Beijing Treaty on Audiovisual Performances

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Jane Lambert

Improvements in broadcasting and recording technologies in the 20th century created the need for new intellectual property rights known as rights in performances to protect the revenues of actors, dancers, musicians. singers and other performers as well as those of their broadcasters and film and sound recording studios in the broadcasts and recordings of their work.  In the United Kingdom, the rights of such performers are protected by Part II of the Copyright, Designs and Patents Act 1988.  Performers who are UK nationals or residents enjoy similar rights in other countries by virtue of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 26 Oct 1961("Rome Convention").

Developments in digital technology towards the end of the last century required a strengthening of those rights which resulted in the WIPO Performances and Phonograms Treaty of 20 Dec 1996 ("the WPPT").  The rights conferred by that treaty were moral rights (the rights to be identified as a performer and to object to derogatory treatment) and economic rights (broadcasting and fixation, reproduction, distribution, rental and making available fixed performances) in respect of phonograms or sound recordings of their work.  Art 2 (b) of the treaty defined "phonogram" as “the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work."

The  Beijing Treaty on Audiovisual Performances confers similar rights on performers in respect of audiovisual recordings that are excluded from the protection of the WPPT.  Art 2 (b) of the Beijing Treaty defines "audiovisual fixation" as  "the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived, reproduced or communicated through a device."  In respect of audiovisual recordings, it confers on performers moral rights and economic rights that are similar to those conferred by the WPPT.

Art 26 of the treaty provides for the treaty to come into force three months after 30 WIPO member states have deposited their instruments of ratification or accession.  The 30th country to accede to the treaty was Indonesia which ratified the treaty on 28 Jan 2020.  The treaty, therefore, came into force on 28 April 2020.

The treaty is not yet binding on this country because the UK has not ratified the treaty even though HM government has signed it (see the list of signatories and contracting parties on the WIPO website). Contracting parties must enact legislation that confers the following rights on performers

• "the exclusive right of authorizing, as regards their performances: (i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and (ii) the fixation of their unfixed performances" under art 6;  
• "the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in audiovisual fixations, in any manner or form" under art 7;  
• "the exclusive right of authorizing the making available to the public of the original and copies of their performances fixed in audiovisual fixations through sale or other transfer of ownership3 under art 8 (1); 
•  "the exclusive right of authorizing the commercial rental to the public of the original and copies of their performances fixed in audiovisual fixations as determined in the national law of Contracting Parties, even after distribution of them by, or pursuant to, authorization by the performer" under art 9 (1); 
• "the exclusive right of authorizing the making available to the public of their performances fixed in audiovisual fixations, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them" under art 10; and
• "the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations" under art 11 (1).

The Director-General of the WIPO has observed that this treaty has come into effect during a pandemic when most of the world's theatres and concert halls have been closed for social distancing. He said:

"Many of the actors and other performers in our beloved series and movies are essentially gig workers, without long-term salaries, equity stakes or great fame  The Beijing Treaty helps give these performers more rights to their work, which in turn boosts their personal revenues. If ever there was a moment to increase the amount - and predictability - of audiovisual performers’ earnings, it is in this COVID-19 era that is negatively affecting economic activity including new productions."

China, Japan and Russia have ratified this treaty but many other big countries including the USA have not.

Anyone wishing to discuss this article or rights in performances generally should send me a message through my contact form. I shall be glad to reply by phone, Zoom, Skype or Google Meet or email.