Intellectual Property
Intellectual property rights provide protection to creations of the mind. Under IP law, right owners are granted economic rights to a variety of intangible assets, such as musical, audiovisual, literary and artistic works; inventions; trademarks and designs.
The IP rights of performers are generally referred to as “neighbouring” or “related” rights as they are very closely related to - but arise independently from - any copyright that may exist in the work itself that is the subject of a performance. These rights arise in respect of each performance and are not subject to any formal registration requirement. In accordance with a well-established tradition, they normally benefit 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.
Where IP protection is granted to performers at national level, it usually encompasses economic rights (granting performers various degrees of control over the exploitation of their work) as well as moral rights, protecting the integrity and the paternity of their performance.
Economic rights generally include exclusive rights, granting performers the absolute right to authorise or prohibit the use of a performance, as well as equitable remuneration rights, for which such authorisation is not required to the extent that performers are duly compensated. This is often the case for mass uses of performances, e.g. broadcasting and communication to the public, but also in the framework of some statutory exceptions to the exclusive rights of performers, as in the case of private copying. As it would be highly impractical for users and/or consumers to seek the authorisation of performers and other right owners in these cases, national laws grant them licence to use that protected content subject to certain conditions, whilst generally also establishing mechanisms for the payment of compensation to the right owners. The collection and distribution of these monies is often entrusted to collective management organisations, who monitor use, negotiate tariffs, collect revenues, assign payments and see to it that performers receive their due.
Conversely, the exclusive rights of performers are typically dealt with by contract. They may be assigned, licensed or otherwise transferred to the producer against payment of a fee, which can also involve further compensation in the form of royalties or residuals as the exploitation of a performance continues to generate income. Some national laws may provide for various degrees of presumption as to how the rights are consolidated, aiming to facilitate the licensing of movie and other audiovisual works by the producer. FIA does not support legal mechanisms that weaken the individual or collective bargaining power of performers and encourage abusive practices such as unfair buy-outs of all performers’ exclusive rights.
The biased request by producers to make the presumption of transfer of the exclusive rights of performers the absolute rule for all audiovisual contracts was the reason why the negotiation of a new international treaty at the World Intellectual Property Organisation (WIPO) extending IP protection to audiovisual performances took more than 20 years. The 2012 WIPO Beijing Treaty now sets a universal minimum standard in the protection of audiovisual performances, thus completing the international legal framework of performers’ rights - until recently limited to the audio field. The treaty acknowledges that performers’ exclusive economic rights in the audiovisual field may be managed in accordance with various legal traditions and contractual practices. Like previous WIPO treaties, the WIPO Beijing Treaty is expected to enhance IP protection around the world and encourage countries to grant meaningful economic and moral rights to performers in the audiovisual sector.
The legal protection of performers’ economic rights is limited in time. Whilst the minimum international standard is 50 years from the end of the year in which the performance was fixed, many national laws have opted for a longer term. Moral rights, on the other hand, are often protected with no such limitation.
