On June 26th, the Diplomatic Conference on the Protection of Audiovisual Performances was concluded in Beijing. 721 delegates from 154 WIPO member countries and 48 international organizations attended the conference. After seven days of discussions and negotiations, 122 countries signed the Final Document, and 48 countries formally signed the Beijing Treaty on Audiovisual Performances (Beijing Treaty). As the fruit of nearly 20 years of hard work, the new treaty for the first time brought all inclusive rights protection for audiovisual performers into the framework of international copyright protection.
The Beijing Treaty endows the performers’ rights of licensing and prohibiting others from using their images, actions, voices and other related rights in their performances. The conclusion of the Beijing Treaty is a landmark in improving the international copyright protection system for audiovisual performances, boosting the healthy development and prosperity of the world’s cultural industry and accelerating the development of folklore performances in developing countries, including China. As the first international IP treaty concluded in Beijing, the Beijing Treaty will also contribute to enhancing the development of China’s copyright system and promoting the protection of audiovisual performances in China. It will motivate performers of Chinese culture to “come out” with security that their creativity is both valuable and protected.
Francis Gurry, Director General of WIPO, praised the treaty as a significant development in the world copyright protection history and a success of the multilateral system. “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… The international copyright framework will no longer discriminate against one set of performers,” said Mr. Gurry in the closing ceremony. He also hoped that the member countries could continue to carry forward the “Beijing Spirits” in work of other important fields. Liu Qi, Member of the Political Bureau of the Central Committee of the Communist Party of China (CPC) and the Secretary of the CPC Beijing Municipal Committee, delivered a keynote speech in the closing ceremony, calling the Beijing Treaty a pride of Beijing.
The Beijing Treaty will take effect as soon as it is approved by country governments and inter-governmental organizations. Signing onto the treaty means only that the corresponding country intends to examine the content of the treaty and is considering approval; it does not mean the country is obligated to approve it. Only by formal approval or accession can a country be part of the treaty and bound by its provisions.
Background
Before the Beijing Treaty there were other treaties involving the protection of audiovisual performances, namely: the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention), the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), and the WIPO Performances and Phonograms Treaty (WTTP). However, none provided comprehensive protections to audiovisual performances. For example, the Rome Convention failed to give performers exclusive rights whereas the WPPT only gave performers of phonograms exclusive rights while neglecting the rights of audiovisual performers. The Beijing Treaty for the first time, as a supplement to the aforesaid conventions and treaties, offers comprehensive protection for performers.
Influences
The Beijing Treaty will strengthen the economic rights of movie actors and other performers, and offer them extra royalties for their work. The treaty will enable the performers and the producers to share with the remunerations gained by audiovisual products all over the world, and give them moral rights.
Moreover, the new treaty provides a clearer international legal framework to protect performers’ rights, so as to consolidate their positions in the audiovisual industry. The treaty, for the first time, also allows the performers’ rights to be protected in digital environments, which will help to prevent their performances from being used in TV, films, videos and other audiovisual media without authorizations.
Specifically speaking, the Beijing Treaty provides wider protection to performers’ rights and extends such protection to the Internet and the moral rights of the performers; meanwhile, the protection period has also been prolonged to 50 years. For example, Article 5 of the Beijing Treaty stipulates that “after the transfer of those rights, the performer shall, as regards his live performances or performances fixed in audiovisual fixations, have the right: (i) to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance; and (ii) to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations,” and that “The rights granted to a performer shall, after his death, should be maintained, at least until the expiry of the economic rights…” In addition, Article 7 provides that “Performers shall enjoy the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in audiovisual fixations, in any manner or form.” The agreed statement concerning Article 7 provides that “The reproduction right, as set out in Article 7, and the exceptions permitted thereunder through Article 13, fully apply in the digital environment, in particular to the use of performances in digital form.”
The Beijing Treaty and China’s copyright amendment
As the provisions of the Beijing Treaty are essentially the same with that of China’s current Copyright Law, it does not bring too much pressure to the third amendment of China’s Copyright Law. However, the second draft of China’s Copyright Law (Second Draft) did done some adjustments accordingly and listed the stipulations of performers’ rights as a separate session.
First of all, since the definition of “performer” in China’s current Copyright Law means only performers of works, the Second Draft has extended the meaning of “performers” to “persons who perform literary or artistic works or expressions of folklore,” according to the provisions in the Beijing Treaty.
Meanwhile, referring to the Article 12 of the Beijing Treaty, the Second Draft also stipulates that the main performers have rights to be identified as performers and rights to receive royalties or equitable remuneration for any use of the performance while attributing the rights to the fixation of the performers’ performances in audiovisual fixations to the producers.
Furthermore, given the urgent need to address the problems raised by the relationship between the performers and performance units, Article 35 of the Second Draft provides for performance in the course of employment: The right holder to such performances is decided based on the prior agreements of the parties. If there were no agreements, the rights belong to the performers. For collective performances, such as theater performances, dramas, operas and chorals, the rights are attributed to the performance unit. Meanwhile, in order to ensure the rights of the performance unit, the revision also gives the performance unit the right to use performances without remuneration so long as it is used within the scope of its business.
In addition, the Second Draft also provides for rental rights of the performers, which shows that China’s level of protection for performers has gone beyond the minimum obligations of the provisions of international treaties.
