Friday 20 July 2012

The Devil is in the Footnotes: Moral Rights and the Beijing Treaty

Photo from China Daily
In this, the fifth in her series of guest pieces for the 1709 Blog, Mira T. Sundara Rajan takes a close look at the treatment of moral rights in the new, much-vaunted Beijing Treaty and concludes that its moral rights provisions are somewhat limited.
The Devil is in the Footnotes: Moral Rights in the Beijing Treaty on Audiovisual Performances
With the recent adoption of the Beijing Treaty on Audiovisual Performances, WIPO has closed a loophole in the protection of performances that was left open by its previous, landmark treaty on performers’ rights, the WIPO Performances and Phonograms Treaty of 1996 (WPPT, entered into force in 2002). In the negotiations for the WPPT, moral rights contributed to the general difficulties of achieving a viable compromise on audiovisual performances and, accordingly, the scope of the WPPT was restricted to audio, or “aural,” performances only. In this context, the WPPT established moral rights for performers for the first time in international copyright law. Its provisions are closely modeled on the moral rights provisions in Article 6bis of the Berne Convention – generally, mutatis mutandis, although the concept of “honor,” which is part of the Berne formula for the integrity right, is specifically excluded from the WPPT.

In keeping with the international trend towards broader recognition for moral rights, Article 5 of the Beijing Treaty now extends them to performers in the audiovisual context. Two interesting issues arise. First, what is the true extent of moral rights protection for audiovisual performers in this treaty–and, accordingly, what kinds of special efforts at moral rights protection, if any, will it demand of WIPO member states? Secondly, the new treaty represents the recognition of moral rights in yet another instrument of international copyright law that will require implementation in the United States. The U.S. played a crucial role in the Beijing negotiations, but it remains the one major jurisdiction without any general protection for moral rights in its copyright law (a specialized regime for the moral rights of visual artists exists at the federal level: the Visual Artists Rights Act of 1990, available here. In addition, a number of states have legislation related to moral rights). How will the U.S. movie industry and, ultimately, the U.S. government, respond?

At first glance, the text of Article 5 appears to be a new set of variations on a long familiar theme. The model of moral rights protection that it puts forward for audiovisual performances is largely derived from Article 5 of the WPPT and, through it, Article 6bis of the Berne Convention. As in both earlier versions, the Beijing agreement offers protection to the two basic moral rights of attribution and integrity. The new treaty also keeps the theory behind moral rights more or less intact. Moral rights for audiovisual performers continue to be “independent” of economic rights – and thereby, insulated from the potential consequences of alienating economic rights – and they must be protected “at least until the expiry of the economic rights.” In addition, the Beijing provision on duration follows the WPPT and Berne by including the usual caveat that, in those jurisdictions which will be introducing protection for performers’ moral rights after the death of the performer as a result of the new treaty, “some” but not “all” of these rights may cease to be protected at the time of the performer’s death. This provision was originally a way of allowing moral rights to be protected through the existing legal framework in common-law countries, including tort. It is worth noting that the continued validity of this concept in the United States, which is rapidly evolving away from the notion of “alternative” forms of protection for moral rights, may be questionable.

But, in other respects, the Beijing Treaty goes on to strike a new path. A closer look at the language framing the new moral rights shows that they are subject to numerous qualifications and limitations. In particular, the recognition of the performer’s moral right of integrity is so extensively circumscribed by the terms of the “Agreed Statement” set out in a footnote to Article 5, that the extent to which integrity is protected at all is questionable (for example, Dastar has limited the protection of moral rights through s.43(a) of the Lanham act, on false advertising: Dastar Corp. v Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), available here).

In itself, the idea of modifying moral rights to reflect the needs of a particular medium is not unusual, and it need not be philosophically troublesome. Various examples may be found in national legislation, where the protection of moral rights is modified according to the type of work concerned. The moral rights of computer programmers are limited in France (CPI (n 2), Article L121-7(1), here), while special provisions often relate to works of visual art, such as the idea that improper conditions of display could violate the artist’s moral rights, recognized in Australia (Copyright Act 1968, s. 195AK(b), here) and India (Copyright Act 1957, s. 57 Explanation, here).

The treatment of moral rights in the Beijing Treaty takes this concept to a new level. According to Beijing’s Article 5, the right of integrity must be interpreted in the light of “the nature of audiovisual fixations” and, perhaps a key point in the subsequent explanations, “their production and distribution.” The provision starts innocuously enough, providing that changes made “in the normal course of exploitation of the performance” will not violate the integrity right. In fact, a similar principle has already been articulated by the German Supreme Court in relation to the use of music for mobile ringtones, where it found that the mere conversion of music to ringtones will not amount to a violation of the creator’s moral rights (Decision of the German Bundesgerichtshof (Supreme Court) of 18 December 2008, I ZR 23/06). The precedent that the German court established is important in the technological context, because, clearly, converting music to ringtones will “necessar[ily]” involve changes, including possible technical editing and the need to create excerpts. Indeed, the very nature of a ringtone ensures that the music will be arbitrarily cut into excerpts by the user when he or she answers a call.

But the Beijing Treaty goes on to list detailed examples of what will be considered “ the normal course of exploitation”– “such as editing, compression, dubbing, or formatting”–and to include the treatment of the work “in existing or new media or formats” and any dealings with the performance “that are made in the course of a use authorized by the performer.” This seems like an incredibly comprehensive list of exclusions from the moral right of integrity. Read in conjunction with the provision that the limitations apply to virtually all media or formats, whether “existing or new,” it seems that almost anything would qualify as “a use authorized by the performer” in the audiovisual context. The identification of specific activities seems to address virtually every kind of treatment to which a performance could be subject in the audiovisual context– “editing, compression, dubbing, or formatting.” Is there any way of manipulating a performance for use in the audiovisual context that is not covered by these four words? If there were, the four activities noted here are framed as a non-exhaustive list, and any treatment of the work that could be read ejusdem generis would arguably fall within the definition of “normal... exploitation.”

The commitment to moral rights for performances in the Beijing Treaty is, at the very least, a severely restricted form of recognition for these rights. Attribution is generally allowed, although the attribution right, too, is limited in scope – the performer may forfeit his or her right to be identified “where omission is dictated by the manner of the use of the performance.” Where the right of integrity is concerned, given the range of limitations imposed by the explanatory note, it is questionable whether performers in audiovisual works can expect to assert their moral rights at all. In the final analysis, the Beijing treaty makes a nod to moral rights without, however, taking many real steps to endorse them. Accordingly, as far as the United States is concerned, it will not have to do much to honor the limited obligations undertaken at Beijing. Even a restatement of the Beijing provisions on moral rights in U.S. law would probably have little impact on U.S. copyright law or practice.


Andy J said...

As with her earlier posts, Dr Rajan raises the issue of moral rights as if they should be both mandatory and universally applied, but without any practical argument about why this is necessary or desirable.
Surely the provisions of Article 5 of the Beijing Treaty are just a pragmatic reflection of the real world. The performer's moral right to integrity cannot be absolute; it is and must be subject to the production process involved in recording the performance, starting with, in the case of a movie actor, the wishes of the director and subsequently the editor, not to mention the commercial decisions of the producers etc. Taking that a step further, when the film is released in another language, dubbing may be essential for commercial reasons, and later when the film is shown on TV, additional editing for decency or length may be necessary. And if the director or film company release the film on DVD, should it be possible for the performer to veto the director's cut or the outtakes which often feature on such disks? How can the performer realistically have the right to object to these post-performance changes which might necessarily alter or even remove their performance as originally recorded? And it is worth bearing in mind that performer in this context could just be an extra or small-part player. Clearly the more prominent the performer, the greater influence they will have (usually through their contract) to protect the integrity of their performance, but even that will be limited to some extent.
What about the recording of an orchestral piece? It is fairly standard practice to record more than one performance, and then to digitally meld two or more recordings together to achieve the very best overall recording. Should an individual member of the orchestra have the absolute right to say which of his two renditions of the piece should be used in the final version, even though the record producer wants a different one for good aesthetic reasons?
As for what the US will bring in to law following ratification of the Treaty, I suggest it will be as little or as much as movie and record industries deem acceptable, given their considerable influence in Congress. Since the US has yet to reflect Article 6 bis of the Berne Convention in their legislation, despite acceding to the Convention in 1989, I won't be holding my breath in anticipation.

john walker said...

A individual economic right that can not be traded is not an economic right.

Mira Sundararajan said...

Andy, nothing I have ever written has suggested that
moral rights should be "both mandatory and
universally applied." If things were so simple, I don't
think this subject would be worth examining in a
book-length study (or indeed, in 4 of them, as at
least 4 books on moral rights, by different authors,
have been published in recent years). There are so
many issues to consider - what subject-matter
should attract moral rights, which rights, for what
duration, with or without waiver, who should be able
to claim, what needs to be proven and by whom,
international or national protection, the applicability
of torts, collaborative creation... This post, in
particular, doesn't claim anything like what you
assert. What it says is that the footnote to Article 5
of the Beijing Treaty renders the Article itself largely
devoid of substantive content. I don't see anything in
your comments that suggests otherwise. Your
opinion simply seems to be that moral rights should
NOT be protected in stronger language, and I
suppose that means that you agree with the Beijing
approach - some observers will, others won't. In any
case, most of the examples that you've cited, such
as dubbing, would almost certainly NOT qualify as a
violation of moral rights in any jurisdiction. In
France, for example, it has long been standard
practice for films and TV programs to be dubbed.
The question of what a director can do with a
performance may involve balancing the moral rights
of both (if the moral rights of performers are going
to be recognized at all), and French law already
outlines a scheme that tries to address the potential
problem of conflict between multiple contributors to
a film.