The WIPO Beijing Treaty: so near, and yet so far

After more than 20 years of stubborn lobbying and campaigning, one might have expected the ratification of the unanimously adopted WIPO Beijing Treaty on the Protection of Audiovisual Performances would be easy peasy lemon squeezy. It took six years for the WIPO Performances and Phonograms Treaty to enter into force and that treaty was far from consensual. Surely the Beijing Treaty would establish a global norm in far lesser time… and yet here we are. Already six years from the 2012 Diplomatic Conference that delivered the Beijing Treaty and still with eleven contracting parties needed to make this international instrument legally binding… Why is it taking so long?

Arguably, for a number of reasons. One should not forget that in 2013, another WIPO Treaty was successfully concluded, introducing a global copyright exception to the benefit of people with visual impairments. With a lower threshold of 20 contracting parties, the Marrakech treaty has already entered into force and keeps being ratified by countries around the world at great speed. Political priorities have quickly shifted towards this instrument, which is perceived to address a fundamental concern: access to education for all people, including those with disabilities.

The second reason is perhaps the relatively low level of engagement of performers at national level: actors are constantly auditioning for their next job, rehearsing, performing on camera or stage, and are often unaware of the importance of intellectual property to enhance their livelihood. Whether working on minimum terms negotiated by their unions or on those, far less generous, imposed on them by their employers/contractors, they tend to go by the prevalent industry standard. Only a few of them, who are sufficiently high profile, can set terms for the use of their performances and derive higher-than-average additional payments. Statutory payments, such as for cable retransmission or private copying levies, are not the norm around the world and are increasingly depleted by technological change.

A third plausible reason is that important countries or regional blocks, likely to generate a snowball effect, have not yet ratified the Beijing Treaty. This is the case, for instance, of the European Union: many countries in the region expect the EU to move first. Immersed in a time-consuming race against the clock to bag several ambitious reforms, including in the field of copyright, the EU has little time to focus on anything else. With new parliamentary elections next year and a new Executive, it is unlikely to focus on the Beijing Treaty ratification anytime soon. The current US administration has notoriously distanced itself from multilateralism meaning that another one of the most important players in the global audiovisual industry is not expected to look at the Beijing Treaty with any great enthusiasm for some time. India, another large producing country, seems to have lost the momentum with which it pushed for the negotiation to deliver the Beijing Treaty. Now the country has turned into an Eldorado for foreign investment and content production… and the local audiovisual industry ever more of a hellish place for actors to work in. No one is championing the rights of audiovisual performers in the international arena.

One more reason for the slow pace of ratification of the Beijing Treaty, is the fact that it is far more complex than other WIPO conventions. Important concessions had to be made for the treaty to see the light and be vouched for by all the members States of the World Intellectual Property Organisation. Much flexibility had to be embedded in key provisions to encompass various legal systems and options therein, providing rights – or denying them – for specific types of use. Understanding the implications of this variable geometry on a cross-border level and through the prism of national treatment can be rather puzzling, especially since the answer must also take account of other countries' end-choices.

In addition to the above, some countries are already quite pleased with the protection they have granted to their audiovisual performers and do not see a compelling case for ratifying the treaty anytime soon. Conversely, other countries with relatively small audiovisual industries, are concerned about becoming net contributors to the benefit of more successful content producing countries.

Finally, the Beijing Treaty only grants intellectual property protection to one specific group of beneficiaries, i.e. audiovisual performers. Previous treaties often also encompassed other stakeholders who undoubtedly helped to promote their swift ratification. This is the case, for instance, of the WPPT, a treaty promoting the rights of audio performers (mostly) and phonogram producers alike. All the reasons above help to understand why the Beijing Treaty has not yet entered into force, six years from its adoption. However, several countries are reportedly undertaking the necessary steps to ratify or accede in the foreseeable future, e.g. Cambodia, Costa Rica, the Dominican Republic, Oman, Kenya or Mongolia, and it is not unreasonable to expect that the 30-country threshold may be reached by end of 2019.

Obviously, many more countries will need to follow suit if the treaty is to establish a global norm for performers in the audiovisual sector and it is therefore essential to keep encouraging them to be true to their word. After all, all the WIPO member States approved every single line in the Beijing Treaty at the 2012 Diplomatic Conference.

FIA continues to work in partnership with WIPO to promote ratification: sub-regional roundtables were recently held in Russia, Australia and Albania gathering about thirty countries, many of which expressed a sincere interest in protecting performers and enhancing their wellbeing. Several more meetings of this kind will also be scheduled this year. As World IP day is fast approaching, FIA and its members will unite once again to campaign for the Beijing Treaty and FIA encourages all its members to continue to advocate nationally for their countries to become contracting parties.

Unless that happens, performers will continue to suffer a great injustice: despite their essential contribution to the success of the audiovisual industry, they are among the least protected and struggle to make ends meet. Content may be king but audiovisual performers still live off its table scraps.