The Beijing Treaty on Audiovisual Performances, signed on June 26, is an attempt to harmonize the substantive IP rights of audiovisual performers across the globe. Intended to complement the WIPO Performances and Phonograms Treaty of 1996 (the “WPPT”), which only covered audio performances, the Beijing Treaty grants audiovisual performers certain moral and economic rights in line with those granted to audio performers under the WPPT. Hailed as extending the rights of American actors over the global reuse of their performances, the Beijing Treaty may nevertheless augur more conflicts between both traditional media and Internet service providers, and U.S. copyright law and the First Amendment.
The Beijing Treaty will come into force once 30 countries have ratified it, a process expected to take at least one year, but significantly less time than the 16 years required to negotiate the Treaty. The delay was largely caused by a standoff between Europe and the USA over the transfer of rights, which clarifies who may claim royalties for the use of audiovisual works. In the U.S., these rights transfer to the producer of the work under the work-made-for-hire doctrine, while in much of Europe they remain in the hands of the performers. Eventually, a compromise was achieved: the presumption is that the rights will transfer to the producer of an audiovisual work unless there is a contract to the contrary.
The ratification process in the Senate will likely focus on the changes to U.S. copyright law required to implement the Beijing Treaty. The USPTO’s position is that because actors and musicians are considered to be “authors” of their performances U.S. law already provides the protection mandated by the Beijing Treaty, and implementation will require only “technical amendments” to the Copyright Act. While much has been made of the fact that the Beijing Treaty provides for moral rights for audiovisual performers, the WPPT provided for similar rights for performers of audio works and moral rights continue to be protected in the U.S. under the regimes of defamation, misappropriation and unfair competition.
More potentially problematic, though, is the right of authorizing the broadcast and fixation of unfixed performances provided for by Article 6, which is not a right that transfers to the producer under the Beijing Treaty. The Treaty defines “performers” as persons “who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.” Most likely, motion picture, television and Broadway stage actors will contractually authorize producers to act in their discretion, but this provision may have significant implications for video hosting services like YouTube in situations where an “amateur” video has been uploaded by a person who is not the performer.
The Beijing Treaty’s biggest impact, though, may be felt at the intersection of First Amendment and copyright law. On paper, the Treaty’s authorization provisions give performers greatly expanded power to control the use of their work, images or likenesses in “unofficial” parodies, remixes, “mash-ups,” etc. While ratification of the Beijing Treaty is some distance away, it seems inevitable that, once implemented, the Treaty will provide yet another obstacle for courts to navigate in harmonizing copyright and free speech.