Russia signs up for Beijing Treaty

According to the recently-published Beijing Notification No. 10 Beijing Treaty on Audiovisual Performances: Accession by the Russian Federation (you can click through to the original here), the Russian Federation has committed itself to the WIPO-administered Treaty.

Russia's move brings to 10 the number of countries that have either ratified or acceded to the Beijing Treaty (you can check the current list here). This means that one-third of the number of participants necessary to bring the Treaty into force has now been notched up.

United Arab Emirates sign up for more copyright treaties

The United Arab Emirates have been busily upgrading their copyright commitments. Only a couple of months ago we reported that the UAE had renewed its Berne Convention relaxations (here). But now the Emirates have opted to sign up for WIPO's two most recent international copyright treaties.

First, by Beijing Notification No. 6 we are informed that the UAE has deposited its instrument of accession to the Beijing Treaty on Audiovisual Performances (the date of entry into force of this Treaty remains unknown but will be notified when the required number of ratifications or accessions is reached in accordance with Article 26 of that Treaty). Further, by Marrakesh Notification No. 3 we learn that a similar commitment has been made with regard to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled -- the commencement date for which is also uncertain, depending on receipt of the required number of ratifications or accessions under with Article 18 of that Treaty.

Beijing signs up for ... Beijing

This blogger was pleased to see, by Beijing Notification No. 5: Beijing Treaty on Audiovisual Performances, that the People’s Republic of China has ratified this treaty. According to this notice:

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify the deposit by the Government of the People’s Republic of China, on July 9, 2014, of its instrument of ratification of the Beijing Treaty on Audiovisual Performances, adopted at Beijing on June 24, 2012.

The said instrument contained the following declarations:

– “The People’s Republic of China shall not be bound by Article 11(1) [bad news for performers: "Performers shall enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations"] and (2) [ditto: "Contracting Parties may ... declare that, instead of the right of authorization provided for in paragraph (1), they will establish a right to equitable remuneration for the direct or indirect use of performances fixed in audiovisual fixations for broadcasting or for communication to the public. Contracting Parties may also declare that they will set conditions in their legislation for the exercise of the right to equitable remuneration"] of the Beijing Treaty on Audiovisual Performances.

– “The Beijing Treaty on Audiovisual Performances shall not apply for the time being to the Hong Kong Special Administrative Region of the People’s Republic of China until otherwise notified by the Government of the People’s Republic of China.”

The date of entry into force of the said Treaty will be notified when the required number of ratifications or accessions is reached in accordance with Article 26 of the said Treaty.

China joins Syria, Botswana, the Slovak Republic and Japan, but there's still some way to go before the treaty comes into force. as Article 26 states:

This Treaty shall enter into force three months after 30 eligible parties referred to in Article 23 have deposited their instruments of ratification or accession.

Japan nods to Beijing, opts for right to equitable remuneration

Things are bouncing in Beijing! By Beijing Notification No. 4 Beijing Treaty on Audiovisual Performances the World Intellectual Property Organization notifies us of the deposit by the Government of Japan, exactly a fortnight ago, of its instrument of accession to the Beijing Treaty on Audiovisual Performances. However, it's not a straightforward matter. Japan's instrument of accession contains the following declarations:

"Pursuant to Article 11, paragraph 2 of the Treaty, the Government of Japan will establish a right to equitable remuneration, instead of the right of authorization provided for in Article 11, paragraph (1) of the Treaty, for the broadcasting of a performance done in accordance with Article 94 of the copyright law of Japan by:

(a) a broadcasting organization, using the audiovisual fixation that it made for the broadcasting under the authorization of the person entitled to the right to broadcast the performance in accordance with Article 93, paragraph 1 of the copyright law of Japan;

(b) a person to whom the broadcasting organization referred to in (a) provided the audiovisual fixations referred to in (a), using those audiovisual fixations; or

(c) a person to whom the broadcasting organization referred to in (a) otherwise supplied a broadcasting program pertaining to the authorization referred to in (a), using that broadcasting program."

- "Pursuant to Article 11, paragraph 2 of the Treaty, the Government of Japan will establish a right to equitable remuneration, instead of the right of authorization provided for in Article 11, paragraph (1) of the Treaty, for the simultaneous cablecasting of a broadcast performance and for the "automatic public transmission of unfixed information" made in order that a broadcast performance be received simultaneously with the original broadcasting exclusively in the broadcasting service area (as defined in Article 34, paragraph 1 of the copyright law of Japan) pertaining to the original broadcasting."

For the purposes of this declaration, "automatic public transmission of unfixed information" shall mean transmission by means of inputting information into an automatic public transmission server (as defined in Article 2, paragraph 1, subparagraph 9 quinquies, i, of the copyright law of Japan) already connected with a telecommunication line that is provided for use by the public, which is carried out automatically in response to a request from the public and which is intended for direct receipt by the public.

- "Pursuant to Article 11, paragraph 3 of the Treaty, the Government of Japan will not apply the provisions of Article 11 paragraphs (1) and (2) of the Treaty to the communication to the public of a performance fixed in audiovisual fixations done by means other than cablecasting or "automatic public transmission of unfixed information"."

The date of entry into force of the Treaty will be notified when the required number of ratifications or accessions is reached in accordance with Article 26. Meanwhile Japan joins the three countries that have already committed themselves to the Treaty: Botswana, the Slovak Republic and Syria.

What do the Slovaks, the Syrians and the Batswana have in common?

Here's another media release -- this time relating to one of WIPO's recent successes, the Beijing Treaty on Audiovisual Performances. According to Beijing Notification No. 3: Beijing Treaty on Audiovisual Performances,

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify the deposit by the Government of the Slovak Republic, on May 22, 2014, of its instrument of accession to the Beijing Treaty on Audiovisual Performances, adopted at Beijing on June 24, 2012.

The said instrument of accession contains the following declaration: "In accordance with Article 11, paragraph 2 of the Treaty the Slovak Republic declares that it has set conditions in its legislation for the exercise of the right to equitable remuneration." ...

Things are going a bit slowly for the Beijing Treaty so far. While Article 26 requires the ratification or accession of 30 signatory states, plus a pause of three months, before it comes into force, the Slovak Republic is only the third country to commit itself, along with unlikely bedfellows Botswana and Syria.

Botswana joins Syria in Beijing sign-up

The Beijing Treaty on Audiovisual Performances is not, it seems, everyone's favourite treaty.  Since it came into existence a year and a half ago, it has been ratified by just two countries: first Syria and now, according to a World Intellectual Property Organization (WIPO) media release, Botswana.   The African republic deposited its instrument of ratification on 20 November, but the Treaty, under Article 26, will not come into force until three months after it enjoys ratification or accession from 30 eligible parties [is the criterion of 'eligible parties' there in order to exclude the International Olympic Committee and FIFA, which act like autonomous countries in their own right and probably enjoy more income than quite a few nations ...].

Bulgaria heads for Beijing

The 1709 Blog doesn't often get a chance to pick up a scoop, but here's some hot news from Bulgaria, courtesy of this blogger's friend, the excellent Ventsi Stoilov, all the way from Sofia.  He writes:

The Council of Ministers of the Republic of Bulgaria decided on Wednesday 21 November 2012  upon accession to the WIPO Beijing Treaty on Audiovisual Performances.

The official ratification of the Treaty is forthcoming.  More information can be found here (in Bulgarian)".

Thanks, Ventsi!

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.

Cheer for China as performers take the limelight

Something for performers to make
a song and dance about?

This weblog has received in the past year or so a veritable barrage of emails from readers, drawn from the community of performers, along the lines of "what about us, then? Why are we always being so taken for granted and neglected?" Well, here's something to cheer them up.  Today the World Intellectual Property Organization (WIPO) has issued a media release that breaks the [rather expected] news of a new international treaty that is addressed specifically at the needs  -- or at least at the perceived needs -- of the performers.  According to document PR/2012/714:

"The diplomatic conference to finalize a new treaty for audiovisual performers was successfully concluded on June 26, 2012 as negotiators from WIPO’s member states signed the Beijing Treaty on Audiovisual Performances– so-named in recognition of the city that hosted the final round of negotiations. The new treaty brings audiovisual performers into the fold of the international copyright framework in a comprehensive way, for the first time. ...

The President’s gavel brought an end to over 12 years of negotiations held under WIPO auspices. Mr. Gurry hailed this major development in the history of international copyright as a success of the multilateral system. “The conclusion of the Beijing Treaty is an important milestone toward closing the gap in the international rights system for audiovisual performers and reflects the collaborative nature of the multilateral process,” Mr. Gurry said. He noted that “the international copyright framework will no longer discriminate against one set of performers.”

... The Diplomatic Conference was attended by 156 member states, 6 intergovernmental organizations and 45 non-governmental organizations. This is the highest level of participation ever at a WIPO Diplomatic Conference. 122 countries signed the Final Act of the treaty, and 48 countries have signed the treaty itself.

... The treaty will enter into force once it has been ratified by 30 eligible parties, including countries or certain intergovernmental organizations.

... Most commonly, countries that support a treaty sign shortly after it has been adopted. They then ratify the treaty when all of their domestically required legal procedures have been fulfilled. Other states may begin with the domestic approval process and accede to the treaty once their domestic procedures have been completed, without signing the treaty first".

The 1709 Blog can tell you that the Beijing Treaty -- which you can read in full here -- consists of 30 Articles. The blog is sure it will be carrying some commentary once the text has been read and digested.