The WIPO Beijing treaty ratification: past the turning point!

D. Luquer & D. Kiris at WIPO Regional Meeting

Denis Kiris at WIPO Regional Meeting

The WIPO Beijing Treaty must be ratified or acceded by at least 30 countries in order to enter into force and become a binding legal instrument, setting a new international standard for the protection of audiovisual performances. FIA has campaigned since the conclusion of this historical new instrument in 2012 to raise awareness about the treaty, advising countries with respect to future benefits for audiovisual performers and how to exploit the flexibility built into the treaty's main provisions to ensure that new intellectual property protection also deliver tangible benefits to them. In many countries around the world, in fact, the provision of exclusive economic rights may not deliver substantial gains to performers where coupled with a legal presumption of transfer of those rights to the producer – especially where union representation is not strong enough to set acceptable minimum terms, through collective bargaining, for the transfer of those rights. Depending on the size of the audiovisual industry, its resonance abroad, the degree of labour representation of performers, the level of industrial development and the existence of a well-functioning collective bargaining system, the Beijing treaty offers decision-makers several options to choose from – including statutory mechanisms rewarding performers for the use of their work and offsetting otherwise biased, and mainstream, contractual practices.

With a view to promoting a better understanding of the Beijing treaty ratification and implementation from the standpoint of audiovisual performers, FIA has attended several regional and sub-regional meetings organised by WIPO in various parts of the world. These conferences bring many governments together and are an excellent networking opportunity. They offer FIA a chance to talk about the professional challenges that performers face in the audiovisual industry, how the implementation of the Beijing treaty may help with some of them and address the myths that still persist in the mind of decision-makers about their privileged social and economic status. The last of these roundtables took place in Moscow, on September 11 and 12, and gathered IP experts and government representatives from Albania, Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Serbia and Russia. Among these countries, only Russia has already ratified the WIPO Beijing treaty and is considered by other countries in the region as an example to follow. Russia ratified this instrument by granting audiovisual performers moral rights and exclusive economic rights for all forms of exploitation of their performances. However, Russia has also upheld a rebuttable presumption of transfer of all exclusive economic rights to producers, which was already embedded in its copyright act. In the absence of a strong union representation and of a robust collective bargaining tradition in that country, this means – unless further statutory revision is envisaged – that those rights are not likely to deliver much to audiovisual performers in the country, as they usually give away all their rights at point of contract in return for an often symbolic, upfront payment. FIA clearly made the point that additional statutory mechanisms should be considered where presumptions of transfer are in place, granting performers on-going payments for as long as their performances are used. This is perfectly in line with the Beijing treaty and should be considered by any other country seeking to draw inspiration from Russia in the near future.

The Beijing treaty has until now been ratified by 18 countries. Regretfully, the EU ratification – which is likely to be based on exclusive competence – will most certainly count as one, leaving still some ground to cover before this international convention may become the new global norm. FIA therefore calls on all its affiliates around the world to continue to promote ratification by their governments and, by the same token, a meaningful implementation of these provisions in their national legal systems.