WIPO Lauded For New Beijing Treaty On Audiovisual Performances

The UN World Intellectual Property Organization is centre stage when it comes to international IP policymaking, and has hosted great progress during the past 20 years by all accounts. But apart from updates and modifications to existing treaties, and its 2007 Development Agenda, its members have not managed to complete a major new treaty since 1996. Until now.

The Beijing Treaty on Audiovisual Performances was adopted by the WIPO Diplomatic Conference on 24 June, and is available here. The diplomatic conference in Beijing met from 19-26 June.

“It’s done,” said one official afterward. “The first multilateral treaty on substantive IP since 1996.”

“It was a concerted effort by all member states,” a developing country official said.

The treaty will increase protection over audiovisual performances by clarifying rights of performers in the use of their works, putting them on par with other copyrighted works.

“For the first time it will provide performers with protection in the digital environment,” WIPO said. “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.”

WIPO said the treaty’s impact is that it: “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 also will grant performers moral rights to prevent lack of attribution or distortion of their performances.” Finally, it provides an international legal framework for the industry.

Road to Ratification

Of WIPO’s 184 members, 48 signed the treaty, which shows a commitment to proceed to ratification at the national level. And 122 members (including the 48) signed the “Final Act” of the treaty, essentially stating their participation in the negotiations and recognition of the outcome, i.e., adoption of the treaty.

The treaty will enter into force three months after it has been ratified by 30 “eligible parties,” which includes countries or some intergovernmental organisations.

Overall, 156 members attended the conference, along with six intergovernmental organisations and 45 non-governmental organisations, the highest turnout ever for a WIPO diplomatic conference, WIPO said in a press release.

“The new treaty establishes rules ensuring the adequate protection and remuneration of actors and allowing their performances to be made available, whether they are distributed on physical media (such as DVDs) or on the internet,” the European Commission said in a statement.

A key element of the outcome was an agreement on the demand of numerous developing countries to include reference to the importance of the WIPO Development Agenda. Paragraph 2 of the Preamble states:

“Recalling the importance of the Development Agenda recommendations, adopted in 2007 by the General Assembly of the Convention Establishing the World Intellectual Property Organization (WIPO), which aim to ensure that development considerations form an integral part of the Organization’s work”

Going into the conference there was only a footnote stating that a clause would be adopted. Several large developing countries were among those to sign the treaty.

Under the treaty, the agreed term of protection for performers (Art. 14) will be “at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed.”

Many of the provisions have Agreed Statements appearing as footnotes explaining their parameters and application. The Agreed Statements provide interpretations of provisions of the treaty and will appear as a separate accompanying document, according to a participant.

Art. 13 provides limitations and exceptions to copyright, essentially leaving it to national law. And Art. 15 on technological protection measures contains a complicated footnote clarifying that limitations and exceptions must be respected.

Strong Praise from Some

Actors from the around the world had issued statements urging negotiators to finish the treaty.

In general, however, it appears to be mostly developed countries that have crowed about the completion of the treaty. Activists and developing countries, often outspoken in WIPO, appeared to be relatively quiet about the outcome.

One open-access advocate pointed without judgment to the provision on limitation and exceptions. A US law professor, Hannibal Travis of Florida International University, raised concerns on a listserv about the possibility of censorship of remix culture and fair use works. Prof. Travis’ full concerns are posted here.

But EU Internal Market and Services Commissioner Michel Barnier called agreement on the treaty “very important,” and said, “Actors are ambassadors for cultural expression and exchange. They have to be able to earn their living from their artistic contribution, because without the means to express themselves, no cultural expression would be possible.” The 27-member European Union can itself become a party to this treaty.

And a range of US government agencies issued statements hailing the outcome, including the USPTO/Commerce Department, the US Copyright Office, and the State Department. The US delegation on stage for the treaty signing by delegation head Justin Hughes was one of the biggest of WIPO members at about a dozen.

The USPTO said in a fact sheet that the treaty would help American actors by “increasing global protection for performers by ensuring updated and consistent standards of protection for performers in audiovisual works.” It also will give US stakeholders “another mechanism to promote protection of the intellectual property in their films,” it said.

USPTO said the implementation of the AV Treaty “may require some technical amendments of the Copyright Act, in particular where Title 17 refers to existing international copyright obligations (“points of attachment” for parties to this treaty under U.S. law).

The USPTO, part of the US Commerce Department, said the “USPTO-led delegation” negotiated an “historic” treaty, also referring to it as a “landmark multilateral treaty.” In a statement, acting Commerce Secretary Rebecca Blank tied it to the Obama administration’s broader economic commitment, especially to the middle class. “Today’s treaty is an historic and critical step forward for the entertainment world,” she said.

USPTO Director David Kappos blogged about the treaty negotiation here.

Blank said the government worked “through close consultations with the Screen Actors Guild-American Federation of Television and Radio Artists, and the Motion Picture Association of America (MPAA).” Fritz Attaway, executive vice president and general counsel at MPAA, was listed as a member of the US delegation. Shira Perlmutter, who recently left music industry association IFPI to become the USPTO administrator for policy and external affairs, was a deputy head of delegation.

US Register of Copyright Maria Pallente said: “The Beijing Treaty is an important step forward in protecting the performances of television and film actors throughout the world.”

Included among the Beijing Treaty’s provisions, the Copyright Office said, are “articles requiring national treatment for audiovisual performers in other countries, various exclusive rights for audiovisual performers, and safeguards for technological protection measures.”

The US State Department said: “The successful outcome demonstrates how the multilateral system can be harnessed to benefit American workers and businesses. The U.S. audiovisual performances industry employs more than 150,000 professional actors and is a source of strength for American exports.”

The International Intellectual Property Alliance, an umbrella group of the major US rights holder trade associations, said it welcomed the treaty conclusion “as a reaffirmation of the importance of establishing adequate international legal protections and effective remedies for creators and innovators in the online environment. “ IIPA commended WIPO and the member states “for their continued work on establishing international norms critical to creative activity, which in turn spurs economic and job growth, as well as cultural and social development worldwide.”

“The MPAA welcomes the signing of the Beijing Treaty on Audiovisual Performances and believes this is an important step in the global fight to protect artists, creators, and innovators around the world,” MPAA President and CEO Chris Dodd said in a statement in which he called it “the first substantive IP treaty of the 21st century.”

“We commend all parties for making the necessary compromises and reaffirming the current international copyright framework so crucial to worldwide economic and social development,” Dodd said.

Background

Negotiations for the treaty began around the time the 1996 so-called WIPO Internet treaties were agreed. These treaties, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), updated copyright protection for the digital age, including rights of distribution and making available on the internet, and the safeguarding of technological protection measures, as the US Patent and Trademark Office put it. They covered singers, musicians and other performers, but not actors.

In the US, the WIPO internet treaties were adopted with the 1998 Digital Millennium Copyright Act (DMCA).

A first gathering of the AV treaty diplomatic conference was held in the year 2000, but stalled there over one provision, Article 12, on the transfer of rights. As USPTO put it, the US supported by India insisted on a transfer of rights provision “that major film producers felt was needed to ensure their ability to distribute films globally.” The European Union opposed such a provision.

The AV treaty became a perennial item on the agenda of the WIPO Standing Committee on Copyright and Related Rights (SCCR) for about a decade before a breakthrough occurred in committee (IPW, WIPO, 24 June 2011).

The contents of the treaty are as follows:

Preamble
Article 1: Relation to Other Conventions and Treaties
Article 2: Definitions
Article 3: Beneficiaries of Protection
Article 4: National Treatment
Article 5: Moral Rights
Article 6: Economic Rights of Performers in their Unfixed Performances
Article 7: Right of Reproduction
Article 8: Right of Distribution
Article 9: Right of Rental
Article 10: Right of Making Available of Fixed Performances
Article 11: Right of Broadcasting and Communication to the Public
Article 12: Transfer of Rights
Article 13: Limitations and Exceptions
Article 14: Term of Protection
Article 15: Obligations concerning Technological Measures
Article 16: Obligations concerning Rights Management Information
Article 17: Formalities
Article 18: Reservations and Notifications
Article 19: Application in Time
Article 20: Provisions on Enforcement of Rights
Article 21: Assembly
Article 22: International Bureau
Article 23: Eligibility for Becoming Party to the Treaty
Article 24: Rights and Obligations under the Treaty
Article 25: Signature of the Treaty
Article 26: Entry into Force of the Treaty
Article 27: Effective Date of Becoming Party to the Treaty
Article 28: Denunciation of the Treaty
Article 29: Languages of the Treaty
Article 30: Depositary