This article is written by Himanshu Mahamuni, a student of Government Law College, Mumbai. This article analyzes the Beijing Treaty on Audio-Visual Performance (BTAP) and its benefits to performers.

Introduction

The Beijing Treaty on Audio-Visual Performance (BTAP) has entered as a saviour for artists such as singers, musicians, dancers and actors, in the field of audio-visual format. This treaty was adopted in the conference on the protection of Audiovisual Performances in Beijing, which took place in June 2012 and later came into force on 28 April 2020. It was enforced when a minimum number of parties, 30 countries signed the treaty and at present 42 countries are signatories to it. States who are member states of WIPO and the whole of the European Union are eligible to become a signatory of BTAP. It protects audio-visual performances for 50 years from signing. 

This treaty protects the rights of artists, in both recorded works such as on films and televisions, and live work performed, such as concerts, based on certain rights accordingly. These works can be protected by the proper copyright mechanism of the parties in their territory which may range from music, films and other audio-visual performances. This article discusses the role of BTAP in the protection of artists’ rights, other such treaties, rights provided under BTAP and India’s role in it. 

Importance of BTAP

Artists of the states who have entered into the treaty have welcomed this treaty. This treaty duly provides intellectual protection to the work of such performers. This treaty will ensure the economic development of audiovisual performers while improving their status and protecting the culture, folklore and cultural diversity. Artists of the countries who are a signatory or not to the treaty can still be protected by the internal laws relating to their protection, but their work displayed in other countries outside the jurisdiction of their internal laws might violate their rights. This treaty ensures the safeguarding of the audiovisuals screened abroad, which was not available otherwise.

This treaty also ensures the protection of traditional cultural expression and national folklore. As a result, BTAP not only encourages artists to work and improve on their performance but also ensures their protection against violation of their rights. This treaty was widely appreciated by the artists of audiovisual format, where the content consumption has been raised to peak due to widespread internet services. 

Difference between BTAP and other treaties made by WIPO

International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (“Rome Convention”), 1961

The Rome convention protects against unauthorised broadcasting or recording of the performer’s works. However, artists did not have rights over the audiovisual medium. It also does not contain any provisions for three-step limits for exceptional cases. The convention tries to include both the American and English common law in unity which has created uncertainty and confusion. This shortcoming has been filled up by the BTAP, by giving full control over the work with clear language and well-structured laws. 

Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), 1987

Berne convention protects the rights of creators such as authors, musicians, poets, painters etc and grants control over who, how and on what terms their work can be used.The Berne convention lacks the enforcement mechanism. The convention gives lesser power to member states for punishment to those who contradict the provisions of the convention. This resulted in the protection over the copyrighted work as not absolute and subjective to the artist because it vaguely described the term “copyright” in its structure. BTAP, in line with WIPO, has clearly defined all terms with specific and correct usage.

WIPO Performances and Phonograms Treaty (WPPT), 1996

WPPT dealt with the rights of performers and producers of phonograms. This treaty gave protection against copying, distribution and making available phonograms. This treaty did not undertake rights of audiovisual performances recorded in the media and governed only the aural and fixed to phonograms. This treaty grants moral rights to performers but the producers of phonograms are only granted economic rights. These problems have been overcome by the BTAP, as it exclusively focuses on audiovisual performers and grants both the rights in proportion.

Economic Rights and Moral Rights provided under BTAP

Economic Rights

BTAP grants artists different rights based on the type of performance they do. Artists whose performances are fixed in audiovisual format i.e. in recorded modes have the following rights: 

1. Right to Reproduction (Article 7)

It authorizes direct or indirect reproduction of the performance by another individual on permission by a performer fixed in audiovisual format.

2. Right to Distribution (Article 8)

It authorizes the distribution of the copies of the performance to the public by the means of sale or ownership in audiovisual format. 

3. Right to Rental (Article 9)

It authorizes commercial renting to the public of the original and copies of the performance in audiovisual format. 

4. Right of making Available (Article 10)

It authorizes the making available to the public of any performance from the internet or any digital distribution in the audiovisual format. 

Artists whose performances are of unfixed audiovisual format, i.e., live mode, have the following rights:

1. Right of Broadcasting(Article 11)

This right can be utilized except in the case of rebroadcasting of the content.

2. Right of Communication(Article 11)

This right can be utilized except where performance is a broadcast performance.

3. Right of Fixation (Article 11)

Moral Rights

Moral rights are one of the most important rights to be bestowed upon a performer. Under moral rights, a person can claim to be identified as the performer. This also gives rise to opposition to any distortion, mutilation or other modification which might result in harm to the reputation of the performing artist, taking into consideration the nature of the audiovisual format. 

Moral rights continue even after the death of the performer, which can be exercised by the authorized person or institution at least until the expiry of the economic rights. This right protects the performer’s reputation even after transferring his ownership as they were before the transfer. 

Economic Rights: Exclusive Rights and Statutory Licenses

Exclusive rights are the powers to allow or disallow the use of an individual’s work by another person who is not the performer himself. To prevent the misuse of their rights, there are specific situations where continuous authorization of the performer is not required. A performer may transfer his economic rights under Article 12 of the BTAP given under Articles 7-11 and he transfers his ownership or exercise rights by transferring to the producer of the audiovisual fixations to a contracting party according to the national law.

Such a contract between the parties must be entered in writing and signed by both parties concerning audiovisual fixations produced under its national law. However, even after transferring the rights, the performer may be eligible to receive royalties or equitable remuneration for the use of his performance. Any member is free to extend the minimum protection.

Statutory licenses are limitations or exceptions to the exclusive rights of the individual over the copyrighted work. BTAP has provided for the limitations and exceptions to the use of the performer’s exclusive rights under Article 13, which directs to provide limitation or exception to the protection to the performer, as may be provided in the national legislation concerning the copyright in literary and artistic works. Parties are free to form specific limitations or exceptions to the sector in the line with internal provisions of intellectual property. It has to be passed under three-step limits as provided in Article 9(2) of the Bern Convention, namely: 

1. Certain special cases,
2. which do not conflict with a normal exploitation of the performance, and 
3. do not unreasonably prejudice the legitimate interests of the performer.

Term of Protection

The treaty provides protection for a period of fifty years (Article 14) to the performers from the year in which the performance was fixed. This protection is available for both the economic rights as well as moral rights. The countries which have not formeany d internal legislation for the protection of moral rights after the expiration of treaty during the treaty in force, shall not have any obligations to grant the moral protection to the performer.

Temporal Applications

Some of the several cases where temporal applications are-

1. The treaty, when in force, any future audio-visual performance of both fixed and live nature shall be mandatorily under provisions of the treaty. 
2. The states may or may not provide exclusive economic rights in a dispositive capacity in the fixed or recorded performances which were in existence at the time of the treaty came into force.
3. However, in the case of moral rights, it shall be applicable to all the cases in past, present and future performances whether fixed or live. 

The interplay of the Treaty and the Parties

The contracting parties to the treaty shall have an assembly(Article 21). This assembly will consist of an alternate delegate, expert and advisor who will deal with the matter relating to maintenance and development of the treaty with its application and operation. Apart from the WIPO, member state and the EU members, the assembly is qualified to give admission to competent intergovernmental organizations(Article 23) to become a part of the treaty. The assembly of members can organize diplomatic conferences for discussion of the treaty and vote on the same to pass any resolution. Each contracting party who is a member state shall have a single vote each. 

The interplay of the parties as a part of the assembly keeps check on the terms of the treaty and passes any decision, only by consensus, to establish its own rules. This instils equality among members and increases their trust in the treaty.

India’s role in the BTAP

BTAP is an inclusive treaty that is steadily being widely accepted, with the 42 member states as signatories to the treaty. India is not a party to the treaty as of now. India must consider signing the treaty. One of the major reasons is to preserve the rich and hereditary traditional arts performed by the artists. The treaty protects the cultural diversity brought in literary works and music in audiovisual format. To protect the traditional folktales from becoming extinct and improve their status on the global level, India must sign the treaty.

As a leading south-east Asian and developing country, India’s stance must be of encouraging such treaties. India is currently a signatory to six treaties administered by WIPO, so it will be easier to join the Beijing convention. India is a member of the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), which will supplement BTAP to strengthen India’s performers. These treaties are flexible and can be bent by internal provisions. The addition of BTAP will make stricter norms for the protection and enhance the position of the audio-visual sector in the country. India will play a pivotal role in administering the assembly and developing the framework of the treaty by being part of the treaty.

Conclusion

The level of safeguard set by BTAP in the Intellectual Property is remarkable. It has overcome the shortcoming of previous audiovisual conventions while developing itself to be more inclusive. While previous treaties failed to give both moral and economic rights, BTAP has struck a balance and given the protection which was needed to the audiovisual performers.

This treaty has more clear rules and regulations, and while finally differing from phonograms, audiovisual formats are more justified to be protected and addressed. In the new digital era, where people have adopted it due to the COVID pandemic, the treaty has entered at the perfect time to protect the rights of the performers. This will surely bring positive change for the artists and encourage them to develop and facilitate more conducive organizations to strengthen this sector. 

References

• https://wipolex.wipo.int/en/text/295837
• https://www.wipo.int/edocs/pubdocs/en/wipo_pub_beijing_flyer.pdf

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