment. The treaty will also contribute to safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video.
Beneficiaries of Protection are the performers who are nationals of other Contracting Parties (Art. 3).
Article 4 enshrines the principle of equal treatment. Accordingly, each Contracting Party shall accord to nationals of other Contracting Parties the treatment it accords to its own nationals with regard to the exclusive rights specifically granted in this Treaty.
Morals rights of performers are regulated in Article 5. It states that (1) Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live performances or performances fixed in audiovisual fixations, have the right:
(i) to claim to be identified as the performer of his performances, except where
omission is dictated by the manner of the use of the performance; and
(ii) to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations.
(2) The rights granted to a performer in accordance with paragraph (1) shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the Contracting Party where protection is claimed.
In Article 6 are established the economic Rights of Performers in their Unfixed Performances. Accordingly, performers shall enjoy the exclusive right of authorizing, as regards their performances:
(i) the broadcasting and communication to the public of their unfixed performances
except where the performance is already a broadcast performance; and
(ii) the fixation of their unfixed performances.
The right of Reproduction is laid down in Art. 7, which states that performers shall enjoy the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in audiovisual fixations, in any manner or form.
The right of distribution is established in Art. 8, which states that performers shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their performances fixed in audiovisual fixations through sale or other transfer of ownership.
Art. 9 determines the Right of Rental, stating that: (1) Performers shall enjoy the exclusive right of authorizing the commercial rental to the public of the original and copies of their performances fixed in audiovisual fixations as determined in the national law of Contracting Parties, even after distribution of them by, or pursuant to, authorization by the performer.
Regarding the Right of Making Available of Fixed Performances, it is stated in Art. 10 that performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in audiovisual fixations, 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.
Furthermore, the right of Broadcasting and Communication to the Public is established in Art. 11. Accordingly, Performers shall enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations.
Article 12 provides for the transfer of rights, while Art. 13 provides for limitations. The term of protection to be granted to performers under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed.
Other provisions include Article 15 (Obligations concerning Technological Measures) and Article 16 (Obligations concerning Rights Management Information), etc.
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