http://ipkitten.blogspot.com/2020/05/beijing-treaty-in-africa-series-1.html
The Beijing Treaty on Audiovisual Performances (“Beijing Treaty”) entered into force on 28 April 2020 (3 months after the 30th Contracting Party had submitted its instrument of ratification or accession to WIPO). It now behoves on Contracting Parties to implement the treaty or domesticate the treaty into their respective national laws.
The Beijing Treaty deals with the intellectual property rights of performers in their audiovisual performances. It grants performers (actors, singers, dancers, etc.) moral rights and various economic rights (the right of reproduction; the right of distribution; the right of rental; the right of making available) for their performances fixed in audiovisual fixations. The most contested provision of the Treaty is Article 12, which allows Contracting Parties to create a legal presumption of transfer of performers’ rights to the producer once a performer has consented to the fixation of his/her audiovisual performance. Bearing in mind that the predominant practice in the audiovisual industry is for performers to transfer any rights regarding their performances to the producer, it is quite likely that the decision of Contracting Parties in terms of Article 12 will determine whether or not the rights afforded by the Beijing Treaty will improve the lot of performers in those countries.
Paragraph 2 of the Preamble to the Beijing Treaty links the provisions of the treaty to development considerations anchoring the WIPO Development Agenda. Given Africa’s connection to the WIPO Development Agenda and given the increasing role of audiovisual performances in helping people cope with lockdown restrictions established to control the spread of the coronavirus, this Kat decided to start a series on the implementation/domestication of the Beijing Treaty across Africa. The purpose of this “Beijing Treaty in Africa series” is to:
a) Determine if a given African country signed and/or ratified/acceded to the Beijing Treaty;
b) If it has signed and/or ratified/acceded to the Treaty, to confirm if there is a law or a draft bill that implements or domesticates the Treaty;
c) If there is a law or draft bill in place, to review the law or draft bill
d) If there is no law or draft bill, to establish if there is any publicly available information on the preparation of a bill or official government consultation process and/or audiovisual industry consultation process towards such a bill.
The series will run in alphabetical order starting with Algeria.
b) If it has signed and/or ratified/acceded to the Treaty, to confirm if there is a law or a draft bill that implements or domesticates the Treaty;
c) If there is a law or draft bill in place, to review the law or draft bill
d) If there is no law or draft bill, to establish if there is any publicly available information on the preparation of a bill or official government consultation process and/or audiovisual industry consultation process towards such a bill.
The series will run in alphabetical order starting with Algeria.
Algeria acceded to the Beijing Treaty in 2017 following Presidential Decree No 17-147 of 20 April 2017. By virtue of Article 150 of the Algerian Constitution, 2016 as amended, the Beijing Treaty in its entirety, has become part of Algeria’s national law and prevails over its Copyright and Neighbouring Rights Act 2003, which is an Act of Parliament.
Essentially, Algeria grants audiovisual performers moral rights and exclusive economic rights for various forms of exploitation of their performances. However, it is to be noted that the Beijing Treaty contains several flexibilities and/or discretionary provisions such that Contracting Parties may decide how they wish to implement (or interpret) them. These include moral rights after the death of the performer (Article 5(2); means of safeguarding moral rights (Article 5(3); exhaustion of distribution rights (Article 8(2); approach to right of broadcasting and communication to the public (Article 11); approach to transfer of rights from performers to producers (Article 12); limitations and exceptions (Article 13); etc.
It appears from the provisions of Article 110 of the Copyright and Neighbouring Rights Act 2003 that Algeria will uphold a rebuttable presumption of transfer of the rights of reproduction and distribution to producers. Under that provision (read with Article 109), consenting to fixation of an audiovisual performance is to be considered consent to reproduce, distribute or notify the audiovisual fixation to the public unless a contract stipulates otherwise.
Given this possibility, this Kat went on to search for evidence in Algeria, of strong performers’ union representation, collective bargaining environment and/or statutory mechanisms to ensure performers are paid whenever their performances are used. According to the International Federation of Actors (FIA), where presumption of transfer of rights exists, these are mechanisms that can help improve the lot of performers and change/influence the film industry status quo of performers transferring their rights to producers.
While this Kat could not find any information pointing to the existence of a performers’ association or guild in Algeria, she found that the Copyright and Neighbouring Rights Act 2003 establishes a sole statutory collecting society – the National Bureau of Copyrights and Neighboring Rights, and like other rights holders, performers who wish to have their rights managed and licensed under collective management shall join the Bureau. See Article 133. [Is it possible that producers can indirectly exclude or refuse to work with performers that join the Bureau?]
The Beijing Treaty permits Contracting Parties to adopt similar or same limitations and exceptions to performers’ rights as it has for copyright in literary and artistic works. Articles 120 (exceptions) and 121 (limitations) of the Copyright and Neighbouring Rights Act 2003 already provide for the same kinds of limitations and exceptions with regard to the protection of performers as the Act provides for, in connection with the protection of copyright in literary and artistic works. These include compulsory licences regarding translation of a work; reproduction for personal or family use; caricature, parody; library reproduction in specified circumstances; etc.
This series raises the important question of the extent to which the Beijing Treaty will be effective in protecting the interests of performers in Africa. How should African countries exploit the flexibilities built into the treaty’s main provisions to ensure that new rights granted to performers deliver tangible benefits to them? Should African countries operate a presumption of transfer of performers’ rights in favour of producers? If they do, how may the rights of performers’ under the treaty deliver appropriate benefits to performers?
What do readers think about these issues?
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For a critique of the Beijing Treaty, see the analysis by the Electronic Frontier Foundation here.
For a study on transfer of the rights of performers to producers of audiovisual fixations, see Prof Jane Ginsburg’s report here.
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