The WIPO Beijing Treaty on Audiovisual Performances (BTAP) is a multilateral treaty acknowledging for the first time the intellectual property rights of performers with regard to their audiovisual performances. Adopted in 2012, it is a landmark achievement and one that officially ends a discrimination dating from the early 60’s and resulting, until recently, in the sole protection of audio performances in most countries around the world. 



The World Intellectual Property Organization (WIPO) is a specialized UN agency, based in Geneva. It is an inter-governmental organization focusing exclusively on intellectual property, including copyright and neighbouring rights. Member States regularly meet at WIPO to develop new international norms that contribute to the harmonization of laws and regulations in this field around the world. Website: http://www.wipo.int/portal/en/index.html
  
As a non-governmental organization enjoying observer status at WIPO, FIA played an essential role – together with other performers’ organizations - in building bridges among governments and encouraging a consensual approach to the protection of audiovisual performances. The BTAP finally brings justice to the claim that all performances deserve intellectual property protection, regardless of how they are delivered to the audience and the nature (audio or audiovisual) of their fixation. Consistent with another WIPO treaty in 1996 that focused on audio recordings, the BTAP grants audiovisual performers moral and economic rights, including for online exploitation, whilst also departing from previous practice on several counts.


What is the history behind this treaty and why was it only concluded in 2012?


This treaty is the outcome of a lengthy process, encompassing two previously missed opportunities. The first international treaty to protect the intellectual property rights of all performances was the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting organizations. Whilst breaking new ground, it provided limited protection to performers and no moral rights. In addition, one of its provisions expressly denied any economic right to audiovisual fixations. 1961 was therefore the beginning of a long discrimination between the intellectual property protection of audio and audiovisual recordings at an international level that was only mended by the BTAP in 2012. A WIPO Diplomatic Conference in 1996 would finally update the protection in the Rome Convention and upscale the IP rights of audio performers only. Another Diplomatic Conference in 2000 specifically to deal with audiovisual performances reached a provisional agreement on 19 substantive articles but failed to deliver a treaty as diverging opinions on the sensitive issue of the transfer of performers’ rights to producers could not be reconciled. Indeed, finding an acceptable compromise on this matter was the main reason it took so long to finalize an audiovisual performances treaty. The rights of performers in audio-visual works are in fact managed differently in various legal systems and, whilst the producers’ lobby insisted on a mandatory presumption of transfer rule, an overwhelming majority of countries resisted that idea. It took another 12 years for producers to finally accept a provision that, whilst acknowledging presumption of transfer provisions in national laws, does not make those the global rule in audiovisual production contracts between performers and producers.


What is the difference between the BTAP and previous WIPO treaties?


The main difference between the BTAP and the 1961 Rome Convention is that, whilst the latter only awarded performers the right to oppose certain uses of their performances, the former grants them a comprehensive list of exclusive rights, including the right of making available on demand, which has become essential in light of the latest technological developments and the digital distribution of creative works. The BTAP also awards audiovisual performers moral rights, which were not included in the Rome Convention. By far the most striking difference however is the fact that, the BTAP specifically protects audiovisual fixations, whilst the Rome Convention did not.

The WIPO Phonograms and Performances Treaty (WPPT), which was approved in 1996 and entered into force in 2002, is more closely related to the BTAP. However, as the name tells, it only awards IP rights to audio recordings. The catalogue of economic and moral rights is quite similar, although occasional differences exist as to the extent of the protection granted by those provisions and the options that countries may take as they ratify and implement the treaty. Differences also exist with regard to the application of the treaty provisions in time. The most striking difference between the two treaties, however, is certainly the inclusion of a specific provision recognizing the legitimacy of various mechanisms at national level regarding the transfer of the exclusive economic rights in the treaty to the producer. This simply does not exist in the WPPT.


Importance

The Beijing Treaty outlines global standards recognizing the right of audiovisual performers to be compensated fairly for the use of their creative contributions. It grants performers economic rights to improve their livelihoods, as well as moral rights, giving them the ability to better protect their images. This treaty sets a landmark new global IP standard for audiovisual performances at international level.



 

So what is the difference between economic and moral intellectual property rights?


Moral rights are essentially meant to help performers uphold their reputation. Typically, they include the right of paternity (i.e. the right to be named as the performer of one’s performance) and the right of integrity (i.e. the right to oppose any alteration of the performance that may be prejudicial to the reputation of the performer). As they are closely linked to the performers’ personality, they belong to the performer independently of his economic rights, and even after the transfer of those rights, and are protected at least just as long. Economic rights, on the other hand, enable performers to seek a financial benefit from licensed uses, e.g. copying, renting, broadcasting, etc. or, conversely, damages whenever their performances are exploited without their agreement. Economic rights are generally divided in two sub-categories: exclusive rights and statutory licenses. Exclusive rights enable performers to authorize or prohibit certain exploitations of their performances which cannot therefore be legally exploited unless the performer has previously agreed to such use. Statutory licenses are a practical solution to deal with mass usage, where it would be highly unpractical to seek the previous authorization of the right holder(s). In these specific situations, the authorization of the performer will not be needed for each and every use. This is the case for private copying, an exception to the exclusive right of reproduction, which is established in many legal systems and commonly generates levies on recording equipment and/or blank media to compensate the performers. This is equally the case where mass uses - like broadcasting - are subject to an equitable remuneration right, generally administered by collective management organizations.

Most of the economic rights granted by the BTAP are exclusive rights. Broadly speaking, these give performers maximum leverage, enabling them to authorize use against the promise of a fair payment, e.g. a residual or a royalty payment. Where they have a high professional profile or where they are represented by strong trade unions, these rights may deliver them the promise of a fair and reasonable income. However, performers are often in a very weak bargaining position and forced to transfer all their economic rights to producers in perpetuity for little more than a symbolic payment. This is one of the reasons why the treaty provides for alternative options in some cases, i.e. statutory licenses that require no previous authorization for use but must reward the performers and are generally administered by collective management organizations.

Working

The Beijing Treaty will become legally binding only once it is ratified by 30 eligible parties, including countries or certain inter-governmental bodies. It will encourage countries around the world to bring their national intellectual property provisions in line with these new international standards. The wider the ratification of the Beijing Treaty, the stronger the protection of audiovisual performances beyond national borders!


 

Why is this international treaty needed?


It often happens that countries do not break new legislative ground until they feel that others may do the same and on the basis of a minimum common denominator. The intellectual property protection of audio performances, to take one example, has predominantly been introduced nationally once countries have become parties to international treaties providing that treatment. Only a few countries have gone beyond those conventions and extended similar rights to audiovisual performances. In the absence of international recognition, many countries have not felt the need to introduce a meaningful intellectual property protection of audiovisual performances in their own laws and regulations.

As content is increasingly audiovisual and its exploitation truly global, the absence of a specific WIPO treaty acknowledging the rights of performers in this field was felt to be an anachronistic and unfair anomaly. The BTAP carries the recognition that all performances of literary and artistic works or expressions of folklore deserve to be protected, regardless of their nature, thus setting the record straight at last and encouraging countries to amend their intellectual property provisions accordingly.


What is the difference between ratification and accession?


In practice none. Ratifying and acceding to a treaty are essentially one and the same thing, although technically only countries having first signed a treaty can later ratify it. Signing a treaty does not impose any obligation other than to refrain, in good faith, from acts that would defeat the object and purpose of a treaty. It is not unusual for a country to sign a treaty and never ratify it, despite the fact that one act should naturally – and logically - lead to the other. The BTAP was open for signatures until June 23, 2013. It was signed by a total of 72 “eligible parties


The Beijing Treaty on Audiovisual Performances protects performers in audiovisual performances such as films, TV series and musicals.

THE BEIJING TREATY ON AUDIOVISUAL PERFORMANCES

As of 2012, performers in audiovisual works have a treaty of their own.
On 26 June 2012, a Diplomatic Conference under the auspices of the World Intellectual Property Organization (WIPO) finalized a new copyright treaty. Negotiators from WIPO member states, including the U.S., signed the Beijing Treaty on Audiovisual Performances (Beijing Treaty)
The treaty was named in recognition of the city of Beijing, which hosted the final round of negotiations from 20 to 26 June 2012. This concluded over 12 years of negotiations.

WHAT THE BEIJING TREATY COVERS

The Beijing Treaty protects the rights of performers in audiovisual works such as:
  • Films
  • TV series
  • Musicals
The Beijing Treaty provides performers with four kinds economic rights for performances fixed in audiovisual fixations:
  • Reproduction
  • Distribution
  • Rental
  • Making available
For live performances, performers have the rights of:
  • Broadcasting
  • Communication to the public
  • Fixation
The Beijing Treaty also grants performers moral rights. These are the rights to:
  • Be identified as the performer
  • Object to any distortion, mutilation or other modification prejudical to the performer’s reputation
These new rights must last at least 50 years in member countries. They must be automatic and not subject to formalities such as registration or the use of a copyright symbol or notice.
Click to read more about the Beijing Treaty on the WIPO website. Test your international copyright law knowledge here.

WHEN WILL THE NEW COPYRIGHT TREATY TAKE EFFECT?

The Beijing Treaty isn’t yet in force. It will only become effective after 30 countries have ratified or acceded to it. You can check for updates to the contracting parties to the treaty here.

THE IMPORTANCE OF A NEW TREATY AS ILLUSTRATED BY THE BERNE COPYRIGHT TREATY

A new copyright (or copyright-related) treaty is a big deal. The Berne Convention is evidence of this. Berne came into force in 1886 and is still in effect. With its revisions, Berne remains the leading copyright treaty, setting minimum international copyright standards in the 177 member states currently adhering to it.
The number of Berne members changes from time to time. You can check for updates on the WIPO website, here.

Beijing WIPO Audiovisual Treaty

The Beijing WIPO Treaty on the Protection of Audiovisual Performances

This treaty sets a landmark new global IP standard for audiovisual performances that were, until 2012, denied any meaningful protection at international level. As countries ratify or accede to this treaty, they commit to implementing its provisions in their national legal systems and also to providing national treatment to performances from other contracting parties under the terms of this convention.
WIPO is the UN agency for standardisation and cooperation in the field of intellectual property. The WIPO Beijing Treaty treaty is the result of more than 20 years of persistent advocacy work by FIA and other performer organisations. It provides minimum economic and moral IP rights to actors, dancers and other performers with respect to their audiovisual performances. Of course, any country bound to this international legal may decide to grant a more comprehensive protection then the agreed minimum in the Beijing Treaty, which may then be subject to national treatment only on a voluntary basis.
Performers around the world and their representative organisations are united in calling for the widest possible ratification, to help the Beijing Treaty become a truly universal norm.