Beijing Treaty on Audio-visual Performances (BTAP)

The World Intellectual Property Office’s (WIPO) Beijing Treaty entered into force on 28th April 2020. WIPO member states approved the Treaty at a Diplomatic Conference hosted by the Chinese Government in Beijing, from where the Treaty takes its name, in 2012.

It’s overall aim is to improve earning conditions for actors and other audio-visual performers – a development made vitally important in the very apparent devastating impact on cultural production by the economic fallout from the COVID-19 pandemic.

The Treaty is designed to help audio-visual performers – television and film actors, musicians, dancers, and others – many of whom live from job to job in precarious economic circumstances. The Treaty expands audio-visual workers’ performance-related rights, which can translate into increased payments from retransmission – an especially critical benefit as many new productions are halted due to the COVID-19 pandemic.

 

 

The Beijing Treaty modernizes and updates for the digital era the protection for actors, singers, musicians and dancers in audio-visual performances contained in the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961). These updates for the digital era complement the provisions in the WIPO Performances and Phonograms Treaty (WPPT), which updated protections for sound recording artists and for producers of phonograms in 1996. 24 years on and we finally have an instrument to bring audio-visual performers’ rights in line with these.

Follow this link to see main benefits of the Beijing Treaty: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_beijing_flyer.pdf

 

 

 

FAQ about the BEIJING TREATY (BTAP)

Why was such a treaty needed?

The intellectual property protection of audio performances has predominantly been introduced nationally once countries have become parties to international treaties. In the absence of international recognition, many countries have not felt the need to introduce a meaningful intellectual property protection of audio-visual performances in their own laws and regulations.

As content is increasingly audio-visual and its exploitation truly global, the absence of a specific WIPO treaty acknowledging the rights of performers in this field was felt to be out-dated and unfair. The BTAP carries the recognition that all performances of literary and artistic works 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 history behind this treaty and why was it only concluded in 2012? 

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 audio-visual fixations. 1961 was therefore the beginning of a long discrimination between the intellectual property protection of audio and audio-visual recordings at an international level.

A WIPO Conference in 1996 updated the protection in the Rome Convention and scaled up the IP rights of audio performances but failed to extend a similar treatment to audio-visual fixations. Similarly, another Diplomatic Conference in 2000 specifically to deal with the latter reached some provisional agreement but failed to deliver a treaty primarily due to the sensitive issue of the transfer of performers’ rights to the producers.

The rights of performers in audio-visual works are 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 although presumption of transfer provisions may exist in national laws, that does not make those the global rule in audio-visual production contracts between performers and producers.

 

What does the BTAP provide that other WIPO treaties didn’t?

By far the most striking difference is that the BTAP specifically protects audio-visual fixations, whilst the Rome Convention and the WPPT did not.

The BTAP grants a comprehensive list of exclusive rights, including the right of making available on demand, which has become essential considering the latest technological developments and the digital distribution of creative works. The BTAP also awards audio-visual performers moral rights.

What is the difference between economic and moral intellectual property rights?

Moral rights are entitlements to help performers uphold their reputation in their performance(s). 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.

Economic rights enable performers to seek a financial benefit from licensed uses, or, conversely, damages whenever their performances are exploited without their agreement. The rights granted by the BTAP include:

• the right of reproduction
• the right of distribution
• the right of rental
• the right of making available
• the right of broadcasting and communication to the public

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 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 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. These give performers maximum leverage, enabling them to authorize use for fair payment, e.g. a residual or a royalty payment. However, performers are often in a weak bargaining position and are forced to transfer all their economic rights to producers in perpetuity for little more than a symbolic payment. This may be due to the weak collective bargaining tradition in their country, or due to provisions in their legal systems providing for sweeping presumptions of transfer of their rights to the producers or to ineffective union representation. More often, a combination of these factors will prevent exclusive rights from delivering their full potential to performers. 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.

 

What is the relevance of the BTAP to performers?

The BTAP mends an unjustifiable and outdated discrimination between audio performances, already protected by two international treaties, and audio-visual performances, deliberately left aside until 2012. Given the lack of harmonization at the international level, many countries around the world have refrained from extending intellectual property protection to audio-visual performances. This can generate absurd situations whereby an audio recording of a live performance will be protected, while an audio-visual recording of the same performance (e.g. a DVD or an MP4) is not granted the same protection. As the border between sound and audio-visual performances becomes progressively blurred, the persistence of this double standard needs to be redressed. With the adoption of the BTAP, all performances are now finally protected internationally.

 

What is national treatment and how does it work?

The treaty aims to achieve basic harmonization of intellectual property rights for performers in the audio-visual sector at international level. National treatment therefore is the central piece of the treaty, providing that where rights are harmonized, countries are obliged to treat beneficiaries (i.e. performers who are nationals or habitual residents of other contracting parties) the same way they treat their own.

It is worth mentioning that rights granted by the BTAP are an absolute minimum. Any contracting party may decide to go beyond such level and grant its nationals more rights in its national legislation. Should further rights be awarded at national level, those will not be subject to national treatment, which, applies only to the exclusive rights specifically granted by the treaty and to the right to equitable remuneration.

 

What does “reciprocity” entail and when does it apply?

Reciprocity is not a word you will find in the treaty. It is generally intended to refer to such situations where a country may resolve to grant the same protection to performers of other contracting parties that the latter will grant to theirs. Reciprocity prevents one-sided net benefits.

 

What is the right of reproduction?

The right of reproduction gives performers the ability to authorize or prohibit any direct or indirect copy (reproduction) of an audio-visual fixation of their performances, including by digital means.

 

What is the right of distribution?

Distribution means making the original fixation in physical form or its authorized reproductions available to the public by means of sale or any other transfer of ownership. The treaty recognises this as an exclusive right.

 

What is the right of rental?

The BTAP grants performers the exclusive right to decide whether the original fixation of their audio-visual performance (in physical form) or its authorized physical reproduction may be commercially rented. The treaty clearly says that this right is independent from the right of distribution. A DVD, for instance, may thus be legally authorized for sale but not for rental – or the other way around.

 

What is the right of making available?

Making available is the process by which a performance is distributed on digital networks on demand. It is a definition encompassing various interactive digital delivery models, triggered by the final user, from a place and at a time of her choosing. The BTAP grants performers an exclusive right for the making available of audio-visual performances on demand, by wire or wireless means.

As audio-visual content is increasingly distributed on demand over the Internet, on mobile phones and an increasing variety of portable devices, this is likely to be one of the most important economic rights for performers. Because this exclusive right is regularly transferred to the producers, complementary solutions may be appropriate in implementing legislation to secure ongoing revenue to performers for the use of their performances on demand. The BTAP can be the key for making this possible.

 

What is the right of broadcasting and communication to the public?

Broadcasting means the wireless, non-interactive delivery of a live or recorded performance for reception by the public. The definition also includes acts of rebroadcasting. Any other transmission to the public, by any medium, is communication to the public.

This is arguably one of the lesser harmonized provisions in the treaty. Contracting parties may in grant performers an exclusive right, the right to receive equitable remuneration (i.e. a compulsory license) or even nothing at all. Countries may also decide to apply the rights of broadcasting and communication to the public only in respect of certain uses or to limit their application in some other way. It is with respect to this provision, that reciprocity and other reservations may limit the scope of national treatment obligations.

 

How does the BTAP deal with the transfer of the exclusive economic rights of performers to the producer?

The Treaty says that national laws may provide that subject to any contract to the contrary the exclusive rights in the treaty shall be owned, exercised by or transferred to the producer once agreement is given to the fixation of a performance.

It is important to note that:

– countries that already regulate this subject matter differently will not have to change their regulations in compliance with the treaty;

– countries may choose a completely different option, including not to legislate on the matter;

– the blueprint suggested by the treaty for national transfer legislation is “rebuttable”, i.e. subject to any contract to the contrary; and

– it only applies to the exclusive economic rights (not to moral rights nor to the right of equitable remuneration) specifically listed in the treaty – as opposed to other exclusive rights or remuneration rights that may be granted by national legislation.

The Treaty goes on to say that countries wishing to legislate along the lines suggested by the treaty may require that the “consent or contract be in writing and signed by both parties to the contract or by their duly authorized representatives”. Although the treaty provisions are an absolute minimum, it was deemed helpful to make it clear that countries can provide additional security to performers.

The Treaty carries on by saying that, regardless of how countries regulate the transfer of exclusive rights, national laws may “provide the performer with the right to receive royalties or equitable remuneration for any use of the performance, as provided for under [the] Treaty”. A similar benefit may be granted also by individual, collective or other agreement. This provision allows for legislative measures to guarantee performers ongoing payments, even in the event that their exclusive rights are transferred to the producer(s), by way of royalties (usually claimed from the producers and based on their gross revenue) or equitable remuneration (which is generally paid by the users and can be made more effective when subject to mandatory collective management). Such legal entitlements may be extremely helpful where performers do not have a strong bargaining position, thus granting them comparable benefits to those that others may derive from collective agreements and/or individual negotiation.

 

How do provisions in the BTAP apply to existing and future audio-visual performances?

In principle, the provisions in the treaty apply to all fixed performances that exist by the time of its entry into force and to all future audio-visual performances (both live and recorded).

However, the BTAP acknowledges that countries may choose to only grant the economic rights in the treaty to future performances alone, i.e. not to fixed performances that already exist when the treaty becomes binding for them. With respect to those countries, other Contracting Parties may decide, however, to apply reciprocity instead of national treatment (i.e. if one country decides to only grant exclusive rights to future foreign performances, all other countries may reserve the same treatment to performances of that country).

On the other hand, the moral rights protection provided by the BTAP must equally apply to past, present and future audio-visual performances. It is therefore fair to say that the economic relevance of the treaty seems mainly to be for future performances.