Francis Gurry led WIPO as Director General from October 1, 2008 to September 30, 2020.

Statement by Javier Bardem to the High Level Copyright Dialogue on the Film Industry

Geneva, July 19, 2011

[To be checked against delivery]

Distinguished ambassadors, delegates, diplomats, panel colleagues, Mr. Fancis Gurry, NGOs and all workers at the WIPO,

It is a great honor for me to participate today in this event on behalf of the thousands of actors that wake up every day trying to make a living in a most possible dignify way. Ones, the most fortunate (10%), for performing a role, others, not so fortunate (20%), for carrying out a working activity complementary to their jobs as actors, and the immense majority (70%) for searching an opportunity and sporadically work. Today my voice is the voice of all the actors in the World… both of the ones who habitually work and of those others who find themselves obliged to look for sustenance by one side and glory by the other.

My humble contribution to this dialogue intends to be limited to describing the work of the actor and his circumstances. The great public may only know him through the characters he has constructed and represented, but behind every actor there is a person, a worker, a creator and a family, with the same concerns, problems, emotions and needs as any other citizen.

Behind the spotlights and the glamour there is a great amount of work, efforts, renunciations, sacrifices and risks. We, the actors, love our profession, without vocation it is impossible to become an actor. Even if it seems contradictory, even if our work may look to consist in feigning (the actors were known as hipocrites in classic Greece), nonetheless, it is work in which the truth and authenticity become a necessary gift. As the Spanish poet, Antonio Machado, said, “after truth, there is nothing as beautiful as fiction”.

And, even if it has not always been the case, the creative dimension of the actor is currently beyond any doubt. Those who today still deny such quality is because they ignore their work or have shameful interests that prevent them from seeing and assert things as they are.

We cannot forget that both Shakespeare and Moliere were actors before being authors, to the extent that they found themselves obliged to write the works that they whished to perform, and may be because of that their works are so authentic and sublime: because they were written to be performed.

Since the first actor took off his mask, in order to be able to perform with his own characterized face, all the actors who have succeeded him have no longer been considered as mere instruments or puppets, fully entering into the temple of Thalia as creators. Because the work of the actor essentially consists in constructing a character, from the guidelines in the script or booklet, and under the guidance that the director of the work may provide.

In this sense, Michael Cainesaid: “since the moment in which a script gets to your hands, you start making deductions about the character that you are going to play. Is like collecting clues. The scriptwriter provides you with some guidance, and if you are lucky, you will also have the comprehension based on your life experience. You can also use your observations of other people who may look in some aspect like your character…”.

In other words: the character only exists potentially in the script, and the actor has to convert it in action, he has to provide it with real elements and nuance, making it become alive and allowing the spectator to identify himself with it. It is so much like this that the work of the actor is also known as “play”. There were even times, those of the silent movies, in which there was no script and the actor had to construct its own character with very little previous guidance.

The magic of an actor performance consists in the actor and the spectator putting in the same character’s shoes, when such interrelation is achieved the performance objective is also achieved: we have made the spectator believe in such character, identifying himself with his feelings, fears and hopes.

This is why the actor has always been a force for transforming styles, consciences, conventionalisms and ideas. If he carries out a good work, he will make the spectator adopt a position before the character, loving or hating it, admiring or despising it, sharing its fate or moving away from it, but in any case will result indifferent.

A proof of what I am saying, and is just an example, is that in the 1930’s, 40’s and 50’s the tobacco companies used to sponsor the cinematographic production, asking in return to have the actors smoking while playing. It is difficult to remember, and was no exception but the most paradigmatic, Humphrey Bogart without a cigarette in his lips of hand, in both his movies and pictures. Everyone succumbed to the cigarette. But when the situation turned the other way around, and the message started to be that smoking is harmful and socially reproachable, neither you or me have seen again a Hollywood sequence as performed by Bogart and his contemporaries.

The irruption and development of the technical means for fixing, reproducing and communicating the actors’ performances, since the cinematographer was invented until the current digital technologies, have incremented the professional requirements of the actors. While in the theater we play for a live public, playing for the cinema or television camera was a great challenge for the actor. While it made some aspects easier, complicated some others. It is true that, different to the theater, the camera allows us to repeat until achieving the definitive version, but it is also true that now it is not enough to perform, it is necessary to make it for a massive public that does not participate in the act. Such public, those millions of eyes and minds, is the focus in the camera.

The camera can be quite intimidating, and requests a high concept of responsibility. Especially when our job must be professional, must accomplish a goal, and such goal depends on how we have worked the character and how we have defended it in front of the camera. Any gesture, as insignificant that it may seem for the human eye, in front of the camera may mean a lot.

The audiovisual work is the result of many creative contributions, and all the elements must suitable come together, especially the creative aspects provided by the scriptwriter, the director, the actors, the cinematographer, the composer of the soundtrack, etc.

But from all the creators participating in the audiovisual work, only two usually prolong their commitment with it further to its production: the director and the starring actors. I am referring to the promotion of the movie, so decisive for its good commercialization.

And, furthermore, from all the creators of the audiovisual work, only the actors provide and compromise their personal image, intrinsically attached to their performance. That is why it is so important for us to have moral rights, protecting the paternity and integrity of our artistic performance. And that with no prejudice for preventing our personal image – protected by fundamental rights – from being used with no authorization or for other purposes than from the normal exploitation and promotion of the movie.

Together with our creative and labor dimensions, it is necessary to note that the actors are also part of a great industry of our time, as it is the audiovisual industry. An industry, which in a country as the USA is the second economic activity, and the first from a strategic and socio-cultural point of view, since through the audiovisual, has exported its economic and social model to the rest of the world. An industry that in almost all developed or developing countries accounts for a 3% to 6% of the Gross Domestic Product (GDP), contributing to the national wealth even more than other relevant industries such as the energetic.

Notwithstanding this, some times, when speaking of “audiovisual industry” or of “audiovisual sector”, there are some aspects that are not considered:

  1. That such audiovisual industry includes both cinematographic and television productions.
  2. That the criteria of production, distribution and exploitation of a cinematographic work and of an audiovisual work to be exclusively broadcasted by television are different.
  3. That currently, and furthermore, audiovisual productions are also being developed in specific formats to be exploited in Internet, whose criteria of production, distribution and exploitation are also different from the others.
  4. That the working conditions for the actor in each one of those three formats (cinema, television and Internet) are different, even though the base and performing elements may be similar in may occasions.

It is precise to have in mid such circumstances and differences when debating the audiovisual. Those differences explain relevant aspects such as the following:

  1. That in the World there are two main systems for protecting the audiovisual creations: the Copyright and the Authors’ Rights.
  2. That, at the same time, there are three differenced audiovisual markets, especially in the distribution and exploitation of the works: the cinema, the television and Internet.
  3. That the audiovisual performances are fundamentalin those three markets.
  4. That, even though the USA is the indisputable World leader in the cinematographic production and distribution, when we refer to television contents (TV movies, series, soap operas and other programs), whose market and distribution system are different from the cinematographic, other countries and markets are playing, and are very competitive.
  5. That there are many other countries that, together with the USA, have developed a powerful audiovisual industry, national and international. Namely, and as examples: Germany, Brazil, Canada, Colombia, Spain, France, India, Italy, Japan, Mexico, Nigeria or the United Kingdom.
  6. That the television market in the last two decades has based its business model in the fiction contents, since other contents such as the sports have been overdrawn. I will give you an example in my own country, with the sane intention of transmitting two messages, one explicit and the other subliminal: during this decade, the two sport events with the biggest television impact in Spain have been the football European Cup of 2008 – or the UEFA Cup – (celebrated precisely here, in Switzerland and in Austria) and the FIFA 2010 World Cup of South Africa; well, the retransmission of both events generated important economic loses for the television companies who acquired the rights for Spain, even though their reached audience records.

But lets get back to the audiovisual work and the creative work of the actor. It is necessary to do so in order to remind that, even thought the contributions by the actors – in both phases of production and exploitation of such works – are decisive and very relevant, we are the only group of creators that still do not have an International Treaty. And this fact is neither justified nor convenient, for the actors themselves, as well as for the industry.

I consider essential for all the implicated parties to work with their best will and knowledge in order to achieve a fair balanced of interests. An unbalanced industry, whose workers are not adequately protected, will fail the sooner or later. And I say this from the legitimacy that concedes my position, that is to say, even though I may not need such rights, as a minority of my colleagues, nonetheless, I claim intellectual property rights for those thousands of actors’ families that cannot make a living exclusively out of their profession, and which are the majority (more than 90%). No audiovisual work can be made just with starring characters; it is necessary a whole group of actors without whose contribution the collective project cannot be born.

On the other side, we, the actors, are the most interested in the audiovisual works reaching the broadest possible diffusion and economic results. In no way we claim rights that may hinder the free commercialization of such works, should that be the case we would be damaging ourselves.

What we ask, because is fair and necessary, in simply to be able to participate to some extent in the economic results of the works, even through the so-called remuneration rights (in the countries in which the Authors’ Rights system rules), or the residuals (in the countries in which the Copyright system rules), o any other system granting the actor a small compensation once he has finished his job at the production phase. That is to say, similar rights to those already granted to scriptwriters, directors, musicians, etc.

The great majority of actors and performers do not benefit from the use of their performances on the Internet, being commercial or non-commercial uses. It is essential that guarantees be found, at national and international level, in order for all performers to be remunerated, whatever are their working condition and the content of their contracts with the producers.

In a globalized World and market the solutions, even with a minimum character, must also be universal. Every time the actors develop our job more across the borders, and also our works are exploited at World level. At the same time the national markets and productions, both cinematographic and television, have gained their own markets. Thus, an international instrument setting a minimum level of protection and with some flexibility, allowing its adaptation to the diverse contractual practices and national legislations, would be a good way for finding the solution.

I heard about the very encouraging and historical outcome of the last meeting of the Standing Committee on Copyright and Related Rights in June this year. For the first time ever the industry and the member States have reached a consensual agreement on the most important provision in the treaty - the one that prevented a successful conclusion of the negotiation not only in 2000 but also in 1996 and that is meant to regulate how the rights of performers are to be transferred or otherwise licensed to the producer of the audiovisual fixation. This agreement also very significantly confirmed the 19 articles provisionally approved in 2000, which remain as significant to performers now – if not more – as they were back in 2000. It also sets the boundaries of anything that may still be fine-tuned with respect to those articles, limiting additional changes to the preamble and clarifications in terms of agreed statements.

Performers from around the world are now expecting the WIPO General Assembly to reconvene the 2000 Diplomatic Conference to resume the negotiation and finalize the treaty as early as possible in 2012.

After so many years since audio performances were first protected, audiovisual performers will expect the WIPO member States to ratify this new treaty promptly to enable it to quickly enter into force and become a widespread standard for the protection of our work at national and international level.

Dear friends, this is what I wanted to tell you. These are the dilemmas, the adversities, the impulses, the hopes, the whishes, the challenges and the circumstances of any given actor in the World. But above all I have tried to describe the true dimension of the actor, and the need of having their audiovisual performances minimally protected in a World more globalized at each moment.

Finally, considering the context of this meeting and the historical fact that very close to this place, in Vevey (Switzerland), lived his last years the author and main character of “The Gold Rush”, “City Lights”, “The Great Dictator” and “Modern Times”, I would not like to say goodbye to you without evoking one of the cinematographic main figures by reading a brief episode of his long biography:

“Sennett me llevó a parte y me explicó su método de trabajo. No tenemos argumento: tomamos una idea y luego seguimos la secuencia natural de los acontecimientos ... Necesitamos algunos gags para esto, dijo. Y luego se volvió hacía mí: Ponte un maquillaje de comedia. Cualquier cosa servirá. Yo no tenía ni idea qué maquillaje ponerme. No me gustaba mi indumentaria de reportero de prensa. Sin embargo, de camino hacia el guardarropa pensé que me pondría unos pantalones anchos, grandes zapatones, un bastón y un sombrero hongo. Quería qué todo fuera una contradicción: los pantalones holgados, el abrigo ceñido, el sombrero pequeño y los zapatos grandes. No estaba seguro de si quería parecer viejo o joven, pero recordando que Sennett esperaba que yo fuera mucho mayor, añadí un pequeño bigote, que, razoné, me haría parecer mayor sin ocultar mi expresión. No tenía ni idea de mi personaje. Pero en cuanto estuve vestido, la ropa y el maquillaje me hicieron sentir qué clase de persona era. Empecé a conocerlo y cuando entré en el escenario ya se había formado por completo. Cuando me presenté ante Sennett entré como el personaje y empecé a pavonearme, balanceando el bastón y paseándome ante él. Los gags y las ideas cómicas se me agolpaban en la cabeza…”.

Señoras y señores, así construyó Charles Chaplin, tal vez, el personaje más carismático del séptimo arte universal: Charlot…