29 Jun, 2012

New “Beijing Treaty” Firms Up Copyright Protection for Audiovisual Performances

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Beijing, June 26, 2012 – The diplomatic conference to finalize a new treaty for audiovisual performers was concluded on June 26, 2012 as negotiators from member states of the World Intellectual Property Organisation (WIPO) signed the Beijing Treaty on Audiovisual Performances (BTAP) –  so-named in recognition of the city that hosted the final round of negotiations. The new treaty brings audiovisual performers into the fold of the international copyright framework in a comprehensive way, for the first time.

WIPO Director General Francis Gurry thanked the Government of China and the Municipality of Beijing for the outstanding organization of the Diplomatic Conference on the Protection of Audiovisual Performances which met from June 20 to 26, 2012. He expressed gratitude particularly to the National Copyright Administration of China (NCAC) and the Municipality of Beijing for taking the lead in staging the Diplomatic Conference and for their generosity.

BTAP 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 will also grant performers moral rights to prevent lack of attribution or distortion of their performances.

Importantly, the new treaty will strengthen the precarious position of performers in the audiovisual industry by providing a clearer international legal framework for their protection. For the first time it will provide performers with protection in the digital environment. 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.

The treaty involved over 12 years of negotiations held under WIPO auspices. Mr. Gurry hailed this major development in the history of international copyright as a success of the multilateral system. He noted that “the international copyright framework will no longer discriminate against one set of performers.” He expressed hope that member states would continue to build on the excellent “spirit of Beijing” to take forward the work of the Organization in other key areas.

Speaking at the closing ceremony, 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 Liu Qi, described the Treaty as the pride of Beijing. “Respect for IP is a must,” he said. “We will grasp this opportunity to further strengthen intellectual property and build Beijing as the first city of IP.”

NCAC Minister Liu Binjie, who presided over the Diplomatic Conference, praised the “constructive climate, spirit of cooperation, flexibility and pragmatism demonstrated by all the delegations” and appealed to member states to expedite the process of ratification and accession to the Treaty.

The closing ceremony was also attended by the Mayor of Beijing Guo Jinlong, Vice Minister of NCAC Yan Xiaohong and Deputy Mayor of Beijing Lu Wei. The Diplomatic Conference was opened by China State Counselor Liu Yandong and Beijing Deputy Mayor Lu Wei.

At the opening of the Conference actors from around the world  –  including American Meryl Streep, Brazilian Sonia Braga, Chinese Mei Baojiu and Spanish actors Javier Bardem and Antonio Banderas  –  appealed for adoption of the treaty.

Streep, who won the Oscar for best actress this year, said in a recorded statement, “This is a pivotal time in the performers’ battle for intellectual property protection. While digital technology creates a wealth of new opportunities for performers, it also significantly increases the risk of performers loosing control over their very own work product, through the unauthorized manipulation of their images or performances.” She added, “In the same way that writers and composers depend upon royalty income for their survival in the long term, performers around the world must benefit, as well, from income from the exploitation of their work.”

Speaking for actors around the world who are struggling to make a living, Spanish star Javier Bardem said “The actors are part of a great industry of our time. We are the only group of creators that still do not have an International Treaty.” He warned that “an unbalanced industry, whose workers are not adequately protected, will fail sooner or later.”

Renowned Beijing opera performer Mei Baojiu, born to a family of actors and whose father was also a well known opera performer, also urged the Diplomatic Conference to adopt a treaty to protect audiovisual performances. He said performer’s rights have not been given adequate protection and recognition through international instruments. “This is a harm done towards all professional artists. I would like to urge all delegates to fulfill your responsibility on the issue of rights of performers.’’

In a closing message, international actors present at the Diplomatic Conference hailed the successful conclusion of the treaty. Chinese performer Wang Xiaotang, Indian film producer Bobbi Bedi and International Federation of Actors (FIA) President Agnette Haaland addressed delegates.

The Diplomatic Conference was attended by 156 member states, 6 intergovernmental organizations and 45 non-governmental organizations. This is the highest level of participation ever at a WIPO Diplomatic Conference. 122 countries signed the Final Act of the treaty, and 48 countries have signed the treaty itself.

The treaty will enter into force once it has been ratified by 30 eligible parties, including countries or certain intergovernmental organizations. Signature of the treaty constitutes a preliminary endorsement by demonstrating the state’s intent to examine the treaty domestically and consider ratification, though signing does not create a binding legal obligation to ratify.

Ratification or accession signifies an agreement to be legally bound by the terms of the treaty. Though accession has the same legal effect as ratification, the procedures differ. In the case of ratification, the state first signs and then ratifies the treaty. The procedure for accession has only one step and is therefore not preceded by an act of signature.

Most commonly, countries that support a treaty sign shortly after it has been adopted. They then ratify the treaty when all of their domestically required legal procedures have been fulfilled. Other states may begin with the domestic approval process and accede to the treaty once their domestic procedures have been completed, without signing the treaty first.

The full text of the treaty and all related documents available by clicking here.

Background and Historical Context

When the International Conference for the Protection of Authors’ Rights was convened in 1883, the delegates of literary societies, artists, writers, and publishers from various nations set out to draft clear and concise articles that would unify the legal framework for literary properties and summarize the principles acceptable to all nations. The resulting Berne Convention succeeded in protecting intellectual property rights for creative works of authors and artists.

The early 20th century saw the development of an entire industry around silent films, and soon after, talking pictures. For the first time, performers – such as actors and singers – were being recorded, and their performances were reproduced and distributed to audiences, both domestically and internationally.

This extended the reach of these productions beyond live audiences. This was one reason the Berne Union, the International Labour Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) formulated the International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organization of 1961 (Rome Convention). While the Rome Convention provided protection for audio performers, it only gave limited rights to audiovisual performers.

In 1996, the WIPO Performances and Phonograms Treaty (WPPT) was signed, and it entered into force in 2002. The WPPT modernized international standards for sound performances. Audiovisual performers and their performances continued to be largely unprotected by international standards.

In 2000, discussions on a treaty that would shore up the rights of performers in their audiovisual performances made significant progress, with provisional agreement on 19 of the 20 articles under negotiation. Negotiators at the time did not agree on whether or how a treaty on performers’ rights should deal with the transfer of rights from the performer to the producer, and suspended the diplomatic conference.

Member states at the Standing Committee on Copyright and Related Rights, meeting in June 2011 in Geneva, agreed on compromise wording for the provision on the transfer of rights which made it sufficiently flexible to adapt to different national laws, thereby paving the way for the conclusion of a treaty. The Beijing diplomatic conference finalised the work started twelve years ago.

Highlights of the Opening Ceremony

Francis Gurry, Director General, World Intellectual Property Organization (WIPO):

There are many reasons why this gathering is important. In the first place, it is an affirmation of the relevance of multilateralism, in general, and of multilateral rule-making in the field of intellectual property, in particular. We are meeting at a time when multilateral agreement is a precious commodity. The complexity of interconnection and interdependence, as well as the great diversity of conditions and levels of development prevailing in the world, make it extremely difficult to identify issues which enjoy a community of interest and on which there is universality of agreement.

Actors and audiovisual performers are fundamental to our capacity to experience the art that an author or composer has created. They are, as their ancient Greek name indicated, interpreters, who mediate between the creative work and the audience. Their performances instruct, move and enrich us and are intrinsically worthy of protection.

It is particularly appropriate that the value of performers should be recognized in a treaty concluded in China, both because of the depth of China’s historical association with theatre and performance and because of the vitality and dynamism of its contemporary theatre, cinema and television. Theatre, acting and performance in China date back to the Shang Dynasty and enjoy an unbroken historical continuity of development and adaptation leading to the blossoming contemporary culture that saw China produce over 500 feature films in 2010 and the largest number of television series of any country in the world.

It has been a long road to Beijing for performers. At the revision conference of the Berne Convention in 1928 in Rome, concern was expressed that the Berne Convention did not adequately protect performers, and a study was commissioned. It is not surprising that the rights of performers became an important issue in the late 1920s. The preceding three decades had seen the development of an entire industry around silent films.

For the first time in history, visual performances were being recorded, reproduced and distributed to audiences, both domestically and internationally. A single, recorded performance now had the power to influence tens of thousands of people, instead of the few hundred that were able to be present at a live performance. Given the initial impetus that was provided by silent movies, it is fitting that we should conclude a treaty to protect performers’ rights in the same year that the Academy Award for the best leading role was awarded to Jean Dujardin, the actor of the silent film The Artist.

Like all creative works, audiovisual performances face both opportunity and risk in the digital environment. Digital technology and the Internet offer the promise of a global audience and the unprecedented availability of creative works. At the same time, they make creative works increasingly vulnerable to unfair exploitation. The Beijing Treaty will enable performers to interact with greater confidence with the digital environment. It will remedy a widely perceived injustice of the unequal treatment of audiovisual performances, compared to musical performances, at the multilateral level. We are grateful to the Government of China for its leadership in providing the platform to address this deficiency. I urge you all to take the final step to the international recognition of the intrinsic worth of audiovisual performances by concluding the Beijing Treaty in the coming days.

Speaking to the opening ceremony, Chinese State Counselor Liu Yandong underlined the importance of innovation in driving economic, social and cultural development. Mrs. Liu said China has made great strides in the area of IP and underlined that her country is committed to IP protection.

“The Chinese Government has a very clear attitude and strong position on the protection of IP,” she said. “Last year, China took new steps for and is determined to step up its implementation measures to protect IP. We wish to establish a sound and effective IP strategy and system with a view to unleashing the dynamism of science and technology.’’

The State Counselor stressed the need for IP to strike an appropriate balance among the interests of those who generate IP, users and the general public, and to take into account the specificity of countries in terms of their levels of development. “I believe that as long as we show sufficient respect for the specific circumstances of various nations, properly accommodate the interests of various constituencies, especially those of developing nations, and engage in dialogue and cooperation on an equal and mutually beneficial basis, we will definitely succeed in establishing an international IP protection regime that is balanced, effective, acceptable and beneficial to all parties” she said.

Beijing Deputy Mayor Lu Wei welcomed the broad consensus that led to the convening of the Diplomatic Conference. He said a positive outcome of the meeting would open a new chapter in the history of intellectual property. The Deputy Mayor described his city as the political and cultural capital of China, where economic and social prosperity thrive. He said it is fitting that the Conference is being held in Beijing.

“The decision to entrust Beijing to host this Diplomatic Conference is a reflection of both trust in and honor to Beijing, which we will take as an opportunity to speed up our efforts in scientific and technological innovation, as well as in cultural innovation, and to constantly improve our systems for IP creation, management, protection and utilization,” he said. The Beijing Municipal Government, he noted, is strongly committed to improving the administration of IP rights protection and ensuring an enabling environment for innovation and creativity to prosper.