Who wants to be a movie star, earning royalties from films distributed around the world? Many of us. And thanks to a new international treaty, performers in audiovisual (AV) productions – professionals and amateurs alike - may soon find it easier to boost their earnings. In the Internet era, stardom can burst upon unwitting amateurs with unexpected energy, allowing them to join Bollywood, Nollywood and Hollywood stars more easily than in the past. This golden era of media production has increased awareness among the general public of the rights involved in audiovisual productions. In the meantime, AV professionals, such as actors in motion pictures and TV series, have given tremendous support for a new international agreement that provides legal protection to performers in AV productions, and that is fully applicable in the digital environment.
Here’s the issue: Until June 2012, something was missing for AV performers – for actors in everything from high-production films to online viral hits - in the international copyright and related rights framework. That’s when member states of the World Intellectual Property Organization (WIPO) adopted the Beijing Treaty on Audiovisual Performances. The Beijing Treaty, which was finalized in the capital of the People’s Republic of China, shores up the rights of performers in audiovisual works, such as films, TV series or musicals. In practical terms, the treaty’s provisions provide actors, musicians, dancers and other performers in an audiovisual work the ability to be remunerated and enjoy better control over their work. The treaty capped decades of work toward the recognition of audiovisual performances in international treaties. The treaty will enter into force once it has been ratified by 30 eligible parties.
The Beijing Treaty accomplishes three main goals:
1. It grants minimum economic rights for audiovisual performers, which will allow them to be remunerated. This includes the exclusive rights of reproduction, distribution, rental and making available, the exclusive right of broadcasting and communication to the public, as well as the international standard of a 50-year term of protection. In the case of professional productions, many contracts call for performers to transfer their economic rights to the producer. While this practice may continue, the Beijing Treaty adds leverage in negotiations for the performers, especially for those in works that are intended for cross-border licensing.
2. The beneficiaries receive minimum moral rights pertaining to being identified for the work and the ability to object to distortions of their performance. These rights are non-transferable, ensuring that their performances will be protected when the products are used by other parties.
3. The treaty ensures a high level of protection for audiovisual performers, giving their rights recognition at an international level. In this way, when it comes into force this treaty will strengthen the position of performers in the audiovisual industry by providing a clearer international legal framework for their protection. Also, the treaty includes protection in the digital environment.
Previously, many actors would not receive international protection on the same level as the producer. In light of that, the performance incorporated in the film based on the creative work of the actors often would not lead to payment for foreign broadcast or streaming income, for example.
The Rome Convention (1961) is the international instrument that ensures minimum protection for performers; this convention is still the cornerstone for the protection of performers today. The WIPO Performances and Phonograms Treaty (WPPT) is essentially an update to the Rome Convention and, together with the TRIPS Agreement, these treaties formed the international framework for the minimum protection for performers. In this framework, the AV performer could enjoy some minimal protection, but with the update of the WPPT, the rights of AV performers were not brought up to speed alongside other performances, such as performances incorporated in phonograms.
The road to Beijing
An international recognition of audiovisual performer’s minimum rights has been long sought by many WIPO member states and significant stakeholders. During negotiations for the WIPO Performances and Phonograms Treaty (WPPT) at the WIPO Diplomatic Conference of 1996, member states concluded that the work on audiovisual performances should continue separately at a later stage.
In 2000 the WIPO Diplomatic Conference on the Protection of Audiovisual Performances was held in Geneva, further adding to the framework for the Beijing Treaty. Nineteen out of the twenty substantive treaty provisions were agreed to by Member States at this Diplomatic Conference.
In 2010 and 2011 the ongoing discussions took on new momentum when promising negotiations began among key stakeholders, and consequently among key WIPO member state governments. In June 2011, member states reached agreement on transfer of rights – meaning the contractual transfer of rights from a performer to a producer (right of reproduction, distribution etc.) once a performer has consented to fixation of his or her performance -- at the 22th session of the WIPO Standing Committee on Copyright and Related Rights. This cleared the way for a new Diplomatic Conference, an international meeting where treaties are negotiated and often finalized.
From June 20 through 26, 2012, 155 WIPO member states, the European Union, six inter-governmental organizations and 45 non-governmental organizations met in Beijing to complete the WIPO Beijing Treaty on Audiovisual Performances. The Final Act was adopted by the Diplomatic Conference on June 24, 2012, and was signed by 123 countries. Forty-eight WIPO member states signed the treaty at the signature ceremony on June 26, 2012, and a year later 24 additional WIPO member states had expressed in principle their willingness to be bound by the treaty in the future by signing the treaty, making the current number of signatures 72. Many of these countries are likely to ratify the treaty, as signature, while not binding, is a strong expression of support for the proposed treaty.
Last Updated: January 2014