Beijing Treaty on Audiovisual Performances Soon to Enter into Force

Following its ratification by Indonesia, the 30th Contracting Party, the Beijing Treaty on Audiovisual Performances (the “Treaty”) will enter into force on April 28, 2020.

The Treaty was adopted on June 24, 2012, during the Diplomatic Conference held in Beijing on June 20-26 of that year, and its approval ended over 12 years of negotiations at the headquarters of the World Intellectual Property Organization (“WIPO”). The Diplomatic Conference was attended by 156 member States of that organization, as well as 6 inter-governmental organizations and 45 non-governmental organizations. The Treaty was signed by 48 countries including Spain, although Spain has yet to ratify it.

The purpose of the Treaty is to develop and maintain the protection of the rights of performing artists with respect to audiovisual versions of their performances, in the most effective and uniform manner possible.

In pursuit of that goal, the Treaty regulates for the first time the protection of artists and performers in the digital environment, updating the protection established under the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (adopted on October 26, 1961).

The Treaty grants four types of economic rights to artists and performers in relation to performances fixed on audiovisual media (e.g., films): (i) the right of reproduction; (ii) the right of distribution; (iii) the right of rental; and (iv) the right of making available. In the case of non-fixed (live) performances, the Treaty regulates three types of economic rights: (i) the right of broadcasting, except for rebroadcasting; (ii) the right of communication to the public, except where the performance is a broadcast performance; and (iii) the right of fixation.

The Treaty also strengthens the moral rights of artists, by recognizing (i) the right to be identified as the artist or performer, except where omission is dictated by how the performance is used; and (ii) the right to object to any distortion or other modification that may be harmful to the performer’s honor or reputation.

With regard to the transfer of rights, the Treaty establishes that Contracting Parties may stipulate in their own legislation that once an artist or performer has consented to the audiovisual fixation of a performance, the exclusive rights associated with that recording are presumed transferred to the audiovisual producer, unless it has been agreed otherwise. Independent of such a transfer of rights, the artist or performer may be granted the right to receive royalties or equitable remuneration for any use of the performance.

The Treaty also establishes a term of protection of the rights of at least 50 years.

Each Contracting Party agreeing to the Treaty assumes the commitment to adopt, in accordance with its own legal system, the measures necessary to guarantee application of the Treaty. In particular, they must ensure that enforcement procedures are available against any infringement of rights covered by the Treaty, in both the national and international contexts.

Although this is undoubtedly good news for the situation of artists and performers in relation to their works in the audiovisual industry, and for cultural diversity in general, the Treaty is not expected to have much impact on the domestic scenario for the time being, since neither Spain nor any countries in the European Union, nor the European Union itself, nor the United States (which did not sign the Rome Convention) have ratified the Treaty.