At WIPO, Performers Make Case For More Help, Visual Artists Seek Resale Right

While the World Intellectual Property Organization committee on copyright was discussing the protection of broadcasting organisations this week, performers lobbied for fair remuneration in the digital age. Visual artists, for their part, campaigned member states for a new treaty to be considered to protect their resale rights.

On 29 June, the International Federation of Musicians (FIM) hosted a side event campaigning for the fair treatment of performers in the digital environment alongside the 30^th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), taking place from 29 June – 3 July.

The panel discussion was preceded by a music performance by Finnish quartet Sväng. In opening remarks, WIPO Director General Francis Gurry set the stage by making the observation that “performers, I think are perhaps, the most vulnerable element in the whole creative infrastructure and the most vulnerable in the digital transformation and digital transition.” Further, he said that the big question that needs to be addressed is the economic viability of musicians and performers in the current environment.

Benoît Machuel, general secretary of FIM, discussed the rights available to performers under the Rome Convention, the Beijing Treaty and the WIPO Performances and Phonograms Treaty (WPPT). However, he said theory becomes practice when a musician signs a contract with a record company.

In his view, the growing frustration of performers is either a consequence of unfair contractual practices or that the implementation of the international treaties is not as satisfactory as it could be.

Christopher Blenkinsop, a musician (“17 Hippies”) and composer, commented on the disconnect between the nuances of treaties and an artist’s understanding of them. Blenkinsop appealed that treaties must be translated into “normal language.”

Per Herry, a lawyer, singer, composer, and winner of 1984 Eurovision song contest, emphasized that “in Sweden now 90 percent of the income of the major labels are from streaming.” He pointed out that old contracts between major labels and content creators did not translate very well into the online streaming model. Regardless, Herry claimed that record companies insist that old contracts included on-demand rights.

This is a position that Herry did not agree with. In order to solve the current issues being faced by content creators, Xavier Blanc, general secretary, AEPO-ARTIS, the European Performers’ Organisations, put forth the “Rental Model” as the preferred route.

Blanc described the “Rental Model” as a system where, “when the right of the performer is transferred to the producer, remuneration is created, which is collectively managed by collecting management organisations and collected from the users” such as iTunes and YouTube. In Blanc’s perspective, this model does not interfere with pre-existing contracts and collective agreements; rather, it ensures that all performers receive remuneration.

Visual Artists Seek Treaty on Resale Royalty Right

A side event was also organised on 30 June by the International Confederation of Authors and Composers Societies (CISAC) to raise awareness about the issue of the lack of a resale royalty right for visual artists.

An academic study prepared by Sam Richetson, a law professor at Melbourne Law School, is proposing international binding rules to establish a compulsory resale royalty right for visual artists.

Visual artists include graphic, plastic and photographic creators.

Ricketson, presenting his study, said the instauration of resale royalty right would correct an inequality of treatment suffered by visual artists compared to other categories of artists. Visual artists’ revenue for the most part is limited to the sale of the original embodiment of their work, he said, and large profit might be made later on the resale of this work without the artist benefitting from this profit.

He noted that a resale right might also benefit indigenous artists with both national and international market.

Some 81 countries already have in their national law some provision on resale royalty right, he said, but with differences in legislation on a variety of subjects, such as the duration of the right. It seems it is time to think about some form of clearer international regulation of resale royalty rights, he said.

Ricketson suggested that a starting point could be the Berne Convention for the Protection of Literary and Artistic Works, under which an agreement on resale right might be construed, and in particular under Article 20 (Special Agreements Among Countries of the Union).

The study also contained 18 proposed articles for an international treaty on resale royalty right. It is suggested that at least 3 percent of the resale price be dedicated to artists, he said, and that the resale right cannot be waived.

José de Guimarães, a Portuguese visual art creator, and member of the Portuguese society of authors (Sociedade Portugesa de Autores), concurred and remarked that artists in China, India or the United States do not have access to a resale royalty right. He encouraged WIPO member states to create a universal right under the organisation’s auspices.

Hervé Di Rosa, a French visual artist and chair of CISAC’s International Council of Creators of Graphic, Plastic and Photographic Arts (CIAGP), said Africa is host to famous artists and when they go through auction houses in Paris, they cannot get the resale royalty right because most of their countries do not recognise such right.

A Swiss visual artist in the audience also called on Switzerland to align itself with the European Union legislation, recognising the resale royalty right.

Ani Mamikon is an intern at Intellectual Property Watch. She recently completed her Juris Doctor at the University of Ottawa, Faculty of Law. She holds a Master’s Degree in Political Science and International Security Studies. She has a strong interest various IP issues relating to privacy, human rights and information technology. Recently, she has also developed a keen interest in patent law.

Rishi Dhir is an intern at Intellectual Property Watch. He holds a Juris Doctor with honours from the University of Ottawa, Faculty of Law. He also holds dual Bachelor Honour Degrees in Mathematics and Business Administration from the University of Waterloo and Wilfrid Laurier University. Rishi has an interest in a variety of IP issues including copyright law, piracy and Internet governance.

Image Credits: Rishi Dhir