Audio-visual performers’ rights under Beijing Treaty

Audio-visual performers’ rights under Beijing Treaty

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The Beijing Treaty on Audio-Visual Performances (“Treaty”) was adopted by the WIPO member states during the Diplomatic conference held in Beijing from June 20 to 26, 2012. The Treaty was to come into force three months after ratification by a minimum of 30 contracting member states to the Treaty (“Contracting Parties”). Therefore, with the ratification of the 30th Contracting Party i.e. Indonesia on January 28, 2020, the Beijing Treaty has now entered into force on April 28, 2020. Here’s a quick recap of the provisions of the Treaty. 

The Beijing Treaty aims to supplement the Rome Convention without derogating from the same. It also bridges the gap left by granting protection to the audio-visual performers on their performances, which definitely is the need of the hour. It also complements the provisions in the WIPO Performances and Phonograms Treaty (WPPT), which provides digital protection to performers of aural performances and their fixations, excluding audio-visual performers. The Beijing Treaty lays out a framework for performers of audio-visual performances as it grants economic and moral rights to the performers including but not limited to actors, singers, musicians, dancers and persons who perform literary or artistic works in relation to the unfixed audio-visual performances, as well as the audio-visual fixations of the performances.

The rights under the Beijing Treaty are as follows: –

Other Notable Features of the Treaty

  1. Term of protection: The term of economic rights is fifty (50) years from the end of year in which the performance is fixed and the term of moral rights is till the death of the performer. However, moral rights shall be extended and granted to the performer’s authorised representative until expiry of the economic rights subject to the legislation of the Contracting Party where protection is claimed.
  1. Transfer of Rights: The Contracting Parties may stipulate in their respective legislations that the exclusive economic rights may stand transferred to the producer of the audio-visual fixation of the performance once performers have consented (written) or signed a contract to the audio-visual fixation of an audio-visual performance rendered by them.  The Beijing Treaty does however leave room for the performer to retain these rights by entering into a contract with the producer. Independent of the exclusive rights of the performers, the Treaty also allows Contracting Parties to permit performers to secure (through domestic law or agreements) the right to receive royalties or equitable remuneration for any use of the performance, regardless of any transfer of rights in relation to said performance.
  1. Right to Broadcast and communication to the public in relation to fixed performances: The Treaty grants the performer a right of authorizing the broadcasting and communication to the public of their performances fixed in audio-visual fixations. The said right gives a window to the Contracting Parties wherein instead of the aforesaid right, a Contracting Party establishes a right of equal remuneration for the direct or indirect use of performances fixed in audio-visual fixations for broadcasting or for communication to the public. However, the applicability of the aforesaid right totally depends upon the Contracting Parties as by declaring to WIPO they can either (i) limit the applicability of this right only in certain uses or limit their application in a certain way (ii) deny this right as a whole. 
  1. Applicability of Treaty: The Contracting Parties must enforce the Treaty in regards with the fixed performances that exist as on the respective Effective Date for each Contracting Party. As for unfixed performances, it applies only to those made post the respective Effective Date for each Contracting Party. Interestingly, the Treaty states that the protection provided by it cannot prejudice any acts committed, agreements concluded or rights acquired before its entry into force and also allows Contracting Parties to put transitional provisions in place. Upon prior declaration, the Contracting Parties may opt not to grant to performers some or all of the economic rights that mentioned in the Treaty in relation to performances that existed at the time of entry into force of the Treaty. In such a scenario, other Contracting Parties may then reciprocally limit the application of these rights in relation to that Contracting Party.
  1. Limitations and Exceptions: The Treaty allows the Contracting Parties to permit exceptions and limitations to the rights of performers. However, Contracting Parties must ensure that such limitations and exceptions do not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the performer.
  1. Enforcement of the rights of the performers: The Treaty allows Contracting Parties to adopt legal measures in order to ensure expeditious remedies to stop existing cases of infringement and as also to deter further infringements for the smooth enforcement of the performers’ rights.
  1. Technological Measures and Remedies: Under the Treaty, a Contracting Party is obligated to grant the performers adequate and effective legal remedies against the circumvention of technological measures that are used in connection with the protection of performers’ rights. Contracting Parties are specifically required to provide legal remedies and measures against the removal/altering of information in relation to performers, their performances and related audio-visual fixations, which are required to effectively manage the rights of and collect royalties for performers. 

 Conclusion

Presently, 33 Contracting Parties have ratified and are members of the Treaty. The Contracting Parties include China, European Union, Russia, UK, United States, United Arab Emirates etc. With the economy in relation to the entertainment world being gravely affected by the current pandemic, it remains to be seen how the provisions of the treaty are incorporated into domestic law. 

Although India has a significant audio-visual industry, it is not a Contracting Party to the Treaty. The laws in relation to performer’s rights in India have evolved since the 1994 amendments to the Copyright Act, and while the amendments of 2012 did give certain rights to performers in live performances, the extent of rights of performers is still not clearly defined in India.

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