Creative control over one’s artistic endeavor is an important right that an artist strives to retain. In addition to creative control, artists seek to prevent the unlawful distribution of the creative product, insist on being acknowledged as the creator of the work, and aim to achieve adequate compensation for the creation. Through union organization, treaties and national legislation, countries have tried to ensure that these rights, and others, are protected for those men and women whose talents have enlightened, challenged, and entertained us for centuries.
Technological developments have given rise to increased modes of distributing creative content, thus allowing purveyors of art to access creative works from almost anywhere in the world. For example, one could view the latest installment at the Harare Arts Theater from the comfort of one’s home in Geneva, Switzerland. This increased exposure has expanded the artist’s potential audience and has created additional sources of revenue. However, with technological innovation and increased exposure have come numerous logistical and legal problems for artists, utilitarian proponents and the natural rights regime legislators who scramble to keep the law in step with the rapidly changing society. In an attempt to cope with these changes, the World Intellectual Property Organization’s Performances and Phonograms Treaty (WPPT) was adopted in 1996.
The Adoption of the WPPT
With the adoption of the WPPT, musicians, songwriters and audio performers witnessed the enactment of legislation that granted them enhanced protection and control over their contributions to sound recordings, plays, motion pictures and other works that use music. Uniform standards concerning the definition of authorship, length of ownership and control over the distribution, licensing and duplication of copyrightable content were set forth in this treaty and adopted by the contracting nations.
However, one group of artists was conspicuously excluded from the scope of the WPPT’s protection. The WPPT failed to outline a method for harmonizing legislation that would ensure protection of the rights of audiovisual performers in their contributions to audiovisual fixations. Consensus could not be reached on the manner and scope of protection to be granted to actors. These differences led the WIPO Member States to abandon their hopes of including audiovisual performers within the WPPT.
At the close of the 1996 diplomatic conference for the adoption of the WPPT in Geneva, WIPO members passed a resolution that called for member states to reconvene at a later date to negotiate a treaty that would address audiovisual performer’s rights. In the months leading up to the review of the proposed treaty, Member States were at odds over how the following issues should be addressed within the international accord: (1) national treatment; (2) the scope of protection that should be afforded to performers for the public broadcast of their works; (3) transfer of rights; and (4) the question of moral rights.
The Failed 2000 Diplomatic Conference
After much debate, negotiators from over 120 nations met in December of 2000 at the Diplomatic Conference on the Protection of Audiovisual Performances. Agreement was reached on nineteen of the twenty proposed Articles that would comprise the treaty. Consensus could not be reached on an appropriate manner with which audiovisual performers would transfer their rights to producers so as to allow producers greater ease in administering and licensing rights to the audiovisual production.
However, after 11 years of intense negotiations amongst the various delegations, Member States were able to reach agreement on the outstanding article 12 of the Treaty, regarding transfer of rights. The article provides that any transfer of exclusive fixation rights of authorization to the producer shall be done with the consent of the performer and subject to signing of contract between the performer and producer, as determined in their national law. As such, in 2011, the WIPO General Assembly approved the reconvening of a Diplomatic Conference for the protection of Audiovisual Performances.
The potential benefits of an audiovisual performances treaty are numerous. Producers, audiovisual performers and broadcasters across the globe would benefit from a uniform set of laws that would provide audiovisual performers increased financial rewards and creative control, while affording producers, consumers and others a clearer understanding of what they can and cannot do with audiovisual fixations.
Registration for the Diplomatic Conference
In view of the above, the Diplomatic Conference will take place in Beijing, China from the 20-26 of June 2012 (Venue will be communicated shortly on the website). Member States are invited to register online by March 20, 2012 at: www.wipo.int/dc2012 (secure code: DC12C01).
WIPO Diplomatic Conference on the Protection of Audio Visual Perfomances Slated for June 2012 in Beijing.