Beijing Treaty: A Silver Lining to Audiovisual Performers


Audiovisual PerformersThe 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:

  1. 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.”
  2. 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
  3. 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.
  4. 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.

Author: Pramit Rastogi, a student from ICFAI University (Dehradun), an intern at IIPRD. In case of any queries please contact/write back to us at



Leave a Reply

Your email address will not be published.

3 × three =


  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010