On the 24th of June 2012, most countries of the world unanimously adopted what, to date, remains the latest multilateral treaty advancing the protection of intellectual property. After decades of resolute advocacy by many performer organizations, amongst whom FIA was always to the forefront, the WIPO Beijing Treaty finally addressed a long-standing discrimination, which denied any meaningful protection to audiovisual fixations, as opposed to audio recordings, and finally granted audiovisual performers ground-breaking, new rights to protect their image and monetize the use of those fixations.
Art. 26 of the WIPO Beijing Treaty on Audiovisual Fixations provided that the latter would enter into force three months after the 30th ratification or accession by a member State or an intergovernmental organization with exclusive competence on all matters covered by the treaty. With the ratification by the Republic of Indonesia on January 28, 2020, that threshold was finally attained. The WIPO Beijing Treaty will thus enter into force and legally bind all of its contracting parties on April 28, 2020.
FIA and its affiliated unions warmly welcome this landmark and historical moment. The contribution by performers to the film and audiovisual industry – in its various shapes and forms – is the ultimate key to its success and indeed its very existence. No meaningful content filling our screens would be possible without them. And yet, also due to the lack of consensus at international level over a minimum harmonized legal framework, many of them are still deprived of a return on their immaterial creations, only getting paid, in the best-case scenario, for providing their labour. Despite this, those performances are a major promotional element for a myriad of films, TV series, videogames, documentaries and other audiovisual material enjoyed by a global audience, both on and off line.
In an ironic twist of fate, the entry into force of the WIPO Beijing Treaty comes at a time when millions of performers around the world are reduced to silence, due to an unprecedented health crisis that has paralyzed the whole arts and entertainment industry, among many other sectors of our economies. Suffering devastating revenue losses, and with scarce social benefits to fall back on, many freelance performers are enduring desperate times and are wondering if, and when, things may go back to normal again. With no theatres, cinemas or live shows to flock to, audiences have massively turned to the internet for content, streaming films and TV series to entertain themselves during a long and seemingly endless lockdown. And yet, despite record-high viewing rates, most performers will not get anything more than the fee initially paid to them for delivering the job. Additional income, flowing from the success of their performances, would be a much welcome benefit today – as at every other time that performers face unemployment in between jobs.
The WIPO Beijing Treaty is an opportunity to change this and ensure that performers get fairly remunerated not only for delivering their audiovisual performances but equally for the extent to which these are successfully exploited, including in the online environment. By creating a level playing field, countries of the world will be encouraged to extend meaningful protections to each other’s performances, on the basis of national treatment, as well as their own. The built-in flexibility of some treaty provisions will also enable them to craft the most appropriate remuneration mechanism for when performances are broadcast or otherwise communicated to the public and build much needed safeguards around the transfer of exclusive exploitation rights to the producing entity. These safeguards must be crafted to empower performers to resist the pressure to relinquish their rights at point of contract against a one-off, often symbolic, upfront payment. Based on the strength of their trade union representation, this may be best achieved by enhancing the role of collective bargaining in establishing proportionate payments. Elsewhere, where performers lack labour representation or enough collective clout to define a fair minimum, this may require the introduction of statutory, and complementary, payment entitlements. Either way, countries wishing to become parties to the WIPO Beijing Treaty must be guided by the need to “develop and maintain the protection of the rights of performers in their audiovisual performances as effective and uniform as possible”, as the treaty’s preamble makes abundantly clear. This entails granting effective tools to performers to monetize the use of their performances, including in the online environment.
Despite the global Covid-19 crisis, April 28, 2020, will be a time for audiovisual performers to rejoice, as “their” treaty finally joins the upper circle of all legally binding multinational conventions. It is a first, encouraging step towards a global acknowledgement of their fundamental contribution to one of the most successful industries of all time. As many large producing countries are yet to commit to the WIPO Beijing Treaty, more time will be needed before its provisions may become a truly global norm. However, the ball is now finally rolling and with the number of contracting parties growing, so will the certainty that adequately rewarding and protecting performers is in the best interest of a healthy and successful audiovisual industry.
