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WIPO attempts treaty to protect Audiovisual Performers


The World Intellectual Property Organisation's (WIPO) Assembly is organising a global diplomatic conference to discuss ways to promote and protect the interests of televisual performers. The Diplomatic Conference will take place in Beijing in June 2012.

WIPO Director General Francis Gurry said 'While some countries have domestic legislation that grants certain rights to performers in audiovisual works there is a legal vacuum at the international level.

Performers have not had control over how and when their performances are used abroad nor any legal right to payment'. Although at a local level whether on a national basis, or regional basis initiatives exist to protect the rights of the performer whether actor, musician, composer or writer concerning their work on screen, the increasing use of the Internet and Android devices to watch and listen to content is requiring a more universal set of rules.

There is no consistent method of protecting audiovisual performers at an international level. WIPO affords a wide definition to audiovisual performer so as to include actors, dancers, musicians and children performers.

The aim is to provide protection for both film and TV, but other outlets such as DVD and any other audiovisual platform.

The 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (The Rome Convention) gave singers, musicians, dancer and actors limited protection at an international level. The process was updated in 1996, as a consequence of WIPO's Performers and Phonogram Treaty; but surprisingly it only addressed matters from a sound basis leaving a gap in respect of visual performances.

WIPO had an attempt to try and resolve matters but the basis upon implementation could not be resolved.

Since 2001, WIPO have been looking at ways of trying to improve the knowledge on the situation and a number of local, regional and national surveys were undertaken to ascertain the weaknesses and also solutions to ensure audiovisual performances were better protected.

Technology and physical borders were means of protecting and controlling the exploitation of performances, but a gradual but growing shift in viewing habits to the Internet and the near universal availability of material has given rise to this much needed and timely review of this area of Intellectual Property protection.

New markets exist for content and the surface has yet to be scratched, and if a clear treaty can be agreed it will help to bolster protection of audiovisual performances both in the exploitation of film, television and video, but also through all digital networks.

It is hoped that as part of the reforms the Beijing conference takes account of the need to protect script content, formats as well as the contribution of actors, musicians and dancers.

It is hoped that the adoption of the treaty will give rise to better legal protection of audiovisual performers as an international level.

One aspiration of the Conference is to promote enforceable contractual rights across different legal jurisdictions. In developing countries, but not exclusively so, there is a need for a strong framework to ensure good standards, protection of rights and enforcement of performers contractual terms.

Most contracts only are enforceable in their own jurisdiction, but what is required is a document or series of documents that have international recognition. However, most laws and their recognition only apply to a particular jurisdiction whereas what is required is the potential to have standards applicable and enforceable across borders.

The aspired standards include moving towards written contracts, better working conditions, entitlement to repeat royalties in respect of broadcasts and possibly downloads and protection of a performers moral rights.

One area to be considered is the right of audiovisual performers to have the exclusive right to compel the reproduction of their audiovisual performance so it is made available to the public. How this will work in practice remains to be seen, and including whether it is commercially possible or viable.
Although it is intended for the Treaty to be agreed and ratified at the June conference in Beijing, the consequence will still require implementation at a local level. However, the implementation will address differences in enforcement from one country to another and could counter against the intention to have harmonisation of the enforcement principles.

Right of Distribution
(1) Performers shall enjoy the exclusive right of authorizing 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.
(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixed performance with the authorization of the performer.

Julian Wilkins

Julian Wilkins is Editorial Director for Blue Pencil Media Limited. Julian has a LLB (Hons) in law and M.Phil in law as well as a Diploma in European law and was admitted as a solicitor in 1988; he practices in the area of media, entertainment, and intellectual property law as a consultant for Devereaux Solicitors in London. Julian is also a Notary Public and CEDR accredited commercial mediator. Julian has written for academic publications and contributed to an Exhibition Catalogue about 1960s photographer Philip Townsend. Julian is a member of the International Association of Entertainment Lawyers and also the British Institute of International and Comparative law. Julian is a finalist in The Media Lunch Club “Short Circuit” script competition to be held in November 2011. Julian’s comments “The rapidly changing world economy and technology is presenting incredible opportunities for the Creative Industries and Blue Pencil hopes to reflect and contribute to these changes.”

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