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New Treaty Strengthens Performers' Rights No. 4 – AUGUST – 2012 NEW TREATY STRENGTHENS PERFORMERS’ RIGHTS p.2 | THE ART OF VIDEO GAMES p.10 | GLOBAL InnOVATION InDEX 2012 p.32 WIPO | MAGAZINE No. 4 | August | 2012 CONTENTS Editor: Catherine Jewell p.2 New treaty strengthens performers’ rights Graphic Designer: Annick Demierre Cover image: © WIPO 2012 p.8 Managing performers’ rights: the role of contracts Acknowledgements: p.2: Michele Woods p.8: Victor Vazquez-Lopez st p.10 Video games: 21 century art p.10 & p.15: Paolo Lanteri p.19: Carlos Castro p.22: Matthew Bryan p.32: Sacha Wunsch-Vincent p.15 Guaranteeing access to knowledge: the role of libraries p.19 Navigating US copyright termination rights p.22 Pay-as-you-go solar power p.25 A glimpse into the future of paralympic sports p.31 The evolving domain name landscape p.32 Global Innovation Index 2012 © World Intellectual Property Organization p. 2 2012 | 4 WIPO | MAGAZINE p. 3 NEW TREATY strengthens performers’ rights p. 4 2012 | 4 For the first time in over 60 years, the intellectual prop- erty (IP) rights of actors and other audiovisual per- formers have been expanded and comprehensively recognized in international copyright law. A new treaty concluded in Beijing on June 26, 2012, will strengthen the economic and moral rights of performers in their audiovisual performances. The Beijing Treaty on Audio- visual Performances – so named in honor of the city hosting the final negotiations – will enter into force upon ratification by 30 eligible parties, including countries and certain intergovernmental organizations. WIPO Magazine considers what this new treaty, over 15 years in the making, means to performers around the world. Photo: WIPO/ XU Zhen, 2012 Impact of THE BEijiNG TREatY The Beijing Treaty on Audiovisual Performances will strengthen the precarious position of many struggling film actors and other performers by providing a clearer international legal framework for their protection. It will give performers stronger economic rights and valuable extra income. Exactly how much will depend on how the treaty is put into national legislation and implement- ed in practice. The Treaty provides a legal framework setting an expectation that countries that become party to it will pay for the use of foreign audiovisual performances, and encourage some or all of that revenue to go to the performers involved, the Photo: WIPO/Yuan Wenming, 2012 vast majority of whom earn very little. For example, this could mean that when a film is reproduced, sold, rented or broadcast in a foreign country, some money would go to the country of origin and can then be shared with performers. “In the same way that writers and composers depend upon royalty income for their survival in the long term, performers around the world must benefit as well from the income from the exploitation of their works,” explained Academy Award-winning actress Meryl Streep in the lead-up to the Diplomatic Conference. The Beijing Treaty will also provide performers with protection in the digital environment, giving them some measure of control over how and when their works – their films and videos – are Photo: WIPO/Yuan Wenming, 2012 used on the Internet. “This is a pivotal time in the performers’ battle for IP protection, because of the increased variety and use of digital technology that makes producing, manipulating and disseminating an artist’s work so easy,” Ms. Streep observed. WIPO Director General Francis Gurry says that the Beijing Treaty is both a The career and livelihood of actors “depend on the control of triumph for audiovisual performers and a victory for multilateralism. our performances and our image and likeness. Sadly, many actors do not have control of their performances and do not Mr. Liu Qi, Member of the Political Bureau have the right to fair and equitable compensation for the use of of the Central Committee of the Communist Party of China (CPC) and the Secretary of the their faces, bodies and voices,” said Segun Arinze, President CPC Beijing Municipal Committee, described of the Actors Guild of Nigeria. In many countries the Treaty will the Treaty as the pride of Beijing. ”Respect mean that the performances of actors in audiovisual works for IP is a must,” he said . “We will grasp this opportunity to further strengthen intellectual such as movies, television programs and pop music videos property and build Beijing as the first city of IP.” will be protected for the very first time. China State Counselor Liu Yandong reaffirms the Chinese Government’s commitment to IP protection. WIPO | MAGAZINE p. 5 performers are not second-class citizens. Along with audio How a treaty enters into force performers, producers and authors, we are now recognized as having economic and moral rights over the content that we perform in,” said Australian actor Simon Burke. “It’s crazy that A treaty enters into force upon ratification by a prescribed it hasn’t happened before, but it’s just so, so important that it number of eligible parties. Countries often sign a treaty upon has happened now,” he added. “It is something that is so right, its adoption. This constitutes a preliminary endorsement so just and it’s finally coming true.” and demonstrates a country’s intent to examine the treaty domestically with a view to ratifying it. Signing a treaty, “Actors all over the world will be actually able to keep on work- however, does not create a binding legal obligation to ratify it. ing and be protected when they work,” said Agnete Haaland, Norwegian actress and President of the International Federation Ratification or accession by a state signifies its agreement of Actors (FIA). “We have been working for this for more than to be legally bound by the terms of the treaty. Although 20 years… to make it possible for actors to keep on acting accession has the same legal effect as ratification, the and for the audience to actually have the privilege of seeing all procedures differ. In the case of ratification, the state kinds of films… all kinds of audiovisual content,” noted Benoît first signs and then ratifies the treaty. The procedure for Machuel, cellist and representative of the International Federa- accession involves a single step and is not preceded by an act tion of Musicians. of signature. Countries that have signed a treaty generally ratify it when their domestically required legal procedures “This is a very exciting moment, I think, for actors around the have been fulfilled. Other states may begin the domestic world,” said Jean Rogers, Vice President of the British actors’ approval process and accede to the treaty once their union, Equity. “This treaty will actually put on record how im- domestic procedures have been completed without having portant our role is,” she said. “We interpret what people write. first signed the treaty. Writers have had these intellectual property rights, but audio- visual performers have not. But now, the future is starting to “Digital technology and the Internet offer the promise of a global open up for us,” she said “and the value of performers is now audience and the unprecedented availability of creative works. being recognized.” At the same time, they make creative works increasingly vulner- able to unfair exploitation,” explained WIPO Director General Chilean actress and representative of LatinArtis, Esperanza Francis Gurry. “The Beijing Treaty will enable performers to Silva, urged governments to implement the treaty as soon interact with greater confidence with the digital environment,” as possible, because “this treaty is going to benefit not only he said. performers but the world’s culture in general.” In addition to enhanced economic rights, the Beijing Treaty A victoRY foR MUltilatERalism grants performers moral rights to prevent lack of attribution for or distortion of their performances. Actors and other audiovisual Not only does the conclusion of the Beijing Treaty represent a performers will also enjoy a minimum term of 50 years of protec- triumph for actors and other audiovisual performers, it is also a tion compared to the 20-year term previously available under victory for multilateralism. “It is an affirmation of the relevance the 1961 Rome Convention for the Protection of Performers, of multilateralism in general, and of multilateral rule-making Producers of Phonograms and Broadcasting Organizations in the field of intellectual property in particular,” Mr. Gurry (the Rome Convention). said. This sentiment was echoed by delegations taking part in the discussions. “I have been impressed in listening to the The Treaty effectively brings the rights of actors and performers concluding statements by the number of delegations who into line with those available to musicians and recording artists have underlined the importance of the Beijing Treaty and this under the WIPO Performances and Phonograms Treaty (WPPT) diplomatic conference for multilateralism,” Mr. Gurry said in his concluded in 1996. “The conclusion of the Beijing Treaty is an closing remarks. “This is a great development for intellectual important milestone toward closing the gap in the international property. It will help us to deal with our ongoing normative rights system for audiovisual performers,” Mr. Gurry said. “The agenda at WIPO in the spirit that has developed at this confer- international copyright framework will no longer discriminate ence in Beijing,” he added. against one set of performers.” As hosts of the Diplomatic Conference to conclude the Beijing Treaty on Audiovisual Performances, the Chinese authorities ActoRS WElcomE A laNdmaRK victoRY underlined the importance that China attaches to IP. “The For many actors around the world who have been driving Chinese Government has a very clear attitude and strong posi- the process, the conclusion of the Beijing Treaty is a historic tion on the protection of IP,” said China State Counselor Liu landmark and an important turning point.
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