Negotiators Meet to Finalize Pact on Performers Rights

Geneva, November 27, 2000
Press Releases PR/2000/248

Talks to conclude a multilateral agreement that will facilitate the international exchange of films and television programs by harmonizing national laws governing the rights of performers in their audiovisual work will be held in Geneva from December 7 to 20, 2000. The Diplomatic Conference on the Protection of Audiovisual Performances is expected to finalize an international instrument to safeguard the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video. The instrument will either take the form of a new treaty or a protocol to the WIPO Performances and Phonograms Treaty (WPPT).

Performers—that is, singers, musicians, dancers and actors—have enjoyed international protection for their performances since the adoption of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention) in 1961. In 1996, the adoption of the WPPT modernized and updated these standards to cover use of their performances on the Internet. The Rome Convention and the WPPT, however, grant protection mainly in relation to sound recordings of performances, and they only address the audiovisual aspects of performances to a very limited extent.

The issue of protection of audiovisual performances was discussed at the 1996 Diplomatic Conference which adopted the WPPT. Although no instrument was concluded on this issue due to a lack of consensus at that time, the Conference adopted a resolution stating that the issue should be the subject of a subsequent Diplomatic Conference which is to take place in December 2000.

The adoption of a new instrument will strengthen the position of performers in the audiovisual industry by providing a clearer legal basis for the international use of audiovisual works, both in traditional media and in digital networks.

Although the primary beneficiaries of the agreement are performers, producers and distributors also stand to benefit from its implementation. The agreement will iron out some important legal differences in the national legislation of different nations and thereby facilitate international commerce and the exchange of films and television programs between countries. The making of a film or other audiovisual work involves contributions from many different individuals often from a variety of countries. Increasingly, the film productions that are delivered to our cinema and television screens are produced and financed across national borders. Such arrangements underline the importance of creating an international operating environment which balances different interests and defines the intellectual property rights of the parties involved.

The main outstanding issues to be decided by the Diplomatic Conference include:

  • National Treatment: Rules on national treatment entitle foreign rights owners to the same treatment as nationals. The question is whether the instrument should apply a broad national treatment system, with only few and well-defined exceptions, or a more limited system, in which national treatment only applies to the rights granted under the instrument.
  • Transfer of rights: The multitude of contributors to a film contrasts dramatically with the commercial necessity for a single focal point of responsibility, normally the producer, to authorize and manage the distribution and other dissemination of the film. Whether this issue will be reflected in the new instrument, and if so, how, remains controversial. The Diplomatic Conference will consider possibilities such as:
  • Mandating a rebuttable presumption of transfer of economic rights from performers to producers. This would mean that the economic rights would normally be transferred to the producer unless the contract between the performer and the producer provides differently.
  • Leaving the transfer of rights to be decided upon in a contract between the performer and the producer, but permit the producer to allow third parties to use the audiovisual production.
  • Leaving the rules on transfer to be defined by each individual country, but establish international rules indicating which national law should apply to a given film (and under which circumstances).
  • Rights of broadcasting and communication to the public: The Diplomatic Conference will decide whether the instrument should include a provision that grants audiovisual performers such rights, and, if so, whether such rights should be exclusive rights of authorization, or rights of equitable remuneration whereby a performer is paid a given amount for the use of his work.
  • Application in time: Negotiators will decide whether the instrument should cover films that already exist, or whether it should apply only to those made after the instrument has entered into force.
  • Form of the instrument, a protocol versus an independent treaty: While most countries have proposed that the international instrument should be a protocol to the WPPT, as indicated in the resolution passed at the 1996 Diplomatic Conference some countries have proposed that it should take the form of an independent treaty as it covers new matter.

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