WIPO Audiovisual Treaty: Managing IP’s guide to the Beijing diplomatic conference

What’s the treaty?

It’s WIPO’s proposed treaty on the protection of audiovisual performances.

What will it protect?

WIPO says that at the moment there is no international deal that protects rights holders and artists in audiovisual performances. These include films, TV programmes, music concerts recorded in DVDs and pop videos.

Agreement in Beijing would provide international standards for audiovisual performances for the first time, introducing them in many countries, and would complement the rights established by previous treaties, particularly the WIPO Performances and Phonograms Treaty (WPPT, 1996) which covered audio performances.

The 20 articles in the proposed treaty cover issues such as moral rights, economic rights and limitations and exceptions and provide for a minimum term of protection of 50 years.

It all sounds straightforward

Unfortunately not. Two previous attempts at a deal (in 1996 and 2000) failed. The main sticking point was a proposed article on the transfer of rights (Article 12 of the new proposed deal), clarifying who can claim royalties for the use of audiovisual works. This is an issue that member states have traditionally dealt with in their national laws in very different ways. In much of Europe, for example, rights have been enjoyed by the performers themselves. In the US, they are transferred to the producer of the work.

Some of the options on the table 12 years ago that led to the negotiations being abandoned struck at the heart of Hollywood’s financial model: film makers there say that producers need to be able to consolidate the rights to a work if they are to be able to secure funding for new films.

As a result, the US did not want the treaty to water down the work-made-for-hire doctrine, under which an employer rather than employee is considered the author of a work if it is made as part of the employee’s job.

Has the transfer issue been resolved?

On paper, yes. Some people might call it compromise, others might call it diplomatic fudging. The proposed new wording gives member states an opt-out: there is a presumption, rebuttable by a contract to the contrary, that rights will transfer to the producer of a work.

So why has WIPO convened a seven-day conference in Beijing? Surely the delegates just turn up and sign?

It’s not quite a done deal. Some people are nervous that the other 19 articles may be reopened at the Conference. This is a possibility that could be causing sleepless nights for WIPO officials as well as Chinese bureaucrats, who want their capital city to be added to the roll of international copyright treaties.

In particular, there may be more debate about the provisions dealing with technical protection measures and the protection given to extras and to improvised jazz performances.

There are also two competing proposals for a new clause in the preamble to the deal. One from Brazil (which has taken a very active role in discussions in the lead up to the Beijing conference) suggests: “Recalling the 45 recommendations adopted by WIPO Member States in the Development Agenda, particularly those under cluster B, regarding norm setting, flexibilities, public policy and the public domain.”

The other, put forward by the US, EU, Kenya, Mexico, Nigeria and Turkey, suggests: “Recalling the importance of the Development Agenda and its recommendations for norm-setting activities within WIPO’s mandate.”

The two phrases might sound similar, but politically they are very different and they go to the core of a clash between developed and developing countries about WIPO’s role. Proponents of the so-called development agenda, such as Brazil, are opposed to WIPO facilitating the imposition of developed-country IP standards on the rest of the world.

This clash could yet be played out in Beijing, hindering, or even preventing, a deal from being done.

You can read more about the background to the diplomatic conference in Managing IP’s April issue.

Managing IP will be reporting from the Diplomatic Conference in Beijing