The rights of actors and audiovisual performers; a new era for the film and TV industry after the entry into force of the Beijing Treaty in 28th of April 2020?

The Beijing Treaty on Audiovisual Performances, signed in 2012 (read here), is about to enter into force (April 28, 2020) after the ratification by Indonesia on January 28, 2020. The objective of the Treaty is to ameliorate the working conditions for performing actors and other audiovisual performers, this by modernizing and updating for the digital era the rights contained in the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961) as well as complementing the provisions in the WIPO Performances and Phonograms Treaty (WPPT). 

The Beijing Treaty confers five kinds of exclusive economic rights in audiovisual performances, namely, reproduction, distribution, rental, making available and broadcasting, and communicating to the public.

With regards to live performances, performers receive three kinds of economic rights, broadcasting (with the exception of rebroadcasting), communication to the public (except when the performance is a broadcast performance) and the right of fixation of the performance.

Particularly  interesting is  that the Treaty grants moral rights to performers,   namely the right to claim to be identified as the performer (except where such an omission would be dictated by the manner of the use of the performance), and the right to object to any distortion, mutilation or other modification that would be prejudicial to the performer’s reputation. The Treaty provides that performers shall enjoy the exclusive right to authorize the broadcasting and communication to the public of their performances fixed in audiovisual format. Nevertheless, Contracting Parties may notify that instead of the right to authorization (the exclusive right to authorize  broadcasting and communication) the performers may receive through national 

legislation a  right  of  remuneration for any direct or indirect use of the performances.

 Furthermore, the Treaty states that Contracting Parties may stipulate in their national law that once a performer has consented to the audiovisual fixation of a performance, the exclusive rights mentioned above   may be transferred to the producer, subject, to the payment of royalties as a result of individual or collective agreements. The Treaty further introduces the three-step test for exceptions in the same way as under  Article 9(2) of the Berne Convention and extends its application to all exclusive rights granted by means of the Treaty.

The Treaty provides that the term of the rights granted will be 50 years (no  formalities are required).It also obligates the Contracting Parties to provide legal remedy to  the circumvention of technological measures, and  puts  into  place necessary measures for  enforcement of the rights granted.

The Treaty   already at the time of signature was  received as a  positive development, such as by WIPO,   anticipating  that it will boost economic development, protect folklore and guarantee the safe and effective distribution of audiovisual contents over the internet. Still, it seems a rather peculiar Treaty, especially in granting  broad flexibility  to  the Contracting Parties, which could have the effect  of   hampering its overall effectiveness. With the Beijing Treaty entering into force soon, we will see if these concerns are well-taken.

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