On June 26th, 2012, the State Department put out a release stating the United States had joined 47 other countries in signing the Beijing Treaty on AudioVisual Performances. The treaty is intended to expand copyright protection to actors in movies and television programs. The diplomatic conference was held in Beijing by the World Intellectual Property Organization (WIPO); the signing was the culmination of almost 15 years of negotiations. According to WIPO the conference had more participation than any prior WIPO conference and included 156 member states, 6 intergovernmental organizations and 45 non-governmental organizations.

In separate press releases the U.S. Copyright Office and the U.S. Patent and Trademark Office praised the treaty. According to David Kappos, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, the treaty “strengthens the position of film and television performers by providing a clear, international framework for protection of their IP rights.” On their homepage, WIPO has posted that the treaty “strengthens economic and moral rights for audiovisual performers.” Despite the enthusiastic statements the actual purpose and effect of the treaty was initially pretty hard to get a handle on, but after having spent some time digging online a while I’ve got a few observations and thoughts on the topic that range from fairly obvious to hopefully somewhat less obvious.

1. It has zero impact

Although it’s getting a lot of attention in intellectual property press the treaty has not been ratified by any of the signatories. It won’t enter into force until 30 signatories ratify it. The process for ratification differs from country to country; the U.S. constitution requires approval by two thirds of the Senate. It’s a pretty high bar and the U.S. is a signatory to a number of treaties that have never been ratified including The Law of the Sea and The Convention on the Rights of the Child.  If and when this treaty is ratified at all and whether the U.S. will participate are open questions.

2. It has a lot of impact

Although the treaty is not yet in effect this isn’t the type of treaty the United States tends to hold out on. The U.S. has a tendency to waiver on treaties that have the perceived impact of reducing influence, power, or freedom to act. This isn’t one of those. Out of 16 WIPO treaties the U.S. has been involved with 15 have gone on to be ratified. The Beijing Treaty is really just an expansion of rights granted under the last WIPO treaty the U.S. signed, the WIPO Performances and Phonograms Treaty (WPPT). Because of the significant revenue the U.S. draws from intellectual property it is likely to ratify and aggressively push for enforcement of this treaty.

3. Actors are loving it

The treaty is intended to grant actors more control over use of their performances as well as the potential for them to draw a larger share of proceeds from international revenue. Prominent actors from around the world including Meryl Streep (United States), Javier Bardem (Spain), and Jackie Chan (China) have praised it. In addition, the Screen Actors Guild — American Federation of Television and Radio Artists has endorsed it on behalf of its more than 160,000 members. Unlike the occasional contrary voices you hear within the music industry regarding the regulation of music this treaty appears to have very united support in the acting community.

4.This won’t change anything with China . . . or will it?

The question of what this treaty means in relation to China is an interesting one. It’s no secret that film piracy in China is rampant. According to the U.S. Embassy in China, piracy activity continues to rise and accounts for as much as 95% of current film sales within China. This is a huge concern for an industry that generates tens of billions of dollars in the global market with eyes on China as potentially the biggest piece of that market. Compounding the problem are Chinese policies limiting legitimate film imports and the application of strict censorship. China joined the WPPT in 2007, but excluded enforcement in Hong Kong and Macao. In what may be the biggest single market in the world is the treaty just going to be an empty promise?

While there are concerns about enforcement of the treaty there are indications that China will make efforts to reduce movie piracy and improve film revenue protection. Hosting the final round of negotiations and the signing of the treaty puts eyes squarely on China and its relationship to film piracy. Under that scrutiny the Chinese government has been very vocal about its support for the treaty and its intent on shoring up the rights of the performers protected by the treaty. While this may not amount to much there is some history to suggest that it will. First, a few months prior to signing this treaty China agreed to increase the number of Hollywood movies allowed to be shown in China from 20 to 34. This agreement also allows the distribution of these movies to be handled in part by independent entities rather than the state and will make the censorship process more transparent. Because access to films is considered to be one of the biggest factors encouraging movie piracy the changes are anticipated to have real impact. Second, and more important, China has demonstrated efforts to collect and distribute music revenue after joining the WPPT in 2007. The Music Copyright Service of China has agreements with four U.S. music associations: ASCAP, BMI, SESAC, and HAFOX and according to the U.S. Embassy in China has shown diligence in collecting and distributing revenues from music copyrights. Because the Beijing Treaty has the same foundation as the WPPT but simply expands its application it is not too big a stretch to imagine that the Chinese government will treat the two treaties similarly. If this is true it is very possible that we will see an expansion of regulation and enforcement under the Beijing Treaty in the upcoming months and years.

It’s very early. It’s difficult to say what will come of the Beijing Treaty. Whether it will be a boost to the U.S. film industry is uncertain. I believe however that for better or worse this treaty shows signs of having teeth and will likely be the source of a great deal of future attention and commentary.

Share