12 International protection for audiovisual
performances
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7489/13
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COM(13) 109
| Draft Council Decision on the signing, on behalf of the European Union, of the WIPO Treaty on Audiovisual Performances
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| Legal base
Date originated
Date deposited in Parliament
| Articles 114 and 218(5) TFEU;QMV
4 March 2013
15 March 2013
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| Department | Business, Innovation and Skills
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| Basis of consideration | EM of 28 March 2013 and Minister's letter of 10 April 2013
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| Previous Committee Report | None
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| Discussion in Council | Not known
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| Committee's assessment | Legally important
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| Committee's decision | Cleared
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Background
12.1 The WIPO (World Intellectual Property Organisation) Treaty
on audiovisual performances (the AVP Treaty) seeks to complement
the 1996 WIPO Performances and Phonograms Treaty (WPP Treaty or
WPPT)[37] in providing
the same level of international intellectual property protection
to performers for audiovisual performances as currently provided
by WPP Treaty for sound performances.
12.2 Negotiations on the AVP Treaty at an international
level started in the 1990s, with negotiations on behalf of the
EU being conducted from 2000 onwards by the Commission by way
of negotiating mandates authorised by the Council. It took until
June 2012, after intensive negotiations, for agreement to be reached
on the text of the new treaty by the Diplomatic Conference convened
in Beijing by the General Assemblies of WIPO.
12.3 The AVP Treaty is now open for signing by
the Member States of WIPO (including the UK) and by the EU. From
the point of view of EU law, the Treaty constitutes a "mixed"
or "shared" international agreement as some of the matters
covered by the Treaty fall within the competence of the EU and
others fall within the competence of Member States. Although nearly
all of the issues covered by the Treaty are already harmonised
at EU level, one issue in particular falls within the competence
of Member States and has not been harmonised: moral rights.
12.4 The draft Council Decision authorising the
Commission to sign the Treaty on behalf of the EU has been deposited,
and is accompanied by an Explanatory Memorandum by the Parliamentary
Under Secretary of State at the Department for Business, Innovation
and Skills (The Viscount Younger of Leckie) of 28 March. Appended
to the draft Decision is the text of the agreed Treaty (Addendum
1). Prior to this, helpfully, the Government had been keeping
us informed of recent progress in the negotiations of the Treaty
by way of letters dated 6 September 2011, 28 May and 25 September
2012.
The current document and the AVP Treaty
12.5 The AVP Treaty updates and clarifies the
international legal framework in respect of audiovisual performers
(for example, actors, dancers, singers and musicians) by establishing
a new set of minimum standards for their protection and remuneration
in respect of performances incorporated in an audiovisual fixation
(for example, in a film, television programme or a DVD) and ensuring
those new rights work within the digital environment. In particular,
performers are protected against unauthorised use of their performances
in audiovisual media.
12.6 In its explanatory memorandum to the current
document, the Commission explains the EU's involvement in the
Treaty (beyond being permitted to sign the Treaty pursuant to
its Article 23). The EU actively shaped the provisions of the
AVP Treaty with the aim of ensuring that EU audiovisual performers
enjoy at an international level the same level of protection,
consistent with EU acquis that is already afforded by EU
legislation. As a result, the majority of issues covered by the
AVP Treaty are already harmonised at EU level.
12.7 As already mentioned, the Treaty also provides
actors and other performers (who, under Article 3, are nationals
of or habitually resident in the Treaty signatories) with equivalent
rights to the WPP Treaty rights already available to musicians
and recording artists. As a result, the provisions of the AVP
Treaty are similar to those of the WPP Treaty (which both the
EU and the UK signed and ratified) and can be summarised as follows:
ARTICLE 4 — NATIONAL TREATMENT
12.8 Signatory countries (referred to as Contracting
Parties) are required to accord protection to audiovisual performers
on a national treatment only basis as regards the rights specifically
covered by the Treaty (exclusive rights and the right to equitable
remuneration under Article 11), and not in respect of any additional
rights granted in national law or where other Contracting Parties
have made reservations in relation to the rights covered by the
Treaty (see Articles 11 and 13).
ARTICLE 5 — MORAL RIGHTS
12.9 The Treaty requires performers to be granted
moral rights as regards live performances or performances fixed
in audiovisual fixations. These include the right to be identified
as the performer and the right to object to any distortion, mutilation
or other modification of the performance that would be prejudicial
to the performer's reputation. Moral rights are intended to protect
the personality of the performer rather than his or her economic
interests.
ARTICLES 6, 7, 8, 9, 10 AND 11 — EXCLUSIVE
RIGHTS
12.10 The Treaty also grants performers exclusive
rights with respect to their live performances and performances
fixed in audiovisual fixations. It requires performers to have
exclusive rights to authorise the:
- broadcasting and communication
to the public of their live performances, and to authorise their
recording (Article 6):
- direct or indirect reproduction of their performances
fixed in audiovisual fixations (Article 7) ("fixed performances",
their distribution (Article 8) and the commercial rental to the
public of the original and copies of the performances (even after
authorising their distribution (Article 9),
- making available to the public of recordings
of their fixed performances electronically (e.g. the on-line downloading
of a film incorporating their performance) in such a way that
members of the public may access them from a place and at a time
individually chosen by them (Article 10); and
- broadcasting and communication to the public
of their fixed performances (Article 11). Contracting Parties
can replace the right provided by Article 11 by a right to equitable
remuneration or may derogate from this right entirely.
ARTICLE 12 — TRANSFER OF PERFORMERS' RIGHTS
TO PRODUCERS
12.11 The provision relating to the transfer
of performers' rights to producers of audiovisual works (Article
12) does not impose any obligations on Contracting Parties. As
the Commission explains in the explanatory memorandum:
"As regards the transfer or rights, Contracting
Parties are given full flexibility to organise it. They may decide
for instance that, once a performer has consented to the fixation
of a performance, his exclusive rights are transferred to the
producers, unless a contract between a performer and a producer
states differently. In any event, the provision does not impose
on Contracting Parties any obligation to provide for an automatic
transfer."
ARTICLE 13 — LIMITATIONS AND EXCEPTIONS
12.12 Contracting Parties may provide for the
same kinds of limitations or exceptions in their national legislation
as they provide in respect to the protection of copyright in literary
and artistic works.
ARTICLE 14 — DURATION OF PROTECTION
12.13 The Treaty provides that the term of protection
granted to performers shall last until at least 50 years after
the fixation of the audiovisual performance.
ARTICLES 15, 16, 20 — REMEDIES AND ENFORCEMENT
12.14 The Treaty requires that Contracting Parties
ensure that appropriate remedies are provided against the circumvention
of technological protection measures used by performers in connection
with the exercise of their rights (Article 15) and against the
removal or alteration of electronic rights management information
attached to a performance fixed in an audiovisual fixation (Article
16). Contracting parties are also required to ensure that appropriate
provisions are available in national laws for the effective enforcement
of the rights covered by the Treaty (Article 20).
The Government's view
12.15 In the Explanatory Memorandum of 28 March,
the Minister comments that the AVP Treaty represents "a significant
step forward in the international protection of performers' rights"
in clarifying the international framework, strengthening of the
economic and moral rights of audiovisual performers (bringing
them in line with rights relating to sound performances) and providing
for flexibility in terms of the transfer of rights from performers
to producers.
12.16 He notes that the UK has "a significant
interest in the audiovisual industry", due to its worldwide
exports of films and television programmes and welcomes the Treaty's
strengthening of the protection of UK audiovisual performers in
overseas markets, particularly by extending that protection to
"new technological methods of exploiting audiovisual performances".
Equally, the business certainty provided, for example through
the preservation of the current "standard clause" arrangements
for the transfer of rights in the UK under the Treaty (which represents,
in the Minister's words "a good compromise" in allowing
Contracting Parties to retain their current systems), would be
welcomed by broadcasters and film-makers.
12.17 Additionally, the Minister tells us that
informal Government consultation with key stakeholders (representatives
of both producers and performers) on the Treaty from as early
as 2000 with the emergence of the first basic proposals, then
again in 2009 (when there was renewed interest in agreeing the
Treaty) and as part of an 2012 Intellectual Property Office Open
Meeting has revealed steady, positive industry support for the
proposals. He notes that "should the UK ratify the Treaty,
the dependent territories will be consulted as to whether they
wish the Treaty to also apply to them".
12.18 Finally, in terms of a future timetable
for the signing and ratification of the Treaty, the Minister comments
that although the Treaty is currently open for signing, no timetable
has been agreed for the introduction of any legislative changes.
LEGAL IMPLICATIONS FOR UK
12.19 The Minister states that although most
of the rights provided in the Treaty are already granted by UK
law, should the UK sign the Treaty some changes to UK law would
be required prior to ratification, in particular concerning the
moral rights protected by the Treaty (the right to be identified
as the performer and the right to object to derogatory treatment).
This is because these rights, not being economic rights, fall
within national, as opposed to EU, competence.
12.20 The Copyright, Designs and Patents Act
1988 as amended (CDPA) provides for moral rights for performers
in their live performances and in their sound performances —
but not in respect of performances incorporated into audiovisual
fixations. The Minister welcomes extending these existing rights
because "providing audiovisual performers with similar rights
to those currently enjoyed by performers in their sound performances
is both logical and desirable and would ensure that the law is
consistent in respect to performers' rights".
12.21 Apart from the issue of moral rights, the
Minister notes that the CDPA does not currently provide performers
with the exclusive right of authorising the broadcasting and communication
to the public of their performances in audiovisual fixations as
provided in Article 11(1) of the Treaty. However, he notes that:
"instead of these exclusive rights, the Treaty
provides that contracting parties may establish a right to equitable
remuneration for the direct or indirect use of performances fixed
in audiovisual fixations for broadcasting or for communication
to the public (Article 11(2)). Contracting parties may reserve
partially or completely from the provisions in Article 11. The
CDPA currently provides a right to equitable remuneration but
only in relation to sound recordings."
12.22 The Minister explains that the legislative
procedure to implement any changes required in the UK is still
to be determined by the Government. However, should the Treaty
be designated a Community Treaty as defined in section 1(2) of
the European Communities Act 1972, measures could be implemented
under section 2(2) of the Act by way of secondary legislation.
Minister's Letter of 10 April 2013
12.23 Subsequently the Minister has written informing
us that the Commission is intending to refer the current document
to COREPER at the end of April, with a view to signing the AVP
Treaty towards the end of May. The Treaty itself is open for signing
until June. In view of these timings, he requested that we consider
the current document at the earliest opportunity.
Conclusion
12.24 We recognise the potential
benefits to the UK film and TV industry of the AVP Treaty in facilitating
in future the worldwide export of fixed audiovisual performances.
We note the Government's support for this current proposal authorising
the EU to sign the AVP Treaty and also its own intention to sign
the Treaty on the UK's behalf, and further note that such support
is consistent with the approach taken to the previous and complementary
Treaty on sound performances (WPPT), which both the EU and UK
signed (and ratified).
12.25 The arrangements for the
implementation of changes required to UK national law have yet
to be finalised and we report the Minister's comments to the House.
However, we do not consider that there are any significant policy
or financial implications for the UK flowing from the AVP Treaty.
12.26 Mindful of that and of
the timings for the approval and signing of the Treaty, we clear
the current document from scrutiny.
37 http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html Back
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