[A2k] Final Version of Beijing Treaty on Audiovisual Performances

Alfredo Scafati alfredoscafati at hotmail.com
Tue Jun 26 02:34:58 PDT 2012



 
  
   
  
  
  
  
  
  E
  
 
 
  
  avp/DC/20   
  
 
 
  
  ORIGINAL:  English
  
 
 
  
  DATE:  June 24, 2012
  
 


 

 

 

 

 

Diplomatic Conference on the Protection of 

Audiovisual Performances

 

 

 

Beijing,
June 20 to 26, 2012

 

 

 

 

Beijing
treaty on audiovisual performances

 

adopted by the Diplomatic Conference on June 24, 2012

 

 

 




 

Beijing Treaty on Audiovisual
Performances

 

 

CONTENTS

 

Preamble

 

Article
1:         Relation to Other Conventions
and Treaties

 

Article
2:         Definitions

 

Article
3:         Beneficiaries of Protection

 

Article
4:         National Treatment

 

Article
5:         Moral Rights

 

Article
6:         Economic Rights of Performers
in their Unfixed Performances

 

Article
7:         Right of Reproduction

 

Article
8:         Right of Distribution

 

Article
9:         Right of Rental

 

Article
10:       Right of Making Available of
Fixed Performances

 

Article
11:       Right of Broadcasting and
Communication to the Public

 

Article
12:       Transfer of Rights

 

Article
13:       Limitations and Exceptions

 

Article
14:       Term of Protection

 

Article
15:       Obligations concerning
Technological Measures

 

Article
16:       Obligations concerning Rights
Management Information

 

Article
17:       Formalities

 

Article
18:       Reservations and Notifications

 

Article
19:       Application in Time 

 

Article
20:       Provisions on Enforcement of
Rights

 

Article
21:       Assembly

 

Article
22:       International Bureau

 

Article
23:       Eligibility for Becoming Party
to the Treaty

 

Article
24:       Rights and Obligations under the
Treaty

 

Article
25:       Signature of the Treaty

 

Article
26:       Entry into Force of the Treaty

 

Article
27:       Effective Date of Becoming Party
to the Treaty

 

Article
28:       Denunciation of the Treaty

 

Article
29:       Languages of the Treaty

 

Article
30:       Depositary




 

Preamble

 

The
Contracting Parties,

 

Desiring
to develop and maintain the protection of the rights of performers in their
audiovisual performances in a manner as effective and uniform as possible,

 

Recalling
the importance of the Development Agenda recommendations, adopted in 2007 by
the General Assembly of the Convention Establishing the World Intellectual
Property Organization (WIPO), which aim to ensure that development
considerations form an integral part of the Organization’s work,

 

Recognizing
the need to introduce new international rules in order to provide adequate
solutions to the questions raised by economic, social, cultural and
technological developments,

 

Recognizing
the profound impact of the development and convergence of information and
communication technologies on the production and use of audiovisual
performances,

 

Recognizing
the need to maintain a balance between the rights of performers in their
audiovisual performances and the larger public interest, particularly
education, research and access to information,

 

Recognizing
that the WIPO Performances and Phonograms Treaty (WPPT) done in Geneva on December 20,
1996, does not extend protection to performers in respect of their performances
fixed in audiovisual fixations,

 

Referring
to the Resolution concerning Audiovisual Performances adopted by the Diplomatic
Conference on Certain Copyright and Neighboring Rights Questions on December
20, 1996, 

 

Have
agreed as follows:

 

 

Article 1

Relation
to Other Conventions and Treaties

 

(1)       Nothing in this Treaty shall derogate
from existing obligations that Contracting Parties have to each other under the
WPPT or the International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations done in Rome on October 26, 1961.

 

(2)       Protection granted under this Treaty
shall leave intact and shall in no way affect the protection of copyright in
literary and artistic works.  Consequently, no provision of this Treaty may
be interpreted as prejudicing such protection.

 

(3)       This Treaty shall not have any connection
with treaties other than the WPPT, nor shall it prejudice any rights and
obligations under any other treaties[1],[2].

 

 

Article 2

Definitions

 

For the purposes
of this Treaty:

 

(a)       “performers” are actors, singers,
musicians, dancers, and other persons who act, sing, deliver, declaim, play in,
interpret, or otherwise perform literary or artistic works or expressions of
folklore[3];

 

(b)       “audiovisual fixation” means the
embodiment of moving images, whether or not accompanied by sounds or by the
representations thereof, from which they can be perceived, reproduced or
communicated through a device[4];


 

(c)       “broadcasting” means the transmission by
wireless means for public reception of sounds or of images or of images and
sounds or of the representations thereof; 
such transmission by satellite is also “broadcasting”;  transmission of encrypted signals is
“broadcasting” where the means for decrypting are provided to the public by the
broadcasting organization or with its consent;

 

(d)       “communication to the public” of a
performance means the transmission to the public by any medium, otherwise than
by broadcasting, of an unfixed performance, or of a performance fixed in an
audiovisual fixation.  For the purposes
of Article 11, “communication to the public” includes making a performance
fixed in an audiovisual fixation audible or visible or audible and visible to
the public.

 

 

Article 3

Beneficiaries
of Protection

 

(1)       Contracting Parties shall accord the
protection granted under this Treaty to performers who are nationals of other
Contracting Parties.

 

(2)       Performers who are not nationals of one
of the Contracting Parties but who have their habitual residence in one of them
shall, for the purposes of this Treaty, be assimilated to nationals of that
Contracting Party.

 

 

Article 4

National
Treatment

 

(1)       Each Contracting Party shall accord to
nationals of other Contracting Parties the treatment it accords to its own
nationals with regard to the exclusive rights specifically granted in this
Treaty and the right to equitable remuneration provided for in Article 11 of
this Treaty. 

 

(2)       A Contracting Party shall be entitled to
limit the extent and term of the protection accorded to nationals of another
Contracting Party under paragraph (1), with respect to the rights granted in
Article 11(1) and 11(2) of this Treaty, to those rights that its own nationals
enjoy in that other Contracting Party.

 

(3)       The obligation provided for in paragraph
(1) does not apply to a Contracting Party to the extent that another
Contracting Party makes use of the reservations permitted by Article 11(3) of
this Treaty, nor does it apply to a Contracting Party, to the extent that it
has made such reservation.

 

 

Article 5

Moral
Rights

 

(1)       Independently of a performer’s economic
rights, and even after the transfer of those rights, the performer shall, as
regards his live performances or performances fixed in audiovisual fixations,
have the right:

 

(i)           to
claim to be identified as the performer of his performances, except where
omission is dictated by the manner of the use of the performance;  and

 

(ii)          to
object to any distortion, mutilation or other modification of his performances
that would be prejudicial to his reputation, taking due account of the nature
of audiovisual fixations.

 

(2)       The rights granted to a performer in
accordance with paragraph (1) shall, after his death, be maintained, at least
until the expiry of the economic rights, and shall be exercisable by the
persons or institutions authorized by the legislation of the Contracting Party
where protection is claimed.  However,
those Contracting Parties whose legislation, at the moment of their ratification
of or accession to this Treaty, does not provide for protection after the death
of the performer of all rights set out in the preceding paragraph may provide
that some of these rights will, after his death, cease to be maintained.

 

(3)       The means of redress for safeguarding the
rights granted under this Article shall be governed by the legislation of the
Contracting Party where protection is claimed[5].


 

 

Article 6

Economic
Rights of Performers in their Unfixed Performances

 

Performers
shall enjoy the exclusive right of authorizing, as regards their performances:

 

         (i)           the broadcasting and communication to
the public of their unfixed performances except where the performance is
already a broadcast performance;  and

 

            (ii)        the
fixation of their unfixed performances.

 

 

Article 7

Right of
Reproduction

 

Performers
shall enjoy the exclusive right of authorizing the direct or indirect
reproduction of their performances fixed in audiovisual fixations, in any
manner or form[6]. 

 

 

Article 8

Right of
Distribution

 

(1)       Performers shall enjoy the exclusive right
of authorizing the making available to the public of the original and copies of
their performances fixed in audiovisual fixations through sale or other
transfer of ownership.

 

(2)       Nothing in this Treaty shall affect the
freedom of Contracting Parties to determine the conditions, if any, under which
the exhaustion of the right in paragraph (1) applies after the first sale or
other transfer of ownership of the original or a copy of the fixed performance
with the authorization of the performer[7].  

 

 

Article 9

Right of
Rental

 

(1)       Performers shall enjoy the exclusive
right of authorizing the commercial rental to the public of the original and
copies of their performances fixed in audiovisual fixations as determined in
the national law of Contracting Parties, even after distribution of them by, or
pursuant to, authorization by the performer.

 

(2)       Contracting Parties are exempt from the
obligation of paragraph (1) unless the commercial rental has led to widespread
copying of such fixations materially impairing the exclusive right of
reproduction of performers[8].


 

 

Article
10

Right of
Making Available of Fixed Performances

 

Performers
shall enjoy the exclusive right of authorizing the making available to the
public of their performances fixed in audiovisual fixations, by wire or
wireless means, in such a way that members of the public may access them from a
place and at a time individually chosen by them.

 

 

 

Article
11

Right of
Broadcasting and Communication to the Public

 

(1)       Performers shall enjoy the exclusive right
of authorizing the broadcasting and communication to the public of their
performances fixed in audiovisual fixations.

 

(2)       Contracting Parties may in a notification
deposited with the Director General of WIPO 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.

 

(3)       Any Contracting Party may declare that it
will apply the provisions of paragraphs (1) or (2) only in respect of certain
uses, or that it will limit their application in some other way, or that it
will not apply the provisions of paragraphs (1) and (2) at all.

 

 

Article
12

Transfer
of Rights

 

(1)       A Contracting Party may provide in its
national law that once a performer has consented to fixation of his or her
performance in an audiovisual fixation, the exclusive rights of authorization
provided for in Articles 7 to 11 of this Treaty shall be owned or exercised by
or transferred to the producer of such audiovisual fixation subject to any contract
to the contrary between the performer and the producer of the audiovisual
fixation as determined by the national law.

 

(2)       A Contracting Party may require with
respect to audiovisual fixations produced under its national law that such
consent or contract be in writing and signed by both parties to the contract or
by their duly authorized representatives.

 

(3)       Independent of the transfer of exclusive
rights described above, national laws or individual, collective or other
agreements may provide the performer with the right to receive royalties or
equitable remuneration for any use of the performance, as provided for under
this Treaty including as regards Articles 10 and 11.

 

 

Article
13

Limitations
and Exceptions

 

(1)       Contracting Parties may, in their national
legislation, provide for the same kinds of limitations or exceptions with
regard to the protection of performers as they provide for, in their national
legislation, in connection with the protection of copyright in literary and
artistic works.

 

(2)       Contracting Parties shall confine any
limitations of or exceptions to rights provided for in this Treaty to certain
special cases which do not conflict with a normal exploitation of the
performance and do not unreasonably prejudice the legitimate interests of the
performer[9].


 

 

Article
14

Term of
Protection

 

The term
of protection to be granted to performers under this Treaty shall last, at
least, until the end of a period of 50 years computed from the end of the year
in which the performance was fixed.

 

 

Article
15

Obligations
concerning Technological Measures

 

Contracting
Parties shall provide adequate legal protection and effective legal remedies
against the circumvention of effective technological measures that are used by
performers in connection with the exercise of their rights under this Treaty
and that restrict acts, in respect of their performances, which are not
authorized by the performers concerned or permitted by law[10],[11].


 

 

Article
16

Obligations
concerning Rights Management Information

 

(1)       Contracting Parties shall provide
adequate and effective legal remedies against any person knowingly performing
any of the following acts knowing, or with respect to civil remedies having
reasonable grounds to know, that it will induce, enable, facilitate, or conceal
an infringement of any right covered by this Treaty:

 

            (i)         to
remove or alter any electronic rights management information without authority;

 

         (ii)          to distribute, import for
distribution, broadcast, communicate or make available to the public, without
authority, performances or copies of performances fixed in audiovisual
fixations knowing that electronic rights management information has been
removed or altered without authority.

 

(2)       As used in this Article, “rights
management information” means information which identifies the performer, the
performance of the performer, or the owner of any right in the performance, or
information about the terms and conditions of use of the performance, and any
numbers or codes that represent such information, when any of these items of
information is attached to a performance fixed in an audiovisual fixation[12].


 

 

Article
17

Formalities

 

The
enjoyment and exercise of the rights provided for in this Treaty shall not be
subject to any formality.

 

 

Article
18

Reservations
and Notifications

 

(1)       Subject to provisions of Article 11(3),
no reservations to this Treaty shall be permitted.

 

(2)       Any notification under Article 11(2) or
19(2) may be made in instruments of ratification or accession, and the
effective date of the notification shall be the same as the date of entry into
force of this Treaty with respect to the Contracting Party having made the notification.  Any such notification may also be made later,
in which case the notification shall have effect three months after its receipt
by the Director General of WIPO or at any later date indicated in the notification.

 

 

Article
19

Application
in Time

 

(1)       Contracting Parties shall accord the
protection granted under this Treaty to fixed performances that exist at the moment
of the entry into force of this Treaty and to all performances that occur after
the entry into force of this Treaty for each Contracting Party.

 

(2)       Notwithstanding the provisions of
paragraph (1), a Contracting Party may declare in a notification deposited with
the Director General of WIPO that it will not apply the provisions of Articles
7 to 11 of this Treaty, or any one or more of those, to fixed performances that
existed at the moment of the entry into force of this Treaty for each
Contracting Party.  In respect of such
Contracting Party, other Contracting Parties may limit the application of the
said Articles to performances that occurred after the entry into force of this
Treaty for that Contracting Party.

 

(3)       The protection provided for in this
Treaty shall be without prejudice to any acts committed, agreements concluded
or rights acquired before the entry into force of this Treaty for each
Contracting Party.

 

(4)       Contracting Parties may in their
legislation establish transitional provisions under which any person who, prior
to the entry into force of this Treaty, engaged in lawful acts with respect to
a performance, may undertake with respect to the same performance acts within
the scope of the rights provided for in Articles 5 and 7 to 11 after the entry
into force of this Treaty for the respective Contracting Parties.

 

 

Article
20

Provisions
on Enforcement of Rights

 

(1)       Contracting Parties undertake to adopt,
in accordance with their legal systems, the measures necessary to ensure the
application of this Treaty.

 

(2)       Contracting Parties shall ensure that
enforcement procedures are available under their law so as to permit effective
action against any act of infringement of rights covered by this Treaty,
including expeditious remedies to prevent infringements and remedies which
constitute a deterrent to further infringements.

 

 

Article
21

Assembly

 

(1)       (a)       The
Contracting Parties shall have an Assembly.

 

            (b)       Each
Contracting Party shall be represented in the Assembly by one delegate who may
be assisted by alternate delegates, advisors and experts.

 

            (c)       The
expenses of each delegation shall be borne by the Contracting Party that has
appointed the delegation.  The Assembly
may ask WIPO to grant financial assistance to facilitate the participation of
delegations of Contracting Parties that are regarded as developing countries in
conformity with the established practice of the General Assembly of the United
Nations or that are countries in transition to a market economy.

 

(2)       (a)       The
Assembly shall deal with matters concerning the maintenance and development of
this Treaty and the application and operation of this Treaty.

 

            (b)       The
Assembly shall perform the function allocated to it under Article 23(2) in
respect of the admission of certain intergovernmental organizations to become
party to this Treaty.

 

            (c)       The
Assembly shall decide the convocation of any diplomatic conference for the
revision of this Treaty and give the necessary instructions to the Director
General of WIPO for the preparation of such diplomatic conference.

 

(3)       (a)       Each
Contracting Party that is a State shall have one vote and shall vote only in
its own name.

 

            (b)       Any
Contracting Party that is an intergovernmental organization may participate in
the vote, in place of its Member States, with a number of votes equal to the
number of its Member States which are party to this Treaty.  No such intergovernmental organization shall
participate in the vote if any one of its Member States exercises its right to
vote and vice versa.

 

(4)       The Assembly shall meet upon convocation
by the Director General and, in the absence of exceptional circumstances,
during the same period and at the same place as the General Assembly of WIPO.

 

(5)       The Assembly shall endeavor to take its
decisions by consensus and shall establish its own rules of procedure,
including the convocation of extraordinary sessions, the requirements of a
quorum and, subject to the provisions of this Treaty, the required majority for
various kinds of decisions.

 

 

Article
22

International
Bureau

 

The
International Bureau of WIPO shall perform the administrative tasks concerning
the Treaty.

 

 

 

 

 

 

 

Article
23

Eligibility
for Becoming Party to the Treaty

 

(1)       Any Member State
of WIPO may become party to this Treaty.

 

(2)       The Assembly may decide to admit any
intergovernmental organization to become party to this Treaty which declares
that it is competent in respect of, and has its own legislation binding on all
its Member States on, matters covered by this Treaty and that it has been duly authorized,
in accordance with its internal procedures, to become party to this Treaty.

 

(3)       The European Union, having made the
declaration referred to in the preceding paragraph in the Diplomatic Conference
that has adopted this Treaty, may become party to this Treaty.

 

 

Article
24

Rights
and Obligations under the Treaty

 

Subject
to any specific provisions to the contrary in this Treaty, each Contracting
Party shall enjoy all of the rights and assume all of the obligations under
this Treaty.

 

 

Article
25

Signature
of the Treaty

 

This
Treaty shall be open for signature at the headquarters of WIPO by any eligible
party for one year after its adoption.

 

 

Article
26

Entry
into Force of the Treaty

 

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.

 

 

Article
27

Effective
Date of Becoming Party to the Treaty.

 

This
Treaty shall bind:

 

(i)         the 30 eligible parties referred to in
Article 26, from the date on which this Treaty has entered into force;

 

(ii)        each other eligible party referred to in
Article 23, from the expiration of three months from the date on which it has
deposited its instrument of ratification or accession with the Director General
of WIPO.

 

 

Article
28

Denunciation
of the Treaty

 

This
Treaty may be denounced by any Contracting Party by notification addressed to
the Director General of WIPO.  Any
denunciation shall take effect one year from the date on which the Director
General of WIPO received the notification.

 

 

 

Article
29

Languages
of the Treaty

 

(1)       This Treaty is signed in a single
original in English, Arabic, Chinese, French, Russian and Spanish languages,
the versions in all these languages being equally authentic.

 

(2)       An official text in any language other
than those referred to in paragraph (1) shall be established by the Director
General of WIPO on the request of an interested party, after consultation with
all the interested parties.  For the
purposes of this paragraph, “interested party” means any Member State of WIPO
whose official language, or one of whose official languages, is involved and
the European Union, and any other intergovernmental organization that may
become party to this Treaty, if one of its official languages is involved.

 

 

Article
30

Depositary

 

The
Director General of WIPO is the depositary of this Treaty.

 

 









[1]              Agreed statement
concerning Article 1:  It is understood
that nothing in this Treaty affects any rights or obligations under the WIPO
Performances and Phonograms Treaty (WPPT) or their interpretation and it is
further understood that paragraph 3 does not create any obligations for a Contracting
Party to this Treaty to ratify or accede to the WPPT or to comply with any of
its provisions.

 





[2]          Agreed statement concerning Article 1(3):  It is understood that Contracting Parties who
are members of the World Trade Organization (WTO) acknowledge all the
principles and objectives of the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement) and understand that nothing in
this Treaty affects the provisions of the TRIPS Agreement, including, but not
limited to, the provisions relating to anti-competitive practices.

 





[3]              Agreed statement
concerning Article 2(a):  It is
understood that the definition of “performers” includes those who perform a
literary or artistic work that is created or first fixed in the course of a
performance.

 





[4]              Agreed statement
concerning Article 2(b):  It is hereby
confirmed that the definition of “audiovisual fixation” contained in Article
2(b) is without prejudice to Article 2(c) of the WPPT.





[5]              Agreed statement
concerning Article 5:  For the purposes
of this Treaty and without prejudice to any other treaty, it is understood
that, considering the nature of audiovisual fixations and their production and
distribution, modifications of a performance that are made in the normal course
of exploitation of the performance, such as editing, compression, dubbing, or
formatting, in existing or new media or formats, and that are made in the
course of a use authorized by the performer, would not in themselves amount to
modifications within the meaning of Article 5(1)(ii).  Rights under Article 5(1)(ii) are concerned
only with changes that are objectively prejudicial to the performer’s
reputation in a substantial way.  It is
also understood that the mere use of new or changed technology or media, as
such, does not amount to modification within the meaning of Article 5(1)(ii).

 





[6]              Agreed statement
concerning Article 7:  The reproduction
right, as set out in Article 7, and the exceptions permitted thereunder through
Article 13, fully apply in the digital environment, in particular to the use of
performances in digital form.  It is
understood that the storage of a protected performance in digital form in an
electronic medium constitutes a reproduction within the meaning of this
Article.

 





[7]              Agreed statement
concerning Articles 8 and 9:  As used in
these Articles, the expression “original and copies,” being subject to the
right of distribution and the right of rental under the said Articles, refers
exclusively to fixed copies that can be put into circulation as tangible
objects.

 





[8]              Agreed statement
concerning Articles 8 and 9:  As used in
these Articles, the expression “original and copies,” being subject to the
right of distribution and the right of rental under the said Articles, refers
exclusively to fixed copies that can be put into circulation as tangible
objects.





[9]              Agreed statement
concerning Article 13:  The Agreed
statement concerning Article 10 (on Limitations and Exceptions) of the WIPO
Copyright Treaty (WCT) is applicable mutatis
mutandis also to Article 13 (on Limitations and Exceptions) of the Treaty.

 





[10]             Agreed statement
concerning Article 15 as it relates to Article 13:  It is understood that nothing in this Article
prevents a Contracting Party from adopting effective and necessary measures to
ensure that a beneficiary may enjoy limitations and exceptions provided in that
Contracting Party’s national law, in accordance with Article 13, where
technological measures have been applied to an audiovisual performance and the
beneficiary has legal access to that performance, in circumstances such as
where appropriate and effective measures have not been taken by rights holders
in relation to that performance to enable the beneficiary to enjoy the
limitations and exceptions under that Contracting Party’s national law.  Without prejudice to the legal protection of
an audiovisual work in which a performance is fixed, it is further understood
that the obligations under Article 15 are not applicable to performances
unprotected or no longer protected under the national law giving effect to this
Treaty.

 





[11]             Agreed statement
concerning Article 15:  The expression
“technological measures used by performers” should, as this is the case
regarding the WPPT, be construed broadly, referring also to those acting on
behalf of performers, including their representatives, licensees or assignees,
including producers, service providers, and persons engaged in communication or
broadcasting using performances on the basis of due authorization.

 





[12]             Agreed statement
concerning Article 16:  The Agreed
statement concerning Article 12 (on Obligations concerning Rights Management
Information) of the WCT is applicable mutatis
mutandis also to Article 16 (on Obligations concerning Rights Management
Information) of the Treaty.

 





 		 	   		  


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