FIA gains resumption of the WIPO Diplomatic Conference on audiovisual performances
The General Assembly of the World Intellectual Property Organisation (WIPO) has unanimously approved a recommendation which moves to resume the suspended Diplomatic Conference of 2000, in order to conclude the negotiation of an International Treaty on the protection of Audiovisual Performances. The conclusion of this important negotiation, long called for by our Federation, has been made possible following a historic compromise, reached in June 2011, on the issue of transfer of rights from performers to producers. The diverging views on this issue, which is one of the key elements of this Treaty, had effectively and repeatedly served to block the recognition of any intellectual property rights at international level for audiovisual performers – leading to an absurd and unacceptable discrimination with regard to audio performances, with the latter enjoying protection since the early ‘60s.The lack of any harmonisation at international level has been harmful for audiovisual performers, who, in many countries, have never benefitted from the recognition and protection of their moral and economic rights, despite their contribution to diversity of content and to the success of national audiovisual industries. “Countries where performers enjoy protection in relation to their audiovisual works are unfortunately very much in the minority and the absence of consensus at international level is part of the reason” commented Agnete Haaland, President of FIA. “In all others, audiovisual performers must generally accept a one-off payment, which takes no account of the commercial success that may result from the exploitation of their work and which, in the absence of representative organisations with sufficient clout, is imposed on them with little scope for negotiation. This is profoundly unjust. The future WIPO “Audiovisual Treaty”, whose substance is, for the moment, largely consensual, offers hope that there will be a rapid and widespread ratification of this instrument, which will allow it to have a real impact for the professionals whom we represent, without further delay”.
The new Treaty will accord audiovisual performers a moral right, which will allow them to better protect their reputation from prejudice. New economic rights will also allow them to draw concrete benefits from the exploitation of their work, particularly in the online and on-demand environment. As far as the transfer of rights is concerned, it is to be regulated in a way that takes account of the wide variety of legal frameworks and traditions that exist, without either promoting or jeopardizing any of them, while still allowing for safeguards to limit harm to performers.
The Diplomatic Conference should assemble in June or July 2012 at a location that is yet to be determined. While the WIPO seat in Geneva seems the most likely place, the Moroccan, Chinese and Mexican delegations have all expressed willingness to be hosts.
In addition to the new article on transfer of rights, members States will also have to confirm the adoption of the 19 articles which were provisionally adopted in 2000 and in their original formulation; reach agreement on the three additional joint declarations and the addition of a new paragraph to the Preamble; as well as finalise the administrative procedures in relation to the new Treaty.
Recommendation by the WIPO General Assembly
FIA calls for equal extension of term of protection for all performers
The European Commission is planning to extend the term of protection of the intellectual property rights of performers from 50 to 95 years, to take account of their longer life expectancy and also of the greater commercial lifespan of their work, especially in the digital new media environment. However, this proposal fails to meet its full objectives by limiting its scope to audio performances and phonogram producers only. As a result, performers would be granted a different term of protection, depending on the nature of their recording. Under this plan, audiovisual fixations would continue to benefit from a lesser and inappropriate term of 50 years. In addition to this arbitrary discrimination, performers’ rights would become increasingly difficult to manage, as the audio and visual part of a same performance can be fixed and exploited both jointly and separately.
Despite the inconsistency of this measure, the European Parliament seems also inclined to limit this new provision to audio recordings, though calling on the Commission to conduct an impact assessment study to determine whether or not a similar extension is equally justified in the audiovisual field.
At a press conference held at the European Parliament on 3 March 2009, FIA’s President Agnete Haaland has urged the Parliament and the Council to extend the term of protection to all performers. “I frankly do not understand why when my voice is recorded I get a 95-year protection and when my image is also recorded I only get 50 years. Why would my appearance be less important than my voice? It simply does not make any sense. I am a performer and deserve to be protected as a whole, no matter if my work is recorded on a CD or on a DVD”, Agnete said. She then urged decision-makers to take bold decisions that could really improve the livelihood of performers and read, also on behalf of sister federation FIM and several collecting societies, a joint statement calling for a successful adoption of this directive and its extension also to the audiovisual sector. This joint statement can be downloaded below.
The European Parliament is expected to meet in a plenary meeting on the week of March 23 to adopt its final position.
FIA President Agnete Haaland speaking at the press conference in the European Parliament
Music copyright: Europe focuses on collecting societies
The European Commission has released a study focusing on the cross-border licensing of authors’ intellectual property rights in the music on-line services. It considers that the current system cannot meet the demand of new Internet music providers – e.g. simulcasters, webcasters, streamcasters or on-demand retailers, etc. – who are increasingly calling for one-stop-shops to be set up, enabling them to distribute content throughout the EU. At present, thanks to a network of reciprocal agreements, each collecting society can license a global repertoire to content providers. Such licence, though, does not extend beyond national borders. On-line content providers, whose services span the whole EU, must therefore sign agreements with several collecting societies in all member States to be able to run their business. The Commission strongly advocates the need for a radical change in the on-line cross-border licensing system, which would introduce fierce competition among the collecting societies – to the alleged benefit of the final consumer and right holder. It says that each right holder should be able to choose which society should be allowed to license his/her work for on-line use throughout the EU. According to the Commission, such system would generate a healthy competition for the cross-border licensing and management of authors’ intellectual property rights; it would increase the overall revenue of right holders, stimulate collecting societies to provide better services to right holders, regardless of their country of residence. The Commission also seems to imply that these new licensing rules could very well become the common standard in the industry in the long term, i.e. apply to other categories of right holders in addition to authors, to the audiovisual sector and also to more traditional off-line uses of copyrighted works.
Although FIA does not object in principle to some harmonised norm setting in this field, including minimum principles on the cross-border distribution of the monies collected, on membership rules or on extra territorial licensing, it has also expressed serious reservations in relation to the solution envisaged by the Commission, which does not seem to be based on sufficient evidence and may actually create more problems than it wishes to solve.
Read the EU Commission discussion paper Read FIA’s position paper
The future of copyright debated at WIPO: FIA upholds the need for strong IP protection
FIA has joined other organisations representing industry and talent (film producers, record labels, publishers, musicians, journalists) to set up the Coalition for Creative Development (CCD). The CCD has the purpose of countering the arguments of some WIPO member states that are calling for intellectual property to be tempered by an aggressive development agenda. Invoking such interests as public access to knowledge, health or education, Brazil, Argentina, India and other countries are seeking to introduce limitations to intellectual property and virtually bring to a standstill any further norm setting in this field at international level. Although the focus is often on industrial property - and patents in particular, copyright and neighbouring rights also fall in the picture, raising the concerns of the entertainment industry at large. The "Friends of Development", as those countries define themselves, are also calling for any existing or future international norm setting in the field of IP to be preceded by a “Development Impact Assessment” and for developmental concerns to become an integral part of WIPO’s future policies.
At a string of meetings organised by WIPO to discuss and gather consensus on this issue, the CCD has resolutely advocated the importance of intellectual property and its enforcement for the creative sector. Far from being a limitation to social, cultural and economic development, IP rights are a vital tool for the entertainment industry and content creators.
FIA representatives stressed how performers around the world need IP protection to look after their reputation and to be able to make a living of their profession. Soaring levels of piracy and the inadequate enforcement of IP rights are damaging their ability to nourish cultural diversity, contribute to social well-being and to vibrant and tolerant societies. This is often the case in developing countries, were cultural production is very badly affected. FIA also stressed the central role played by performers in cultural production, calling on WIPO and its member States to consider the cultural, social, economic cost, as well as the impact on employment opportunities of such wide-spread violation of neighbouring rights in many regions of the world.
WIPO’s policy is currently under intense criticism on grounds that it has pursued copyright protection as an objective in itself, disregarding the unequal level of development around the world and imposing new standards with little consideration for the costs and burdens they generate for developing and least developed countries. A third intergovernmental meeting will take place in Geneva, from 20 to 22 July 2005, where a recommendation should be made to the WIPO General Assemblies, meeting in September 2005.
FIA statement (April 2005, FR v. only) FIA statement (June 2005, FR v. only) Second FIA statement (June 2005) Read the relevant WIPO documents...