A new international treaty will add another layer of legal restrictions on audiovisual performances by giving the performers—actors, musicians, dancers and others—a new copyright-like right that will exist alongside copyright.

On June 24, 2012, the World Intellectual Property Organization Diplomatic Conference adopted the Beijing Treaty on Audiovisual Performances. As this treaty may be implemented into national laws, it provides an opportunity for the powerful copyright lobby to expand its already excessive rights while restricting some of our routine activities in the digital environment. The effects on digital rights and consumer rights are yet to be measured.

WIPO has praised the Beijing Treaty for “safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video” and “providing a clearer international legal framework for their protection.” It also claimed that:

[The treaty] will strengthen the economic rights of film actors and other performers and could provide extra income from their work. It will potentially enable performers to share proceeds with producers for revenues generated internationally by audiovisual productions. It also will grant performers moral rights to prevent lack of attribution or distortion of their performances.

David Kappos, head of the USPTO also said in a blog post:

It [the treaty]  will not disrupt American motion picture companies’ global distribution networks. It represents a win-win for labor and industry, allowing them to work even more closely in fighting global piracy. Ratification by the United States and key trading partners will also give American stakeholders another mechanism to promote protection of the intellectual property in their films.

Both the International Federation of Actors (FIA) and the International Federation of Film Producers Associations (FIAPF) have also supported the treaty, with the desire to develop and maintain the protection of the rights of performers in their audiovisual performances in a manner as effective and uniform as possible and to facilitate the enforcement of private contracts and collective agreements around the world. WIPO has published recently a survey of contract practices.

Under this treaty, the agreed term of protection for performers (Art. 14) will be “at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed.” Article 13 provides limitations and exceptions to copyright, essentially leaving it to national law. And Article 15 on technological protection measures contains a complicated footnote clarifying that limitations and exceptions must be respected.

One disturbing aspect of this treaty is that the advocates of ever-stronger copyright law in the U.S., like the entertainment industry, can use it to push for new U.S. laws. Today, there is no such thing as "performers' rights" under U.S. law. Performers may be able to prevent unauthorized fixation of their performances and have whatever rights they collectively negotiate with producers. But the works are only encumbered by copyright, which is held by "authors.” This treaty could be used by the usual suspects (including the MPAA, which cheered its passage in Beijing) to insist that Congress create a whole new system of rights for performers—separate from copyright, yet equally draconian. Indeed, while the WIPO Performances and Phonograms Treaty granted a similar right to music performers, those rights were implemented in a fairly balanced manner, whereas the Beijing Treaty reopens the door for a fresh lobbying opportunity with unpredictable results.

But why would the MPAA—which represents the major Hollywood studios—want a new system of rights for the actors with whom the studios often battle? The answer can be found in the fine print. The Beijing Audiovisual Treaty allows the "performers' rights" to be transferred to the producers. That transfer can be included in the standard terms of an actor's contract and could even be automatic. So, the "performer's rights" could ultimately go to the same companies that hold the copyright. It's hard to see whom that would benefit, other than lawyers.

Other parts of the treaty could also be used to push for some unfortunate changes to U.S. law as part of the steady march towards ever-stronger and intricated copyright system. The treaty calls for a "Right of Making Available of Fixed Performances," which means that individuals could get sued for merely posting a file on the Internet, even if no one downloads it. A pointed by Hannibal Travis:

WIPO Audiovisual Treaty threaten the Internet by potentially outlawing remix culture and fair use of existing content. Many YouTube videos are mashups of news, entertainment, or public affairs videos with additional commentary or montage. There are already precedents for using the removal of “rights management information” from a remix in an attempt to censor artists and other creators of fair use works.

The U.S. Copyright Act does not contain a "making available" right, and only a few widely criticized court decisions suggest that such a right exists. Other U.S. cases that have considered the issue, including in the case against alleged file sharer Jammie Thomas-Rasset, has rejected this theory. Copyright owners, particularly the major record labels, support this right because it would lower their burden of proof in Internet copyright cases. Now, the copyright lobby may return to Capitol Hill with the Beijing Treaty in hand, insisting that Congress create a new "making available" right to comply with the treaty. And we raise this concern based on Article 5 and 16 of the Beijing Treaty, which can undermine fair use.

Article 16 of the WIPO Audiovisual Treaty requires parties to provide civil remedies against those who negligently facilitate the distribution, importation for distribution, communication or making available to the public, “performances or copies of performances fixed in audiovisual fixations knowing that electronic rights management information has been removed or altered without authority.”  This would appear to prohibit, for example, the use of clips of news, films, or television shows with the copyright notices, credits, or contractual use terms intentionally omitted, even when the clips are used in transformative works such as documentary films, news reports, parodies, lip-synching videos, etc.  Existing U.S. law has a copyright management information provision (17 U.S.C. s. 1202(a)), but it requires intentional removal or alteration of the information for purposes of infringement, not mere negligence.

Specifically, the USPTO said the implementation of the Beijing Audiovisual Treaty “may require some technical amendments of the Copyright Act, in particular where Title 17 refers to existing international copyright obligations" (“points of attachment” for parties to this treaty under U.S. law). 

We've seen this before. The anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) started with a WIPO treaty and were subsequently pushed through Congress based on rhetoric of international obligation. It is a trick that effectively allows international bodies to create domestic intellectual property law behind closed doors and bypass the democratic law making process.

With respect to anti-circumvention provisions, in particular, Article 15 of the Beijing Treaty could be used to establish sanctions for additional Digital Rights Management (DRM) technologies to protect the new “performers’ rights” for works that would not otherwise be subject to DRMs. As was the case with the DMCA, this could prevent important fair use applications of the material. The treaty could also limit the very scope of fair use and other copyright exceptions. While Article 13 of the Beijing Treaty allows signatories to extend their national “limitations or exceptions” in copyright to “performer’s rights,” in practice this issue too can be subject to heavy lobbying by the entertainment industry.

The Beijing Treaty could also create pressure for a "rental right" for audiovisual performances, raising the cost of video rentals or limiting them to favored companies. It could further expand "moral rights" for performers, a form of copyright that U.S. law mostly rejects.

Given the many different ways this treaty could be used to expand the copyright regime to restrict creative or otherwise legitimate uses of content, it is important to push back against the copyright lobby in the implementation of this treaty. Let’s be vigilant in making sure that the Beijing Treaty is not used to expand domestic copyright law or to create a new copyright-like legal regime.

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Additional resources:

IP-WATCH cover of negotiations:

WIPO Lauded For New Beijing Treaty On Audiovisual Performances and WIPO Committee Sees Breakthrough On Audiovisual Treaty After 11-Year Delay