There is a Diplomatic Conference on the Protection of Audiovisual Performance going on. Convened by the World Intellectual Property Organization and hosted by the People’s Republic of China. It started June 20 and will be concluded on June 26, 2012. After 12 years the Audiovisual Performances Treaty got a new lease on life. Professor Justin Hughes, Senior Advisor to the U.S. Under Secretary of Commerce for Intellectual Property and a prolific IP law professor at Cardozo School of Law who build up good connections with Chinese IP officials, is credited as one of the forces behind this rejuvenation effort.
That especially Beijing is hosting the conference can also be seen as significant. It confirms that China believes in multilaterism and wants to be acknowledged as an important player in framing international treaties. It also shows that China is serious about developing its film industry, which could be an effective way to exert soft power.
So what is the DipCon all about?
Since the WIPO Performances and Phonograms Treaty in Geneva, December 20, 1996, does not cover the protection to performers in respect of their performances, fixed in audiovisual fixations, the countries that participate to the conference want to conclude a treaty that does take this into account.
What about other international treaties? In article 14bis Berne Convention for the Protection of Literary and Artistic Works an owner of cinematographic works is used, but this owner is not defined. In the Trade-related Aspects of Intellectual Property Rights (TRIPs) authors of cinematographic works are mentioned, but again not defined. (article 11 TRIPs: “In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works.”) What about the Rome Convention of October 26, 1961, on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations? One hand giveth, article 7 Rome Convention give the right to prevent a certain number of acts to performers (including audiovisual performers), the other taketh away: article 19 Rome Convention: “Notwithstanding anything in this Convention, once a performer has consented to the incorporation of his performance in a visual or audiovisual fixation, Article 7 shall have no further application.” So in case an audiovisual performance is sued unauthorisedly it is of use. The term of the protection is 20 years from the end of the year the fixation was made (article 14 Rome Convention).
Clifford Coonan of Variety, which is a magazine that covers the entertainment industry, put is like this:
“As it stands, payment for a thesp’s work, and intellectual property protection, are not included in international copyright law, unlike that of helmers, screenwriters and musicians. ” Read here.
In Variety speak, a “thesp” is an actor, named after Thespis of Icaria, the first credited actor;
“helmer” is a producer, their rights are covered by the Berne Convention, just like screenwriters. And the rights of musicians are covered by the WIPO Performances and Phonograms Treaty.
The basic proposal for the substantive provisions of the conference can be found here. Just as the most important IP multilateral agreements such as WIPO’s Paris Convention for the Protection of Industrial Property and the Berne Convention on the Protection of Literary and Artistic Works and WTO’s Trade-related Aspects of Intellectual Property Rights, this treaty will also be based on national treatment principle (article 4): giving foreigners the same level of protection as nationals. The treaty covers economic rights of performers in their unfixed performances (article 6), so that they can share income with producers that was generated internationally, and moral rights (article 5), which are important to guarantee that the actors are attributed for their performances and that the integrity of their performances is protected. For those countries that do not extend moral rights after the death of the performer at the moment, do not have to do this after they become a contracting party to the treaty.
The performers’ rights protected by the treaty are:
– right of reproduction (article 7);
– right of distribution (article 8);
– right of rental (article 9);
– right of making available fixed performances (article 10);
– right of broadcasting and making available to the public (article 11).
These rights will be protected 50 years after the end of the year in which the performance was fixed (article 14). The protection of these rights are further protected by obligations concerning technological measures (article 15) and rights management information (article 16).
Article 12 which deals with the transfer of rights was most controversial and was blocked for 12 years. Whether or not there should be the possibility to transfer rights is a good question. There is an asymmetrical power relationship between producers and actors, and if the rights can be transferred without any guarantees for the latter party, then what is the use of whole treaty. But the producer also needs to have a workable solution so that he does not have to negotiate with each single actor every time he wants to exploit the economic rights internationally. Still if the economic rights can be transferred, moral rights never can.
After the delegation of Mexico proposed this, the 22nd Standing Committe on Copyrights and Related Rights (between 15-24 June 2011) came to the following watered down version of the contents of the provision:
Article 12 Transfer of rights (basic proposal)
A Contracting Party may provide in its national law that once a performer has consented to fixation of his or her performance in an audiovisual fixation, the exclusive rights of authorization provided for in Articles 7 to 11 of this Treaty shall be owned or exercised by or transferred to the producer of such audiovisual fixation subject to any contract to the contrary between the performer and the producer of the audiovisual fixation as determined by the national law.
A Contracting Party may require with respect to audiovisual fixations produced under its national law that such consent or contract be in writing and signed by both parties to the contract or by their duly authorized representatives.
Independent of the transfer of exclusive rights described above, national laws or individual, collective or other agreements may provide the performer with the right to receive royalties or equitable remuneration for any use of the performance, as provided for under this Treaty including as regards Articles 10 and 11.
So far, article 12 provides the freedom but not an obligation to decouple the right of making available fixed performances and broadcasting and making available to the public from the transferable economic rights, and make these into a right to receive royalties or equitable remuneration. But maybe things will change the coming days.
Serious topics for sure. Then again the Secretariat of the conference announced that some performers, including Jacky Chan, will entertain the delegates tonight. And that the buses will be escorted by police through busy Beijing traffic: “There will be a snack in the bus. Food cannot be taken into Great Hall of the People.”
UPDATE June 27, 2012: Beijing formally signed the Beijing Treaty on Audiovisual Performances, see here.