Performers’ rights treaty upgrades IP protection for individuals

    By Wang Yadong and Hu Cuiqin, Run Ming Law Office

    The Beijing Treaty on Audiovisual Performances, formally concluded on 26 June, has been signed by numerous countries including China. It is an international treaty to protect the rights of performers that fills in the gaps for the comprehensive protection of performers’ rights in existing international treaties.

    Wang Yadong, Executive Partner, Run Ming Law Office
    Wang Yadong
    Executive Partner
    Run Ming Law Office

    Francis Gurry, director-general of the World Intellectual Property Organisation (WIPO), has said the Beijing treaty “will enable performers to interact with greater confidence with the digital environment”. Liu Qi, secretary of the Beijing Municipal Committee of the Communist Party of China, commented: “The successful conclusion of this treaty ends the history of performers’ rights not being accorded full intellectual property protection.”

    The greatest contribution of the treaty is its conformance with historical development trends by including performers’ rights in both audio fixations and video fixations in a unified system, and providing a clearer international legal framework for the protection of performers’ rights.

    Filling the gaps

    Before the conclusion of the treaty, internationally there were three major treaties that had a bearing on the protection of performers’ rights: the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations; the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS); and the 1996 WIPO Performances and Phonograms Treaty (WPPT).

    Although these three major treaties provide substantial protection for performers’ rights, with the appearance of new transmission technologies they could not meet the new demands for protection of their rights. Numerous performers’ groups complained that their rights were not being fully protected, and their dissatisfaction with the protection accorded their audiovisual performances was particularly strong.

    The greatest breakthrough of the Treaty on Audiovisual Performances, compared to the three previous major treaties, is its inclusion of performances in video fixations within the scope of its protection. Pursuant to the previous treaties, performers enjoy the right to request protection in the territory of a contracting party in respect of such acts as the fixation of their performances in an audio fixation without their permission; however, they do not enjoy the right to request protection in respect of the fixation of their performances in a video fixation without their permission.

    In contrast, the Treaty on Audiovisual Performances accords protection to performances fixed in both audio and video fixations, and collectively refers to them as protection of audiovisual performances.

    Treaty provisions

    The treaty fully reflects its value orientation of protecting the individual rights of performers. For example, with respect to the definition of “performer”, the treaty specifies that performers are not solely limited to performances of literary or artistic works, but also include expressions of folklore.

    Hu Cuiqin Lawyer Run Ming Law Office
    Hu Cuiqin
    Run Ming Law Office

    Furthermore, with respect to the scope of the rights enjoyed by performers, the treaty principally addresses moral rights and economic rights. With respect to moral rights, the treaty specifies that performers have the right of attribution and the right to prohibit any distortion, mutilation or other modification that would be prejudicial to their reputation.

    These moral rights exist independently of a performer’s economic rights, and he or she continues to enjoy them even after the transfer of his or her performance rights. The treaty additionally specifies that editing, compression, dubbing or formatting in existing or new media or formats do not in themselves amount to modifications in a performer’s performance.

    Economic rights

    With respect to economic rights, the treaty specifies that a performer has the right to reproduce, distribute, rent, broadcast and communicate to the public his or her performances and to make fixed performances available to the public. It offers the possibility for performers and producers to share the income earned internationally on audiovisual fixations.

    Furthermore, the treaty additionally provides for the transfer of rights, limitations and exceptions, terms of protection, etc. Particularly worthy of note are the provisions of the treaty on the transfer of performers’ rights. Article 12 (transfer of rights) specifies that “a contracting party may provide in its national law that once a performer has consented to fixation of his or her performance in an audiovisual fixation, the exclusive rights of authorisation … shall be owned or exercised by, or transferred to, the producer of such audiovisual fixation subject to any contract to the contrary between the performer and the producer of the audiovisual fixation as determined by the national law”.

    This provision provides a solution in respect of the vesting of the property rights of performers: a contracting party may provide in its national law that, in principle, rights shall vest in the producer, however the performer shall have the option to determine the issue of the vesting of the rights by way of a written contract.

    Effect on the PRC

    The PRC is currently amending the Copyright Law for the third time. The Copyright Law (2nd Draft of the Bill of Amendment) (Draft for Public Comment) published on 6 July already demonstrates convergence with international practice. For consistency with WPPT, the draft has added provisions on the right of rental of performers, the right of performers and producers of audio fixations to obtain remuneration, etc.

    One point worth noting is that the draft draws on the provisions of article 12 of the treaty, providing that audiovisual performers have the right to contractually provide for the ownership of audiovisual works; and in the absence of such provisions, ownership vests in the performer, although collective service performance rights are enjoyed by the performance entity.

    As provided by contract or by law, rights in service performances are enjoyed by the performers, but the performance entity may use such performances free of charge within its scope of business.

    Wang Yadong is the executive partner and Hu Cuiqin is a lawyer at Run Ming Law Office

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