Closed consultation

Beijing Treaty on Audiovisual Performances: Call for views

Published 23 April 2021

Introduction

An effective and balanced copyright and performers’ rights framework is central to the success of our creative industries. It allows creators and investors to devote time, effort and money into making and distributing new creations, with confidence that they will be remunerated for their use. This benefits creators, right holders, users, and the public alike.

The UK’s domestic law on copyright and performers’ rights works within the international copyright and related rights framework. This comprises treaties dealing with rights of authors, performers, producers and broadcasters.

The Beijing Treaty on Audiovisual Performances is an international agreement to provide intellectual property rights in audiovisual performances. These include performances given by actors, musicians, dancers and other performers that are incorporated in films, television programmes and other audiovisual recordings.

The UK supports the Beijing Treaty and signed it in 2013 but was not able to implement or ratify it independently while a member of the EU. Now that we have left the EU, the government is resolved to do so.

UK law already meets most of the standards required by the Treaty. However, there are some areas which require us to change our law. The Treaty also contains optional provisions which countries can choose whether and how to implement.

Our aims for performers’ rights and the Beijing Treaty

The government supports a performers’ rights framework that allows performers to secure appropriate remuneration for the use of their performances.

This is about fair rewards for performers. But it is also about supporting the UK’s creative industries more widely. Royalties support performers while they work and train, allowing them to contribute to further audio and audiovisual productions.

An important aim of joining the Treaty is to secure similar benefits for UK audiovisual performers when their performances are used in other countries. But the Treaty allows countries some flexibility when implementing it, and we want to ensure that our implementation is consistent with our aims for the performers’ rights framework.

This means balancing the interests of performers with the interests of those who produce and invest in audiovisual productions, as well as users and the public.

To do this, we need to understand the potential impacts of the Treaty. Your views, expertise and evidence will help us with this.

This document summarises the main provisions of the Beijing Treaty. It then sets out questions on certain issues where we are seeking your evidence and views. In some areas, quantitative evidence (such as monetised costs or benefits of introducing new protections) will be most useful. Where impacts are harder to quantify, qualitative descriptions may be more appropriate. In all cases, the more detail you can provide, the better we can understand your views.

You can respond to this call for views at BeijingTreatyCfV@ipo.gov.uk.

The government intends to publish responses to this call for views, which may include your personal information such as your name, email address and where you work. This is line with the IPO’s approach to processing personal data through consultation, which is explained in more detail in our Privacy Notice. If you do not wish for your personal details to be published, please let us know when you respond and we will remove them prior to publishing responses.

The Beijing Treaty on Audiovisual Performances

The Beijing Treaty is the first international agreement to provide rights specifically for performances in audiovisual fixations. Audiovisual fixations are visual or visual and aural recordings in any medium from which moving pictures can be produced. This includes films, television programs, and music videos.

The Treaty sets out minimum standards of protection for audiovisual performances. These include:

• exclusive rights for performers to control the copying, commercial rental, distribution, and sharing online of their performances in audiovisual fixations
• moral rights for audiovisual performers to be attributed and to prevent derogatory treatment of their performances
• protections for electronic rights management information (for example metadata in video files that identifies the performer) and technological measures (such as copy- and access-control software) used by right holders

The Treaty also contains optional provisions which countries can choose whether and how to implement. These cover:

• protections against broadcasting and communication to the public of performances in audiovisual fixations
• how rights can be transferred between audiovisual performers and producers of audiovisual fixations

Moral rights

Moral rights differ from other rights. Their purpose is not to protect the performer’s economic interests but to protect their character.

The Beijing Treaty requires countries to provide moral rights to performers for their live performances and performances in audiovisual fixations. These are the rights for the performer to:

• claim to be identified as the performer, except where omission is dictated by the manner of the use (‘the attribution right’) and
• object to any distortion, mutilation or other modification of their performance that would be prejudicial to their honour or reputation, taking due account of the nature of audiovisual productions (‘the integrity right’)

The integrity right does not prevent modifications to a performance that are made in the normal course of its exploitation, such as editing, compression, dubbing, or formatting, in existing or new media or formats, and that are made in the course of a use authorised by the performer. The right only applies to modifications that are objectively prejudicial to the performer’s reputation in a substantial way.

UK law already provides equivalent rights to performers for their live performances and performances in sound recordings. These are set out in Chapter 3 of Part II of the Copyright, Designs and Patents Act 1988 (the CPDA). UK law does not provide these rights for performances in audiovisual fixations.

Before we ratify the Treaty, we must introduce moral rights for performances in audiovisual fixations. We want to do so in a way that provides meaningful protection for performers while ensuring that normal use of audiovisual performances is not disrupted. We also want to ensure that freedom of expression is protected. Legitimate uses of performances for purposes such as satire, criticism, comment and news reporting should not be undermined by these new rights.

One way of introducing moral rights for audiovisual performances would be to amend Chapter 3 of Part II of the CDPA to extend the UK’s existing moral rights to audiovisual performances, without any other changes.

In your view,

1) Would this approach provide sufficient protection for audiovisual performers?

2) Would this approach result in any problems in the normal use of audiovisual performances? If so, in what ways and how could this be resolved?

3) Would this approach result in any problems for freedom of expression? If so, in what ways and how could this be resolved?

4) Do you have any other comments on the issue of moral rights for audiovisual performances?

Please provide any evidence to support your comments.

Broadcasting and communication to the public of performances in audiovisual fixations

Article 11 of the Treaty deals with broadcasting and communication to the public of performances in audiovisual fixations. This means any transmission to the public as well as showing or playing in public a performance in an audiovisual fixation. Examples include broadcasting films and television programs and screening films in a cinema.

The Treaty sets out various options around the broadcasting and communication to the public of audiovisual performances. Countries can:

• provide exclusive rights for the performer to prevent or authorise the broadcasting or communication to the public of performances in audiovisual fixations
• provide rights for performers to receive equitable remuneration for (but not prevent) the broadcasting or communication to the public of performances in audiovisual fixations
• limit these rights only to certain uses or limit them in other ways, or
• not provide these rights at all

UK law does not provide any of these rights for audiovisual performances. Once a performer has agreed to their performance being incorporated in an audiovisual fixation, they have no statutory right in the UK to prevent it being broadcast or communicated to the public, or to receive remuneration for these uses.

Before we ratify the Treaty, we must decide whether to amend existing law in this area. This means understanding whether existing arrangements are consistent with our aims for the performers’ rights framework.

We would like to hear your views on the following questions. Please provide any evidence to support your comments.

5) To what extent do audiovisual performers currently benefit when their performances are broadcast or communicated to the public, including being played in public, in the UK? Is the remuneration that audiovisual performers receive for these uses appropriate?

6) What would be the impact of introducing exclusive rights for audiovisual performers over these uses?

7) What would be the impact of introducing rights to receive equitable remuneration for audiovisual performers over these uses (similar to those already provided for performances in sound recordings under section 182D of the CDPA)?

8) What approach would you want the government to take and why?

Transfers of rights

UK law allows most performers’ rights to be transferred by contract. This allows the producer or distributor of films, sound recordings and other collaborative works to purchase the rights of performers and authors in exchange for ongoing or one-off payments. This aims to facilitate the production and distribution of collaborative works involving significant numbers of rights.

There are some limits to how performers’ rights can be transferred in UK law. Any assignment or transfer must be written and signed by the assignor for it to be effective. And some rights cannot be transferred or waived, such as the right for performers to receive equitable remuneration when sound recordings or films containing their performances are rented.

The Beijing Treaty gives countries flexibility in this area. Countries can apply presumptions in their law so that, once a performer has consented to the inclusion of their performance in an audiovisual fixation, the performer’s rights are transferred to the producer of the audiovisual fixation.

Countries are also free to provide that, even after the transfer of the performer’s rights, the performer will have a right to receive royalties or equitable remuneration for any use of their performance.

We want to ensure our law on the transfer of performers’ rights facilitates the production and distribution of audiovisual productions while allowing performers to secure appropriate remuneration.

9) In your view, should existing rules on the transfer of performers’ rights be maintained? If not, how should they be changed? Please provide any evidence to support your comments.

Protection of foreign performances

One of the aims of the Beijing Treaty is to provide international protection for audiovisual performers. It does this by requiring countries to provide the rights in the Treaty to performers who are nationals or residents of another Treaty country.

An exception to this principle applies to rights of broadcasting and communication to the public. Where a country chooses not to provide these rights in its own law, or limits them in some way, other Treaty countries can respond by limiting their protection for performers from that country.

UK law currently provides rights for performances that:

• are given by nationals or residents of qualifying countries or
• take place in a qualifying country

Qualifying countries include the UK and certain other countries but do not currently include countries that are party to the Beijing Treaty. Before we ratify the Treaty, we will need to extend audiovisual performers’ rights to nationals and residents of countries that are party to the Beijing Treaty.

We would like to hear your views on the following questions. Please provide any evidence to support your comments.

10) If the UK introduces rights of broadcasting and communication to the public for audiovisual performers, how should these apply to nationals of other countries that are party to the Beijing Treaty?

11) Do you have any other comments on how the UK should extend audiovisual performers’ rights to foreign performers or the impact of doing so?

Other issues

12) Are there any other areas where you consider it necessary for the government to take action in the course of ratifying the Beijing Treaty? Please provide any evidence to support your comments.