Closed consultation

Consultation on the options for implementing the Beijing Treaty on Audiovisual Performances

Updated 7 February 2024

1. Introduction

The UK has a strong audiovisual sector. The Gross Value Added (GVA) of the UK’s film industry was £7bn in 2018, representing 6% of the GVA of its creative industries ^{[footnote 1]}.

The UK’s copyright framework is central to the UK’s thriving audiovisual industry, ensuring that those who invest time, effort and money into making and distributing audiovisual works, are able to commercialise them.

Domestic law on copyright and performers’ rights works alongside the international framework, which includes treaties, such as the Beijing Treaty on Audiovisual Performances (“The Beijing Treaty”), which was designed to provide additional intellectual property rights in audiovisual performances. These include performances by actors, musicians, dancers and other performers that are incorporated into films, television programmes and other audiovisual recordings.

The government intends to ratify the Beijing Treaty to help performers control how their audiovisual performances are used and improve their ability to secure appropriate remuneration. Whilst the UK already meets the majority of the standards required by the Treaty, some changes in law through secondary legislation are needed. There are also several options under the Treaty which, if adopted, would also have implications on domestic legislation.

In spring 2021, the government sought views and evidence in a Call for Views, which this consultation builds on by seeking views and evidence on specific options for the implementation of the Treaty. It is also an opportunity to comment on the practical and legal aspects of the proposed draft regulations needed to implement the required changes to UK law; these can be found at Annex A.

An Impact Assessment - Annex B has been prepared to support this consultation.

How to respond to this consultation

The consultation will run for eight weeks until 9 November 2023. Respond to the consultation by filling in the response form on Citizen Space, or by email to BeijingTreatyConsultation@ipo.gov.uk. When responding, please state whether you are responding as an individual or representing the views of an organisation.

Confidentiality and data protection

The government intends to publish responses to this consultation, which may include your personal information such as your name, email address and where you work. This is in line with the Intellectual Property Office’s (IPO’s) approach to processing personal data through consultation, which is explained in more detail in our Privacy Notice. If you want the information that you provide to be treated as confidential please tell us, but be aware that we cannot guarantee confidentiality in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not be regarded by us as a confidentiality request.

Introductory questions

Question 1. What is your name
Question 2. What is your email address
Question 3. What is your organisation

2. Background to the Beijing Treaty on Audiovisual Performances

This international agreement aims to provide enhanced intellectual property rights specifically for performances in audiovisual fixations such as films, television programmes and music videos.

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

• exclusive rights for performers to control the copying, commercial rental, distribution, and making available online of their performances in audiovisual fixations

• moral rights for audiovisual performers to be attributed and to prevent certain 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

• whether rights are extended to fixed performances that exist at the time of entry into force of the Treaty or to performances fixed after the entry into force

The UK supports the Beijing Treaty, which will help secure reciprocal benefits for its audiovisual performers when their performances are used in other countries that have implemented it. The UK was unable to implement and ratify the Treaty when it was part of the EU as this fell into the EU’s sole competence. It will now do so as a sovereign nation and its aims are to:

• secure rights in other countries for UK audiovisual performers

• increase remuneration from other countries for UK audiovisual performers

The government received 26 responses to its Call for Views from a range of stakeholders. Respondents broadly supported the government’s intention to implement the Beijing Treaty; however, views on how to do so varied.

The majority of respondents welcomed further consideration and consultation on these changes.

3. Evidence from the Call for Views on the UK’s proposed approaches to implementing the Beijing Treaty

This section of the consultation document provides an overview of the evidence gathered from the Call for Views and sets out the government’s preferred way forward based on its analysis of the evidence.

3.1 Summary

The UK will need to make changes to its copyright framework to implement and ratify the Treaty. It must introduce moral rights for performances in audiovisual fixations and consider whether and how to implement the optional provisions set out in the Treaty, which deal with the broadcasting and communication to the public of audiovisual performances, how rights are transferred and whether rights are awarded to fixed performances that existed before the Treaty comes into force.

3.2 Evidence gathered from the Call for Views

3.2.1 Economic rights for broadcasting and communication to the public

Currently, the UK does not provide any exclusive rights for broadcasting and communication to the public for fixed audiovisual performances. In other words, once a performer has agreed to their performance being incorporated in an audiovisual fixation, they do not have a statutory right to prevent it being broadcast or communicated to the public, or to receive remuneration for these uses.

The Beijing Treaty offers various options around the broadcasting and communication to the public of audiovisual performances, which make it possible for a Treaty country to:

• provide exclusive rights for the performer to prevent or authorise the broadcasting or communication to the public of performances in audiovisual fixations

• introduce 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

Responses to the Call for Views

Stakeholder views on performers’ economic rights, and how and whether to amend them, fell into two categories. Producer and broadcaster stakeholders advocated no or minimal changes, while performers largely sought a stronger rights framework.

Most responses commented on the UK’s system under which collective bargaining agreements (CBAs) are negotiated by performers’ unions and producers. CBAs set out the terms under which performers are engaged, including their remuneration, which is usually an upfront payment. They are said to benefit both performers and producers: the former are able to secure more favourable terms through collective rather than individual bargaining, while the latter get certainty and simplicity in negotiating and securing the rights they need.

Producers and broadcasters contended that CBAs already achieve fair remuneration for performers (including ongoing payments), while allowing producers to secure the rights they need for the effective and efficient financing of productions and commercial activities that follow. They argued that fair remuneration is achieved through CBAs even where performers do not enjoy statutory protection, as in the case of broadcasting and public playing of audiovisual performances. Some also noted that, while adherence to CBAs is not mandatory in the UK, it is often the market reality, given the sophisticated representation of performers and the competitive market for performers in the UK.

These stakeholders point to the overall strength of the UK’s screen sectors as evidence of the effectiveness of existing arrangements under the CBA system. Accordingly, they recommend that no changes be made to performers’ economic rights in the UK. They particularly cautioned against introducing unwaivable rights to equitable remuneration, which they say would disrupt longstanding and carefully negotiated contracts, making it difficult to value the rights in productions, which could damage their financing. They argue that it would interfere with an individual performer’s ability to negotiate the form of remuneration that is best for them (e.g. upfront fees, residuals or royalties).

Other respondents, such as performers and some Collective Management Organisations (CMOs), highlighted the strength and effectiveness of the collective bargaining system but pointed to certain limitations. First, CBAs are not always used, for example, in foreign productions in countries with less well-developed collective bargaining systems and, indeed, for some UK productions. Additionally, respondents felt that even where CBAs are used, they permit the buy-out of rights for flat-fees that are not proportionate to the actual success of a work; they may not provide additional remuneration for playing in public of performances (which may, in any case, be outside the control of the producer); and performers rely on producers to accurately and transparently pay the royalties due to them.

Several respondents noted that many other types of workers, beyond the traditional ‘creative industries’, are classified as performers under UK law and the Treaty. These include teachers and lecturers, the recording of whose performances increased significantly since the introduction of pandemic-related restrictions. These workers, and even others in the creative industries (such as dancers), have less knowledge of their rights as performers, thus making them less able to use and enforce them.

Most responses from performer-related groups (and, notably, a trade association of audiovisual producers) went further in recommending the introduction of unwaivable rights of equitable remuneration for performers, paid by users and only assignable to collecting societies.

Other performer stakeholders, particularly musicians, called for broader rights to equitable remuneration, covering all broadcasting and communication to the public, as well as the making available of audiovisual (and audio) performances. These stakeholders said that, in practical terms, unwaivable rights to equitable remuneration are more valuable than exclusive rights that can be assigned away for one-off payments; and noted the success of the UK’s existing right to equitable remuneration for the broadcasting and public playing of performances in sound recordings as evidence of the effectiveness of this approach.

3.2.2 Moral rights

Since 2003, UK law has provided moral rights of identity and integrity to performers for their live performances and performances in sound recordings, but not for their audiovisual performances. ^{[footnote 2]} The Beijing Treaty requires parties to provide these moral rights to audiovisual performances, so the UK must extend its existing moral rights framework to audiovisual performances before it can ratify the Treaty.

The Beijing Treaty requires countries to provide moral 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.

Responses to the Call for Views

Respondents agreed that amendments to the UK’s moral rights framework are necessary to comply with Article 5 of the Treaty, and most were supportive of levelling the playing field between audiovisual performances and audio performances.

Stakeholders were in broad agreement that introducing moral rights for audiovisual performers need not be disruptive to the audiovisual sector, so long as the principles that apply to the UK’s existing moral rights, for example that the rights are subject to exceptions and that they can be waived, must also apply to the new rights.

The evidence was that the right to object to derogatory treatment should be aligned with the principles in the Treaty, in particular, that it does not cover modifications made in the course of ordinary exploitation of a performance; and that it applies only to changes that are objectively prejudicial to the performer’s reputation in a substantial way. Several stakeholders also noted that collective bargaining agreements already contain credit provisions that effectively provide for a right of attribution and have well-developed dispute mechanisms.

Two broadcasters also called for the broadening of an existing exception to the moral right of integrity. This permits the BBC to modify a performance where necessary for, among other things, reasons of good taste or decency. The broadcasters said it should cover all licensed broadcasters and modifications made for certain other, similar reasons.

3.2.3 Moral rights and freedom of expression

Freedom of expression is important to the UK government, so we want to ensure that the introduction of moral rights for performances in audiovisual fixations is implemented in a way that does not act as an unnecessary barrier to or have unintended consequences for freedom of expression.

Responses to the Call for Views

We tested this at the Call for Views stage ^{[footnote 3]} and received no evidence then that introducing moral rights for audiovisual performances would cause any undue restrictions on freedom of expression. These responses are consistent with the broader landscape since the introduction of moral rights in 1988. The paucity of litigation in this area suggests that this is unlikely to be an issue in practice.

In particular, stakeholders felt that the narrow applicability of moral rights in UK law and the restrictions on the rights under the Treaty were unlikely to impede freedom of expression.

One academic suggested that existing ‘fair dealing’ exceptions, which apply to performers’ economic rights, should also apply to their moral rights, though others thought this unnecessary, given the narrow scope of moral rights compared to economic rights.

Additional evidence

The existing case law confirms there is a high bar for breaching moral rights: the mere distortion or mutilation of a work is not enough; there would need to be evidence to show that distortion or mutilation was prejudicial to the reputation or honour of the author. ^{[footnote 4]} Likewise, the Beijing Treaty is specific that the rights “to object to any distortion, mutilation or other modification” of performances are “concerned only with changes that are objectively prejudicial to the performer’s reputation in a substantial way”. Merely showing and commenting on a performance, in whatever way, seems unlikely to be within scope. The exception for news reporting is being extended to audiovisual performers as part of these proposed changes.

Based on these factors, it would appear that the proposed approach to implementing the Treaty would not pose any risk to freedom of expression. The law would provide the same moral rights as those currently provided to other types of creators and performers: audiovisual performers will simply have existing moral rights extended to their performances and would not succeed in objecting to the use of their audiovisual works as part of any reasonable comment, criticism or satire where the use is not objectively prejudicial to the reputation of the performer.

We would like to test this conclusion by inviting responses on moral rights and how they interact with freedom of expression in this consultation. This will ensure our final approach robustly protects freedom of expression based on the best possible evidence.

Question 4 Would the extension of moral rights to performances in audiovisual fixations result in any problems for freedom of expression? If so, in what ways and how could this be resolved?

3.2.4 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.

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.

Responses to the Call for Views

Stakeholder views on how rights are transferred or licensed aligned with their views on economic rights.

Producers’ groups stated that, to allow them to finance, distribute and exploit their films with certainty and clarity, they need to be able to accrue and act as a ‘one-stop-shop’ for all rights involved in a production. Critical to this is the principle of contractual freedom, under which performers can freely assign their rights. They recommended that existing arrangements be maintained.

Other stakeholders, including performers’ groups, also noted the importance of this principle and sought a balance between contractual licensing and statutory rights to remuneration. Some stakeholders also suggested strengthening the position of performers in relation to assignments and licensing by, for example, precluding the transfer of rights in future performances and specifying minimum criteria for consent for use of a performance (e.g. requiring written consent).

4. Options for implementation

Based on the evidence gathered from the Call for Views, this section considers the different approaches the UK could take when implementing the Beijing Treaty. Our main aim is to secure similar benefits for UK audiovisual performers when their performances are used in other countries. In doing this we aim to support the UK creative industries more widely, allowing for fair rewards for performers so they are able to contribute to further audio and audiovisual performances.

The government has considered a number of options which are set out in the Impact Assessment at Annex B. The government considered the views and evidence received as part of the Call for Views and further analysed the impacts of each option. Based on this, we have two preferred options for implementing the Treaty that we would like to consider further as part of this consultation:

• Option 1B: Make necessary changes and introduce exclusive rights of broadcasting and communication to the public for audiovisual performances

• Option 1C: Make necessary changes and introduce right to equitable remuneration for broadcasting and communication to the public of audiovisual performances

Option 1B: Make necessary changes and introduce exclusive rights of broadcasting and communication to the public for audiovisual performances

This option would involve amending UK law to provide performers with the exclusive right to authorise the broadcasting or communication to the public of their audiovisual performances in other Treaty countries.

We propose that this right would be subject to the same conditions as existing exclusive rights in audiovisual performances, such as the performer being the first owner and the right being transferrable only via signed contract.

Where other Treaty countries have decided to implement the option to extend remuneration rights for the broadcasting and communication to the public of audiovisual performances, UK nationals may be in a better position to secure remuneration for their works from these countries, though this may still depend on how they interpret and apply the national treatment requirements of the Treaty.

The Treaty permits the exclusive right to be provided for all existing performances, and for those created after the Treaty comes into force in the UK. We propose that the exclusive right applies to both new and existing performances but without prejudice to any existing agreements or assignments or acts done before the right is introduced.

Many respondents to the Call for Views suggested that this could have a number of benefits namely: ensuring performers have the right to control these uses of their performance, unless and until they provide consent; giving a statutory backing to existing contractual practice relating to the licensing of these uses; and ensuring UK performers are entitled to the fullest protection in respect of these uses in other countries that join the Treaty and apply its provisions to existing performances.

Most respondents to the Call for Views considered that the UK collective bargaining system works well and already results in appropriate and fair remuneration. Some respondents felt that an exclusive right for audiovisual performances would help support performers via statutory backing that goes beyond the contractual limits of the collective bargaining system.

Domestically, we believe there would be minimal cost impacts and minimal impacts to existing agreements and licensing costs under this option, which is consistent with other performers’ rights. There may be some small upfront costs as the new exclusive rights are introduced but we believe that these, and the changes to existing systems, will be minimal as we understand, in the majority of cases, broadcasting and communication to the public are already priced into performers’ contracts.

As such, contractual negotiations between performers and producers and the resulting remuneration for performers are unlikely to be affected. For this reason, we do not expect licensing costs for users (e.g. broadcasters) to be affected as a result of this option as we believe performers are likely to transfer these rights to producers in their contracts under the current system. It may also provide additional legal clarity to those performers not currently covered by contracts and may not have the right to prevent the broadcasting or public playing of audiovisual recordings of their performances.

There is a risk that this option could lead to more licensing requirements. However, it is unlikely that performers will have a legal basis to seek licensing fees from users as these rights are likely to be transferred from performers to producers as part of their contractual arrangements.

Internationally, some Treaty countries provide rights to equitable remuneration for the broadcasting and communication to the public of audiovisual performances. This option may lead to UK performers qualifying for these rights, but the level of remuneration will depend on how those countries interpret and apply national treatment under the Treaty.

Questions on Option 1B

Question 5. What evidence do you have on the impact of this approach on your organisation or members? How would revenues generated by existing performers rights be affected?

Question 5. Do you agree that the exclusive right of performers to authorise the broadcasting or communication to the public of audiovisual performances should be provided to all existing performances without prejudice to any existing agreements or assignments or acts done before the right is introduced? Please explain.

Question 7. If the UK opts to cover fixed audiovisual performances that exist at the time the treaty comes into force, what impact do you anticipate this will have on existing contracts both in the UK as well as other Treaty countries? Under this option what new administrative costs do you anticipate for domestic and international works being broadcast in the UK? Could these be alleviated if the UK chose to only apply the treaty to new fixed audiovisual performances?

Question 8. How will this option help performers get fair remuneration for their work, for example through proportionate buy-out or flat fees, without the use of Collective Bargaining Agreements? Please provide evidence to support your views.

Question 9. Do you anticipate this option will increase licensing requirements for the use of audiovisual works in the UK? For example, do you anticipate the creation of new forms of licensing for showing TVs in public venues? What impact would this have on existing licensing bodies?

Question 10.Could this option provide additional incentives to produce audiovisual works? Please explain.

Question 11. Will licensing costs or access charges for users (e.g. broadcasters) change as a result of this option? Please explain.

Question 12. How would this option impact the competition in the UK economy for audiovisual works?

Question 13. How would this option impact the UKs international trade (i.e., increase/decrease exports, increase/decrease imports)?

Question 14. How would this option impact the incentives in the UK to produce audiovisual works?

Question 15. Feel free to include any further concerns, observations or evidence that are relevant to this option but not adequately covered by the questions above.

Option 1C: Make the necessary changes and introduce right to equitable remuneration for broadcasting and communication to the public of audiovisual performances

This option would involve introducing rights for performers to be paid equitable remuneration for the broadcasting and/or communication to the public of their audiovisual performances, or some subset of those uses.

We propose that these rights be non-waivable and non-transferrable (except to a collecting society for the purposes of administering the right on the performer’s behalf).

Overall, this option would guarantee performers a level of remuneration in both the UK and other Treaty countries that also choose to adopt equitable remuneration. It would also ensure that, regardless of individual contractual negotiations, performers would receive fair remuneration for the broadcasting and communication to the public of their performances. It could also lead to a reduction in administrative burdens of paying royalties.

Some respondents to the Call for Views thought equitable remuneration rights could disrupt longstanding negotiated agreements, which they argue already achieve fair remuneration. They highlighted that further requirements to provide remuneration would risk leaving producers with less to invest in audiovisual works, particularly where the work is not commercially successful. Other respondents felt that there was not enough evidence to suggest whether rights to equitable remuneration would recognise the full value of a performer’s work.

Domestically, this option could have significant impacts. Whilst this option could reduce the administrative burden of paying royalties by removing intermediaries from the process, it could also lead to upfront costs for performers, producers and users of works being high as contracts would need to be renegotiated to include this new statutory remuneration. The costs of paying the remuneration may lead to higher costs for users, consumers and producers who may need to bear these costs. This option could also impact performers if a reduced contractual remuneration were to be agreed.

Internationally, this option will result in UK audiovisual performers becoming eligible for equivalent remuneration rights in other Treaty countries that provide them. The level of remuneration will depend on which countries choose to join the Treaty and whether they choose to provide a right for broadcasting and communication to the public.

Questions on Option 1C

Question 16. What evidence do you have on the impact of this approach to your organisation or members, particularly in comparison to revenues generated by existing performers’ rights and on collective representation for performers? In particular, what would the impact be on existing negotiated agreements and the costs that might be incurred by your organisation?

Question 17. How will this option impact on the administrative systems of paying royalties? What would the impacts be on upfront costs for performers, producers and users? Who would bear these costs?

Question 18. If additional costs are incurred by your organisation, how would these be funded? For example, would licensing costs to users increase as a result?

Question 19. To what extent do you think the reciprocal effect of this option would increase the flow of revenue from other Treaty countries to UK performers?

Question 20. If the UK opts to cover fixed audiovisual performances that exist at the time the treaty comes into force, what impact do you anticipate this will have on existing contracts both in the UK as well as other Treaty countries? Under this option what new administrative costs do you anticipate for domestic and international works being broadcast in the UK? Could these be alleviated if the UK chose to only apply the treaty to new fixed audiovisual performances?

Question 21. The Beijing Treaty doesn’t require publication for commercial purposes as a condition to receive equitable remuneration. However, it is there for sound recordings. Should the Regulations distinguish between commercial publication and non-commercial publication? What impact would this have?

Question 22. How would this option impact the competition in the UK economy for audiovisual works?

Question 23. How would this option impact the UKs international trade (i.e., increase/decrease exports, increase/decrease imports)?

Question 24. How would this option impact the incentives in the UK to produce audiovisual works?

Question 25. Feel free to include any further concerns, observations or evidence that are relevant to this option but not adequately covered by the questions above.

4.1 Other options

The evidence from the Call for Views supported the implementation of the Beijing Treaty via Option 1B or Option 1C, our preferred options. Although the following options are not the government’s preferred options, we also welcome views on these.

Option 1A: To maintain the UK’s existing framework on audiovisual performers’ rights

Under this option, we would make no legislative changes to the UK framework of economic rights in audiovisual performances.

Other Treaty countries would still be required to provide national treatment in respect of the protections specified in the Treaty however, this would not include those relating to broadcasting and communication to the public.

This option will not achieve our aims and is discounted.

Option 1D: Make necessary changes and introduce rights to equitable remuneration for the making available online of audiovisual performances

This option would involve introducing rights for performers to be paid equitable remuneration for the making available online of their audiovisual performances.

We propose that these rights would be non-waivable and non-transferable (except to a collecting society for the purposes of administering the right on the performer’s behalf).

Like Option 1C, this option could lead to significant upfront costs as performers, producers and users would need to renegotiate contracts to account for the new statutory remuneration. The costs could be transferred to users such as video-on-demand platforms, consumers, producers and ultimately performers themselves if contractual remuneration is decreased.

Questions on Option 1D

Question 26. What evidence do you have on the impact of this approach to your organisation or members, particularly in comparison to revenues generated by existing performers rights and on collective representation for performers?

Question 27. Who would cover the costs of this option?

Question 28. What evidence do you have of how other Treaty countries provide equivalent rights?

Question 29. Could this option provide additional incentives to produce audiovisual works? Please explain.

Question 30. If the UK opts to cover fixed performances that exist before the treaty comes into force; what impact do you anticipate this will have on existing contracts both in the UK as well as other Treaty countries? Under this option what new administrative costs do you anticipate for domestic and international works being broadcast in the UK? Could these be alleviated if the UK chose to only apply the treaty to new performances?

Question 31. How would this option impact the competition in the UK economy for audiovisual works?

Question 32. How would this option impact the UKs international trade (i.e., increase/decrease exports, increase/decrease imports)?

Question 33. How would this option impact the incentives in the UK to produce audiovisual works?

Question 34. Feel free to include any further concerns, observations or evidence that are relevant to this option but not adequately covered by the questions above.

5. Draft regulations

The following section provides an opportunity to comment on the draft legislation that would be used to implement Option 1B: To introduce exclusive rights covering the broadcasting and communication to the public of audiovisual performances and Option 1C: To introduce right to equitable remuneration for broadcasting and communication to the public. Our proposals to implement the moral rights which are needed in order to implement and ratify the Beijing Treaty are also included. Draft legislation can be found in Annex A.

Option 1B: To introduce exclusive rights covering the broadcasting and communication to the public of audiovisual performances

This option would involve changes to UK law via secondary legislation under section 212A of the Copyright, Designs and Patents Act 1988 to give full effect to Article 11 of the Beijing Treaty in UK law. This will be done by creating a standalone “economic right” in Chapter 2 and expanding “moral rights” in Chapter 3 to apply in relation to the broadcast and communication to the public of all recordings.

Option 1C: To introduce right to equitable remuneration for broadcasting and communication to the public

This option would involve changes to UK law via secondary legislation under section 212A of the Copyright, Designs and Patents Act 1988 to give full effect of Article 11 of the Beijing Treaty in UK law. This will be done by providing for the right to equitable remuneration for exploitation of audiovisual fixations in Chapter 2 and expanding “moral rights” in Chapter 3 to apply in relation to the broadcast and communication to the public of all recordings.

The draft regulations are subject to changes dependent upon the comments received as part of this consultation and further review.

Questions on the Draft Regulations

Question 35. Is this the most appropriate way to achieve the desired objective? Please explain.

Question 36. Do you agree that the approach taken in the draft regulations is consistent with the Government’s preferred approach? Please explain.

6. Extension of protection to foreign nationals

The Beijing Treaty requires that members provide the protections specified in the Treaty to nationals and residents of countries that are members of the Treaty. In the case of rights covering broadcasting and communication to the public, member countries are only required to provide these rights to nationals and residents of countries that provide equivalent rights.

Respondents to the Call for Views were generally in favour of the extension of protection to nationals of other countries that join the Treaty, as a matter of fairness and also to comply with the Treaty.

We propose amending UK law to provide exclusive rights in live and audiovisual performances, except those covering broadcasting and communication to the public of audiovisual performances (which are covered in options 1B and 1C), to nationals and residents of countries that are members of the Beijing Treaty.

If we were to implement Option 1B or 1C, these rights will need to be extended to nationals of Treaty countries that provide equivalent rights.

We will do this via an Order in Council.

Questions on extension of protection to foreign nationals

Question 37. Are there any potential reciprocity issues under Article 11 that we haven’t considered? What evidence do you have to support this?

Annexes

• Annex A – Draft Regulations

• Annex B – Impact Assessment

1. BFI statistical yearbook 2020, pg. 218, available online ↩

2. These are set out in Chapter 3 of Part II of the Copyright, Designs and Patents Act 1988 (the CDPA)). ↩

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

4. Confetti Records (a firm) v Warner Music UK Ltd (trading as East West Records) [2003] EWCH 1274 ↩