Beijing Treaty in Africa series #2 and 3: Angola and Benin (Implementing the Beijing Treaty on Audiovisual Performances in Africa)

Back in May, this Kat started the Beijing Treaty in Africa series. After weeks of coping with life during a global pandemic, we visit Angola and Benin to find out if any of the 2 countries have signed and/or ratified/acceded to the Beijing Treaty on Audiovisual Performances (“Beijing Treaty”); if so, to review the law or draft bill (if any) that implements or domesticates the Treaty; and if not, to establish if there are plans to do so.

At the time of starting this series, this Kat was secretly hoping that more African countries would ratify and/or implement the Beijing Treaty or at least, take some visible, decisive steps towards establishing strong performers’ union representation or strengthen existing one(s), collective bargaining environment and/or statutory mechanisms to ensure performers are paid whenever their performances are used. Well, several months later, she's discovered that apart from the 25 African countries that have signed/ratified/acceded to the treaty as at 28 April 2020 when it entered into force, only one African country - Central African Republic has ratified since then. However, this Kat thinks that this may be neither here nor there because (1) some countries who signed the treaty are yet to ratify and implement the treaty; (2) some who have ratified the treaty have yet to implement the treaty into their national laws; (3) some who have implemented the treaty into their national laws have little or no institutional backbone necessary to give effect to the law. That said; this Kat believes that ratifying and implementing the treaty are significant steps that can signal and drive better conditions for performers. Therefore, this Kat continues to hope.

Angola is not a contracting party to the Beijing treaty. However, Angola’s National Service for Copyright and Related Services in Angola (SENADIAC) and its Ministry of Culture (MINCULT) collaborated with WIPO in September 2019 to hold an International Seminar on copyright and related rights. Topics discussed at the seminar include: WIPO treaties on copyright and related rights (this includes Beijing Treaty); Copyright in Angola: Future Perspectives; Copyright and the licensing of property rights; the future of copyright in Portuguese-speaking countries; various aspects of Collective Management. Perhaps such events and discussions are indicative of the country’s intention to ratify/accede to the treaty in future?
 

Angola enacted Law No. 15/14 of July 31, 2014, on Copyright and Related Rights in 2014 (2 years after the Beijing Treaty was signed). This Kat was keen to review this statute to see if it offers any protection for performers of audiovisual works. After a diligent search, this Kat was unable to locate a copy of this statute in English. Only the Portuguese version is available on WIPOLex. Any pointers to an English version of this statute (or any translation offers) are very welcome.

Like Angola, Benin is not a contracting party to the Beijing Treaty. Unlike Angola, Benin’s copyright statute predates the Beijing Treaty. Article 60 of the Law No. 2005-30 of April 5, 2006, relating to Copyright and Related Rights of the Republic of Benin grants various economic rights to performers with respect to their performances generally. It appears from the provisions of Articles 61 to 63 that when it comes to performances generally, there is no presumption of transfer of rights of reproduction and distribution to producers. Under those Articles, authorisation to broadcast, fix and/or reproduce performances may not be implied. However, once a performer authorises the incorporation of their performances in audiovisual fixations, it may be implied that such performer has authorised the permission of other broadcasting organisations to broadcast the performance or fix same. [See Article 70 read with Article 61].

In 2019, the African Union presented the Draft Statute of the African Audiovisual and Cinema Commission. The African Audiovisual and Cinema Commission (AACC) under that statute is to be responsible inter alia for encouraging the creation of appropriate structures at the national, regional and continental levels in the area of audiovisual and cinema. There are some indications that Benin was one of the champions of the AACC and the draft statute. This leads to the question of which side of the pendulum Benin (and other African countries) would swing when it comes to the utility of the Beijing Treaty particularly its Article 12 on establishing a legal presumption of transfer of performers’ rights to the producer once a performer has consented to the fixation of his/her audiovisual performance.

Thoughts, anyone?

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The Beijing Treaty in Africa Series

Beijing Treaty in Africa Series #1: Algeria (Implementing the Beijing Treaty on Audiovisual Performances in Africa)