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China – A Brief Introduction To The Beijing Treaty On Audiovisual Performance.

2 December, 2012

 

Legal News & Analysis – Asia Pacific – China – Intellectual Property

 

The Beijing Treaty on Audiovisual Performances was concluded at a diplomatic conference in China on June 20th to 26th 2012. The new Treaty will for the first time give actors and other performers a comprehensive international framework within the copyright system for their performances. 156 WIPO member states, 6 intergovernmental organizations and 44 non-governmental organizations attended this important conference.  At the conclusion of the conference, 48 countries had already signed the Treaty.  In addition to these countries, 122 countries have signed the Final Act of the Treaty.

 

About the Treaty

 

This Treaty secures the rights of audiovisual performers and their performances in both offline and online environments. Performers include actors, singers, musicians, dancers, and others who act, sing, deliver, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore (Article 2).

 

According to the Treaty, performers enjoy the exclusive rights of reproduction, distribution, rental of their performances, making the fixed performances available and broadcasting and communication to the public (Articles 7-11). This means that actors, singers, musicians, dancers, and others may decide when to make their performances available on the Internet, DVD, etc., and when their performances are used they will also be fairly remunerated. Furthermore, the moral rights of performers are recognized in the Treaty, that is, the right to be named and the right to object to distortions, mutilation or other modifications of the performance (Article 5).

 

In addition, with regard to limitations and exceptions, the contracting parties may provide for the same kind of limitations as they provide for literary and artistic works in their national legislations (Art. 13). Under the Treaty, performers are granted protection until the end of a period of 50 years from the year the performance was fixed (Article 14).

 

Entry into Force

 

The Treaty will enter into force once it has been ratified by 30 eligible parties, including countries or certain intergovernmental organizations. Signature of the Treaty constitutes a preliminary endorsement by demonstrating the state’s intent to examine the treaty domestically and consider ratification, though signing does not create a binding legal obligation to ratify.

 

Background

 

Before the conclusion of the Beijing Treaty, there are mainly 3 international agreements designed to protect the rights of performers, namely, the 1961 Rome Convention, the 1994 TRIPS, and the 1996 WPPT.

 

The early 20th century saw the development of an entire industry around silent films, and soon after, talking pictures. For the first time, performers were being recorded, and their performances were reproduced and distributed to audiences, both domestically and internationally. This extended the reach of these productions beyond live audiences.

 

Such condition stimulated the formulation of the International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organization of 1961 (Rome Convention). While the Rome Convention provided protection for audio performers, it only gave limited rights to audiovisual performers.

 

The WIPO Performances and Phonograms Treaty (WPPT) was signed in 1996 and entered into force in 2002. The WPPT modernized international standards for sound performances. Audiovisual performers and their performances continued to be largely unprotected by international standards.

 

Impact of Beijing Treaty on Audiovisual Performances

 

Compared with the above-listed prior treaties, the Beijing Treaty on Audiovisual Performances (BTAP) enables a wider protection for audiovisual performances in both audio and visual forms such as through television, film and video. It will strengthen the precarious position of performers in the audiovisual industry under the digital environment by providing a clearer international legal framework for their protection. The performers are also expected to gain more economic rights from their works and are granted moral rights to prevent lack of attribution or distortion of their performances.

 

Under the current China Copyright Law in force, two of the performer’s rights as set out in the Beijing Treaty are not protected in China, namely, the right of rental and the right of broadcasting and communication to the public. This is because China announced reservation to the regulation of “broadcasting and communication to the public”. Meanwhile, the current copyright law does not extend the rights of performers to rental of reproductions (audiovisual fixations) after its distribution.

 

However, it should be mentioned that the third amendment to the China Copyright Law is in progress. In the latest version of the draft, the performers are entitled to “authorize others to reproduce, distribute or rent sound recordings and video recordings incorporating his performance and the reproductions of such recordings”.

  

 




For further information, please contact:
 
Grace Li, Ella, Cheong (Hong Kong & Beijing)
gli@ellacheong.com
 

 

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