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The Audiovisual industry is a sunrise sector for the economy and making significant strides. It is a multi-billionaire industry having the compelling power to jump-start the underdeveloped economy. Nashville was once a struggling city of the USA, where just like Sub-Saharan Africa policymakers find the silver lining to revamp its economy through industrial development based on access to raw materials and government-funded public works project. These expectations were never realized, nevertheless, Nashville found success from its creative industries. The Nashville case study serves as an encouraging example of how creative industries can make much from the little. However, it is not possible without a reliable copyright system. Copyright is possibly one of the best-accepted strategies to invigorate the audiovisual industry. Hence, copyright’s role cannot be underestimated.
The Copyright Law renders protection to the artists, authors, producers, performers of musical work excluding the audiovisual performers. While actors are the heart of the audiovisual industry, they are bereaved from copyright protection. The question regarding the audiovisual performer’s rights was raised many times but was excluded every time, therefore, to redress this issue Beijing Treaty on Audiovisual Performance, 2012 was embraced by the Diplomatic Conference on 24th June 2012 and entered into on 28th April 2020.
The Beijing treaty is a denouement of a prolonged process of considering the two missed opportunities. The Rome Convention for the Protection of the Performers, Producers of the Phonograms and Broadcasting Organisations, 1961 ( also known as Rome Convention, 1961) discussed for the first time the protection of the rights of the performers in phonograms and audiovisual. The Rome Convention provides limited rights to the audiovisual performers and no moral rights. The exclusion of the audiovisual performers was mainly due to the influence of the US Film industry. Art. 19 of the Rome Convention 1961 stipulates that once the performers in the film have agreed to incorporate their performance in visual or audiovisual fixation, their rights do not apply.
In the 1990s the issue of audiovisual performers’ rights was again discussed in a treaty concerning the rights of the performer of the phonogram and audiovisual works. However, the diplomatic conference of 1996 could not reach an agreement for the rights concerning audiovisual performers and ends up streamlining the protection in the Rome Convention and revamped the IP rights of audio performers only.
After the adoption of the WIPO Performance and Phonogram Treaty, 1996, the WIPO return to audiovisual performers. In 2000 another Diplomatic Conference was held which specifically deals with audiovisual performance. The conference reached the provisional agreement on 19 substantive issues except for the transfer of rights from performers to producers. This deadlocked issue resulted in the failure of the 2000 diplomatic conference. In 2010, the WIPO Standing Committee on Copyright and Related Rights resumed negotiations on the Audiovisual Performance Treaty. The U.S. put forward a proposal on the transfer of rights and reached the compromise in 2011. This enabled the WIPO to adopt the Beijing Treaty on Audiovisual Performance on 24th June 2012.
Key Provision of Beijing Treaty
The Beijing treaty endows global standards recognizing the rights of audiovisual performers to be fairly compensated for their creative work. It grants the performers economic as well as moral rights and giving them the ability to protect their work. This treaty sets the new global standards for the intellectual property rights of audiovisual performers at the international level. The main provision of the Beijing treaty are as follows[i]:
i. National treatment (Art. 4)
The purpose of this treaty is to harmonize the intellectual property rights of audiovisual performers internationally. Granting rights is not enough to achieve this goal. It obliges contracting parties to grant the nationals of other contracting parties the same protection as the performing artists of their own countries.
ii. Moral right (Art. 5)
The treaty provides the performer the moral right to be recognized as the performer of his own performance unless the nature of performance requires the omission of their performance and to oppose to any distortion or mutilation or other modification of his performance which is detrimental to his reputation, considering the nature of audiovisual fixation.
iii. Exclusive Right in unfixed work (Art. 6)
Art. 6 of the treaty provides the performer an exclusive right to authorize the fixation of their unfixed performance i.e. to authorize the filming of his performance. The article also grants performers the right to authorize the broadcast and communicating of their unfixed performance to the public for eg: live broadcasting of the event.
iv. Economic Rights (Art. 7-10)
The Beijing Treaty provides the four kinds of economic rights to the performers. These are:
- Right of Reproduction (Art. 7)
The reproduction right is the right to permit the direct or indirect reproduction in any way of the performance fixed in the audiovisual recording. The footnote attached to this article provides that “the reproduction rights apply fully in digital form and the storage of the protected performance in digital form in an electronic form constitutes the reproduction.”
- Right of Distribution (Art. 8)
The performers have an exclusive right to provide the public with the original or copy of the performance recorded in an audiovisual fixation through the sale or transfer of the ownership. The treaty does not interfere with the condition of exhaustion that a contracting party may apply after the sale or transfer of copies with the consent of the performer. The footnote attached to this article states that “original or copies” in this article only refers to the fixed copies that can be distributed in tangible form. For eg CDs
- Right of Rental (Art. 9)
Even after the distribution, the performer has the right to authorize the performance recorded in audiovisual material for the commercial rentals. However, this right cannot be granted to the performer unless the commercial rental result in excessive copying, thus impairing reproduction rights.
- Right of making available of fixed performance (Art. 10)
Making available is the process of distributing the performance to the public in the form of audiovisual fixation by wire or wireless means in such a way that can be accessed from any place and at any time individually chosen by them. This right particularly covers performance uploading through the internet.
v. Transfer of Rights (Art. 12)
Art. 12 contains the right of transfer which has been debated for more than a decade. The transfer of the right is one of the controversial provision which leads to the failure of the Diplomatic Conference for audiovisual performers’ right in 2000. Art. 12 stipulates that all the exclusive economic rights of the performers shall be automatically transferred to the producers after the performer has consented to record his/her performance in an audiovisual fixation. However, the contract between the two parties can prevent this transfer. Sub-clause 2 of Article 12 stipulates that the contract or agreement must be concluded in writing and signed by both the parties to the contract or their authorized representatives.
Article 12 seeks to strike a balance between the interests of the producers and the performers. The producers are interested in a mechanism that automatically transfers the economic rights of the performers and prevents them from interfering with the film distribution business. While performers wanted that treaty did not mandate the contracting party to adopt such mechanism and that the performs have means of preventing such contract.
Art 12(3) is particularly important for the countries whose domestic laws contain provisions for the transfer of exclusive economic rights. It pointed out that although the national laws have broadcasting regulations, this article stipulates that the performers have the right to receive royalties or equitable remuneration for any use of the performance as provided in the treaty.
Article 12 applies only to the economic right, not to the moral rights or the right of equitable remuneration.
vi. Limitations and Exceptions (Art. 13)
13 in its sub-clause 1 allows the contracting parties to provides the same kind of limitation and exception in regards to the protection of performers as they provide in their own national legislation in connection to the copyright protection in artistic and literary work. Sub-clause 2 of Art. 13 stipulates that the exception stipulated in this treaty shall be subject to the three-step test. The three-step test limits them to “certain special cases, which do not conflict with a normal exploitation of the performance and do not unreasonably prejudice the legitimate interests of the performer”.
The Beijing treaty on the Audiovisual Performance has set the landmark new global IP standards for the audiovisual performers. This treaty has officially ended the discrimination between the rights of the performers of the phonogram and audiovisual dating from the early 60s. The former WIPO Director General Mr. Francis Gurry on the conclusion of the Beijing treaty said that “The conclusion of the Beijing Treaty is an important milestone toward closing the gap in the international rights system for audiovisual performers and reflects the collaborative nature of the multilateral process.”[ii] The new treaty aims to provide a clearer international legal framework to protect audiovisual performers, strengthen their economic rights, and provide protection in the digital environment for the first time, thereby exacerbating the insecurity of audiovisual performers. Till now 42 countries have become the contracting party to this treaty and it is expected to be more in the future.