Introduction:
Audio-visual work is any work that has images put together continuously, with or without any sound, to create a moving display through devices. Examples of Audio-visual work are feature films, trailers, or short videos. Beijing Treaty on Audio-visual work also known as BTAP is a treaty formed to protect the intellectual property rights of audio-visual work. It is the first multilateral treaty acknowledging the intellectual property rights of the performers of audio-visual work. There are 34 contractual parties under this treaty, some parties are Japan, UAE, and Indonesia. Indonesia is the last party that joined this treaty. The treaty is based on the 1966 WIPO Treaty for audio recordings, WIPO (World Intellectual Property Rights Organisation, is a UN agency based in Geneva; it deals with intellectual property rights and forms norms related to this field with member states) BTAP was adopted in Beijing during the Diplomatic Conference on the protection of audio-visual performances. It came into force in China on 28 April 2020. The treaty provides economic and moral rights to the performers and is the only treaty that provides both these rights. Even though the treaty has come into force in China, many parties have not ratified the treaty like the EU and United States.
Importance of BTAP
It provides moral and economic rights which enhances the workspace of the producers. It allows individual artists to collect income from producers in matters of international distributed audio-visual work. With the moral rights provided under this treaty, the matters such as lack of attribution and distortion can be addressed. It is a major need as it boosts the rights of the performer. It also safeguards the rights of the performers against illegal or unauthorized use of their performances. With the economic rights, the income of actors will also increase. With the rights provided by this treaty, the rental prices might increase and the trading of audio-visual work might decrease therefore increasing the income of the performers.
Difference between BTAP and other treaties made by WIPO
Other treaties like the Rome convention do not provide moral rights to the performances and do not mention the exclusive rights given under BTAP to the performers. An example of the exclusive right is the right to make the content available. This is not mentioned in other treaties. Adding to this BTAP exclusively protects the performers and their audio-visual work unlike other treaties like the Rome Convention. Another major difference between other treaties and this treaty is that the extent of protection available to the performers is different and the application of the treaty also differs with the situations and time it can be applied at. Another sparking difference is that the transfer of economic rights is not present in other treaties but it is present in BTAP. BTAP allows performers to transfer their economic rights.[1]
Difference between ratified and signed parties of the treaty
Only countries that have signed the treaty can further ratify it. Signing the treaty does not impose obligations on the parties, this means that even though they do not follow the main purpose behind the treaty and take actions that are different from the objective of this treaty it will not be accountable to any sort of obligation. But is expected to refrain from such acts in good faith.
One should indeed ratify the treaty post the party signs it but it is often seen that this does not take place and usually, they do not ratify the treaty.
Economic Rights and Moral Rights provided under BTAP
BTAP mentions 4 kinds of economic rights that are given to the performers of audio-visual work. These are:
- the right of reproduction;
- the right of distribution;
- the right of rental; and
- the right of making available.
These are the rights that are available for fixation audio-visual work, which means their performance is fixed under this.[2]
Right of Reproduction: This right allows performers to authorize the direct or indirect reproduction of the audio-visual work in any form. This means that the performance can be reproduced by other individuals when the authorization is given by the performers.
Right of Distribution: This right allows the performers to give people the original or copy of the performance by either the sale or ownership of the same. This allows the performers to provide individuals with their performance either by selling it or by transferring the ownership.
Right of Rental: It allows the performers to give the rental performance to the public the copy or original work of audio fixation.
Right of Making Available: This allows the performers to make the work available to the public so that they can access it from wherever they are. It covers access through the internet. This access is very necessary considering the demand for digital distribution of creative works because of the technological developments made in recent times.
The rights available to the unfixed audio-visuals work are three in total. These are:
- the right of broadcasting (except rebroadcasting);
- the right of communication to the public (except broadcast performance); and
- the right of fixation.
Moral rights are those rights that allow the performer to claim the performance of the audio-visual work i.e. the right of paternity, object to any distortion or modification of the original work considering the audio-visual fixation which is the right of integrity. These rights allow the performers to hold onto their reputation and therefore be independent of the performer. This means that even though there is a transfer of ownership these rights are exclusively present to the performer and will be protected as they were before.[3]
The treaty also allows the performers to broadcast and communicate their performances in audio fixation visuals. Instead of broadcasting rights, the parties will receive a right to equitable remuneration for any direct or indirect use of performances fixed under audio-visual work. The contracting parties have the right to either restrict this or refrain from using this right.
Economic Rights: Exclusive Rights and Statutory Licenses
Economic rights are transferred once the transfer of ownership occurs. They are broadly divided into two parts: exclusive rights and statutory licenses. Exclusive rights allow performers to authorize prohibition of the misusage of their performance done without any legal authorization of the same. Statutory Licenses are for practical purposes of mass usage, in these specific situations continuous authorization of the performer is not required as it is difficult to keep a note of the same. Most of the economic rights under BTAP are exclusive. Under the statutory licenses under BTAP, there is a requirement of granting rewards to the performers and a check on this is done by the management organizations. [4]
Transfer Rights
The contracting parties can under their national laws with the consent of the performers allow the transaction of the exclusive economic rights to the producer of the audio-visual. The performer will get some sort of reward like royalty for their performance irrespective of the national laws as provided by the treaty. [5]
Exceptions
Article 13 of this treaty provides the exceptions for the same. It is based on the three-step test under the Berne Convention. The agreed statement of WCT applies the same to the BTAP which means that the limitations under the national law in connection with the Berne Convention may apply to the digital environment. It allows the parties to form their specific limitations and exceptions that apply to the digital world. An agreed statement mentions that there is nothing that would restrict the contracting party to form effective and important measures to ensure that the beneficiaries enjoy the limitations only in cases when the beneficiary has legal access to it.[6]
The interplay of the Treaty and The Parties
The treaty requires that the contracting parties have to agree with the objective and purpose of the treaty and refrain from indulging in the acts that are opposing the same. They may choose to not follow all the exclusive rights in respect to their national laws but cannot choose to refrain from all of them. In addition to this, the contracting parties before enforcing the treaty can make some changes in the application of the same and other parties can do the same in accordance with the changes but these changes cannot be done post the party decides to enforce the treaty.
The treaty has also formed an Assembly of Contracting Parties which will look into the matters of maintenance and the development of the laws under this treaty.
India’s role in the BTAP
Even though India has shown that it understands the importance of the protection that should be given to the performers of the audio-visual work and has a considerable amount of stake in many copyright-oriented industries, it is not a part of many copyright treaties that have been formed in the past. For example, WIPO protects the rights of authors and performers in the digital world even though it is a land of such great culture and art. It has not acceded to BTAP, even though the treaty provides such major benefits to the performers.
Conclusion
With BTAP providing performers with both economic and moral rights for their audio-visual performance, the workspace of these performers will improve. Such a treaty was indeed a major need because none of the treaties signed before included both of these rights. Both, moral and economic rights are must haves for the performers. It protects them from the evils existing in this field. Through this treaty, the content will be legitimate and will mean a stop to unauthorized or illegal usage of the audio-visual work. It is also important to note that the treaty might go against the already formed domestic copyright laws and therefore every country should be vigilant in making sure that it is not used to replace their existing laws that have been established.
References:
[1] https://beijingtreaty.com/about/what-is-the-beijing-treaty/
[2] Id
[3] Id
[4] Id
[5] Id
[6] Id
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