The Beijing Treaty on Audiovisual Performances 2012, Articles 1 to 17

In one line

The Beijing Treaty gives an audiovisual performer the rights that Rome took away and the WPPT never gave, and it took the international system fifty one years to get there.

In exam wording: the Beijing Treaty on Audiovisual Performances, adopted at Beijing on 24 June 2012 and in force from 28 April 2020, confers on performers in respect of their performances fixed in audiovisual fixations moral rights and exclusive rights of reproduction, distribution, rental, making available, and broadcasting and communication to the public, and addresses the transfer of rights to the producer of the audiovisual fixation in Article 12.

Why it took fifty one years

Rome Article 19 is the beginning of the story. Notwithstanding anything in that Convention, once a performer has consented to the incorporation of his performance in a visual or audiovisual fixation, Article 7 shall have no further application. So a film actor who agreed to be filmed lost the Convention's protection entirely.

The WPPT of 1996 did not fix it. Article 2(b) of that Treaty defines a phonogram to exclude a fixation incorporated in a cinematographic or other audiovisual work, so an actor was outside it too.

A diplomatic conference in 2000 failed. Nineteen of twenty articles were agreed provisionally and the conference broke down on one question: the transfer of rights from the performer to the producer.

The disagreement was between two legal traditions. The United States and others wanted a presumption or a rule of transfer, so that a producer financing a film would hold all the rights without needing separate assignments from every performer. Others, particularly in Europe and in developing countries, resisted anything that reduced the performer's position by treaty.

The Beijing solution was to leave it to national law, which is Article 12, and that compromise is what made the Treaty possible in 2012.

Articles 1 to 4: framework, definitions and beneficiaries

Article 1(1): nothing derogates from existing obligations under the WPPT or the Rome Convention.

Article 1(3): this Treaty shall not have any connection with, nor prejudice any rights and obligations under, any other treaty.

An Agreed Statement to Article 1 records that nothing prevents a contracting party from applying the provisions of the Treaty to performances fixed in phonograms as well.

Article 2 defines performers in terms that include performers of expressions of folklore, as the WPPT does; audiovisual fixation as the embodiment of moving images, whether or not accompanied by sounds, from which they can be perceived, reproduced or communicated through a device; broadcasting, including satellite and encrypted transmissions where the decrypting means are provided by or with the consent of the broadcasting organisation; and communication to the public.