Performers handed economic and moral rights in audiovisual works under new international treaty

The Beijing Treaty on Audiovisual Performances (13-page / 49KB PDF) was agreed at a World Intellectual Property Organisation (WIPO) conference in China and provides performers with the exclusive right to control the direct or indirect reproduction of audiovisual works of their performances as well as the "making available to the public of the original and copies of their performances fixed in audiovisual fixations through sale or other transfer of ownership."

Audiovisual fixations are defined in the treaty 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."

Under the treaty performers are also handed the exclusive right to control when the audiovisual material is made available to the public "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."

The treaty also sets out performers' rights to control when audiovisual works of their performances are broadcast and communicated to the public, although the text does state that countries that adopt the treaty can limit or even not apply the right at all. Alternatively the countries can replace the authorisation right with "a right to equitable remuneration for the direct or indirect use of audiovisual works featuring their performances are broadcast or communicated to the public."

Under the treaty performers can also control the commercial rent of audiovisual works featuring their performance in circumstances where the "commercial rental has led to widespread copying of such fixations materially impairing the exclusive right of reproduction of performers." This right is not conferred to performers in countries where there is no such problem.

The moral rights provided to performers under the treaty generally entitle them to require that they are identified as the performer of performances captured in 'audiovisual fixations'. In addition, they have the right to "object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation" under certain circumstances. Both moral rights are applicable even if the performers have transferred their rights under the treaty to producers of the audiovisual content.

Under the treaty countries that ratify the text can legitimately draft limitations or exceptions to the performers' new rights into national law. However, those qualifications must be confined "to certain special cases which do not conflict with a normal exploitation of the performance and do not unreasonably prejudice the legitimate interests of the performer." The countries signed up to the treaty are also obliged to "provide adequate and effective legal remedies" against certain infringements of the performers' rights under the treaty.

The treaty has already been signed by 48 countries, but can only come into force once it has been ratified by 30 countries or intergovernmental organisations, such as the EU, that have been appointed to ratify the text on those countries' behalf. Countries that ratify the treaty are legally bound by its terms. The term of protection of performers' rights can differ in countries where the text has been ratified but must be at least 50 years in duration from the time the audiovisual material is "fixed".

In a statement the European Commission said that it would "take the measures necessary" to sign and ratify the treaty. The EU's Commissioner for Internal Market and Services, Michel Barnier, welcomed the agreement on its formation.

"Actors are ambassadors for cultural expression and exchange," he said. "They have to be able to earn their living from their artistic contribution, because without the means to express themselves, no cultural expression would be possible."

Actors from across the world had appealed to delegates at the WIPO conference to form an agreement on the new treaty. Oscar-winning actress Meryl Streep said: "While digital technology creates a wealth of new opportunities for performers, it also significantly increases the risk of performers loosing control over their very own work product, through the unauthorized manipulation of their images or performances."

"That’s why I urge you to include an audiovisual right in a new International Treaty. In the same way that writers and composers depend upon royalty income for their survival in the long term, performers around the world must benefit, as well, from income from the exploitation of their work," she had urged.

In a statement WIPO said the treaty would provide performers with better rights in the internet age.

"Importantly, the new treaty will strengthen the precarious position of performers in the audiovisual industry by providing a clearer international legal framework for their protection," WIPO said. "For the first time it will provide performers with protection in the digital environment. The treaty will also contribute to safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video."