In Boost To Multilateral System And WIPO, Audiovisual Treaty Set For 2012 Completion

World Intellectual Property Organization members yesterday agreed to attempt completion in 2012 of long-stalled negotiations on a copyright treaty giving clearer protection to the rights of actors and others performing in audiovisual productions. Spurred by a compromise on transfer of rights, the breakthrough is being seen as good for the multilateral system and, if successfully concluded, for actors and other performers in developing countries.

“What’s most important about this treaty is that it provides rules in countries where there are none,” an observer said afterward.

Also on the 2012 WIPO copyright committee agenda is a negotiation on a treaty for reading-disabled users, and on limitations and exceptions to copyright more generally, including for libraries and archives. Ecuador and other countries favour a move to a diplomatic conference on the reading-disabled treaty in 2012 as well.

Trevor Clarke, the WIPO assistant director general who oversees the copyright committee, said, “Issues are not moving in the multilateral environment, so it’s a great success for WIPO that a treaty proposal that was stopped in 2000 could be unravelled in 2011.” Negotiations on the AV treaty stalled in 2000.

The treaty, which is nearly agreed, is of “tremendous benefit to performers and would be done to the credit of the organisation as a demonstration of its continued relevance in the challenging world of IP,” Clarke told Intellectual Property Watch.

The decision was taken in the context of the annual WIPO General Assemblies, running from 26 September to 5 October.

The draft treaty contains 19 articles, and introductory language. Everything had been agreed back in 2000 except Article 12 on transfer or consolidation of rights, according to sources. In addition to the newly agreed Article 12, the decision to move forward was reached by agreeing to add “statements” of interpretation of three articles in the treaty. The statements still need to be negotiated but will be circulated in draft form in the months before the diplomatic conference. The United States told the meeting that the agreement was a “carefully balanced package.”

The high-level negotiation, or diplomatic conference, is expected to be held in June or July. It will be considered a resumption of the year 2000 conference. A preparatory committee will meet on 30 November and 1 December (going to 2 December if necessary), in the context of the next meeting of the WIPO Standing Committee on Copyright and Related Rights (SCCR), from 21 November to 2 December.

Three countries have offered to host the diplomatic conference: China, Mexico and Morocco. Discussions are underway to decide which will be the host. If none offered, it would be held in Geneva.

The treaty is unlikely to have a significant impact on developed-country markets like the United States and Europe, as they already have similar rules in place, according to a source.

Treaty Treats

Key to the breakthrough on Article 12 was language that said the treaty will not replace national law. The deal was struck mainly among the United States, India and Mexico, according to sources, all three of which have strong domestic film and television industries.

The transfer of rights concept is “quite new” for a WIPO treaty, a WIPO official said. “This will be unique.” The full text of the new Article 12 is as follows:

Article 12
Transfer of rights

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.

The new treaty will clarify rights for performers, but it will be up to them to organise themselves to use them, one official said. Now, AV performers can have control over the “making available” right, and whether technological protection measures are used to block access to the performance.

As to the 3 statements of interpretation to be added, they will relate to Article 1 on the relation to other conventions and treaties, Article 2 on definitions, and Article 15 on obligations concerning technological measures. There also will be added some language in the preamble about the WIPO Development Agenda.

Japan said that it will need to check the new provision on transfer of rights with its national law. A Japanese official said that under Japanese law, after the performer has given authorisation to the owner, the owner has the rights. Venezuela also had a reservation on the draft treaty.

An actors’ group representative told the assembly that the treaty will “resolve discrimination” which has existed since the 1960s. That is a reference to the 1961 Rome Treaty that gave some limited rights to performers. The 1996 WIPO Performances and Phonograms Treaty (WPPT) – one of the WIPO “internet” treaties along with the Copyright Treaty – gave more rights to others, but performers on television and film were still left out.

The AV treaty began as a protocol to the WPPT, but grew into its own text. Consolidation of rights means centralising rights held by the various participants in making an audiovisual work, such as actors, screenwriters, directors, and cinematographers.

“This isn’t about Julia Roberts,” said one negotiator. “This is about the thousands of people who appear in audiovisual works in Nigeria,” or the 100,000 people in the Screen Actors Guild in the United States.

“In terms of job creation, the film and tv industry is a growing employer around the world,” US negotiator Justin Hughes told Intellectual Property Watch. “I can’t say this treaty itself is a job producer. I can say it’s an instrument that protects the little guy.”

Film and music industry lobbyists materialised from London and other locations, and chatted with US officials before work began.

At the last meeting of the SCCR, in June (IPW, WIPO, 21 June 2011), it was agreed to recommend to the assemblies to approve a diplomatic conference.

The WIPO secretariat organised meetings in 2010 and 2011 to advance the issue, including regional seminars in India and Nigeria, and consultations in Geneva.

Separately, several extra events have been added to the SCCR calendar in the lead-up to or during the next SCCR. There will be informal consultations on the protection of broadcasting organisations on 26-27 November in Geneva, a “sub-regional” seminar on the role of the copyright system in promoting the publishing industry on 17-18 October in Kiev, Ukraine; and a meeting entitled, “Enabling Creativity in the Digital Environment: Copyright Documentation and Infrastructure” on 13-14 October in Geneva.