Thirty-ninth Report of Session 2012-13 - European Scrutiny Committee Contents

12   International protection for audiovisual performances



+ ADD 1

COM(13) 109

Draft Council Decision on the signing, on behalf of the European Union, of the WIPO Treaty on Audiovisual Performances

Legal base

Date originated

Date deposited in Parliament

Articles 114 and 218(5) TFEU;QMV

4 March 2013

15 March 2013

DepartmentBusiness, Innovation and Skills
Basis of considerationEM of 28 March 2013 and Minister's letter of 10 April 2013
Previous Committee ReportNone
Discussion in CouncilNot known
Committee's assessmentLegally important
Committee's decisionCleared


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:


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).


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.


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.


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."


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.


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.


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.


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.


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 Back

previous page contents next page

© Parliamentary copyright 2013
Prepared 1 May 2013