Moral Rights under Beijing Treaty on Audiovisual Performances

The Beijing Treaty was adopted on 26 June 2012 by the Diplomatic Conference on the Protection of Audiovisual Performances of the World Intellectual Property Organization (“WIPO”) but only ratified recently by most signatories. As a result, what does this treaty mean for the film industry and copyright for audiovisual performances and moral rights?

The Beijing Treaty is a newly ratified multilateral treaty that seeks to expand performers’ rights. Only recently, the treaty has entered into force as it has been ratified by at least 30 of the 122 signatories. The treaty is the first of its kind and benefits audiovisual performances whose performances are incorporated into an audiovisual work such as a film or T.V. program.[1] The treaty grants audiovisual performers four economic rights under the treaty as well as specific moral rights. For example, the only other treaty of this magnitude dealing with moral rights are the minimum standards set out in the Berne Convention article 6bis. There is 6bis(1) which protects paternity and 6bis(2) which protects the integrity of the work. Berne protects the form and spirit of the work.[2] So how will the Beijing treaty change what is covered and Berne?

The Beijing Treaty grants performers moral rights, that is, the right to claim to be identified as the performer (except where such an omission would be dictated by the manner of the use of the performance); and the right to object to any distortion, mutilation or other modification that would be prejudicial to the performer’s reputation, taking into account the nature of the audiovisual fixations.[3] The two main differences in this treaty from Berne are the moral and economic rights for audiovisual performers under articles 5 and 6.

The gap between protection in France and U.S. has always been staggering.[4] Interestingly, the U.S., has never complied with article 6bis yet, one of the driving forces of the Beijing Treaty are the protections of the performers moral rights to a work. The U.S. adopted two acts that are meant to cover some moral rights protections: Lanham act and Visual Artists Rights Act (VARA) but neither actually allows for protection of moral rights.[5] There are various cases that show how the U.S. shy’s away from any protection of moral rights.[6] By analyzing these cases one can see how the Beijing treaty would alter U.S. law and more importantly, how it would impact contracts within the film industry.

The U.K. is arguably not in compliance with the Berne convention as to moral rights. The U.K. acknowledges moral rights in false attribution, privacy, paternity and integrity.[7] U.K. copyright can be seen as very commercial interest focused and some scholars even call for a high originality requirement and a new system including unfair competition.[8] Although I disagree with this view as I find that in such a case one may as well get rid of common law copyright entirely, it shows that there is massive confusion in moral rights case law in the U.K. For example, in Tidy v Trustees of the Natural History Museum, cartoon drawings featuring dinosaurs were published in a book at a reduced size detracted from visual impact and harm reputation.[9] The court held in favor of the museum requiring there to be both treatment and that the treatment was prejudicial to the honor and reputation of the author.[10] On the other hand, Confetti Records v Warner Music UK Ltd., there as an addition of rap lyrics in a song however, the words had no meaning and were hard to decipher so there was no evidence to harm author’s reputation and therefore the court found no infringement.[11] These two cases are complete opposites and the court is unclear whether there just one criterion or not. Professor Bentley believes that based on Confetti Records there is still just one criterion but, that under Tidy distortion or treatment that is otherwise prejudicial to the honor.[12] Thus, it will be important to understand what is the case law for integrity rights in the U.K. to understand how this treaty will impact moral rights in the U.K.

France has always been above and beyond what is required in the Berne Convention.[13] In France moral rights are inalienable, perpetual and imprescriptible and France protects the right to divulgation, paternity, integrity and revocation.[14] It seems most likely that there will not be a great impact on French moral rights. Even article 5(2), which contains a clause dealing with moral and economic rights after the death of the performer are already covered by French law’s abuse of rights law.[15]

The Beijing Treaty article 5 (1) specifies that audiovisual performers:

(i) to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance; and

(ii) to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations.

The treaty gives paternity and integrity rights to performers. Moreover, as expressed above, there are “abuse of rights” which even protects the performer after death. Furthermore, article 6 states,

Performers shall enjoy the exclusive right of authorizing, as regards their performances:

(i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and

(ii) the fixation of their unfixed performances.

These rights are will massively impact contracts with performers and how they interact with production and film companies. By looking at the U.S., U.K. and French case law, copyright acts, the Berne Convention and film contracts, one can only begin to imagine how the Beijing treaty will impact the film industry and moral rights of audiovisual performers.

 

[1] WIPO treaty en. Page 1

[2] Kim Treiger-Bar-Am, Moral Rights of Integrity: A Freedom of Expression, NEW DIRECTIONS IN COPYRIGHT, Vol. 2, Fiona Macmillan, ed., Edward Elgar, 2006.

[3] http://www.wipo.int/treaties/en/ip/beijing/summary_beijing.html

[4] Peter K. Yu, Moral rights 2.0, Drake University Research Paper No. 11-28, 2010 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1692500).

[5] See Natalie C. Suhl, “Moral Rights Protection in the United States Under the Berne Convention: A Fictional work?”, 12 Fordham Intellectual Property Media and Entertainment Law Journal 1203 [2002] and See also generally, David E. Shipley, “The Empty Promise of VARA: The Restrictive Application of a Narrow Statute“, [2014] 83:5 Mississippi Law Journal 986, AVAILABLE AT (http://ssrn.com/abstract=2284910, VARA protection is very narrow in scope and substance as shown in the case law.

[6] See  Gilliam v. American Broadcsating Cos.,538 F. 2d 14 (2d Cir. 1976); Geisel v. Poynter Prods., Inc.,295 F. Supp. 331(S.D.N.Y. 1968); Shostokovich v. Twentieth Century- Fox Film Corp 80 NYS 2nd 575 [1948]; Lilley v Stout 384 F Supp 2d 83 ( 2005); Kelley v Chicago Park District 2008 WL 444 9886 (ND Ill 2008); Kleinman v. City of San Marcos, 597 F 3d 323 (5th Cir, 2010); Carter v. Helmsley Spear Inc, 71 F.3d 77 [2nd Cir. 1995], cert. denied 116 S. Ct. 1824; Pavia v. 1120 Avenue of the Americas Associates, 901 F. Supp.620 (1995); Pallara v. Seymour, 344 F. 3d 265 (2003); Phillips v Pembroke Real Estate Inc, 459 F 3d 1278 (1st Cir, 2006); Martin v. City of Indianapolis 192 F.3rd 608 (7th Cir. 1999); Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003); Massachusetts Museum Of Contemporary Art Foundation, Inc.,v. Christoph Büchel,  593 F 3d 38 (1st Cir 2010).

 

[7]Copyright, Designs and Patents Act 1988, s.84 and s.88(4)(5) [joint works], s.85 and s.88(6)[joint works] , s.77, s.80.

[8]Stamatoudi, “Moral Rights of Authors in England: The Missing Emphasis on the Role of Creators” 4 IPQ 478 [1997].

[9] Tidy v Trustees of the Natural History Museum [1996] EIPR D-86.

[10]  Id.

[11] Confetti Records v Warner Music UK Ltd. [2003] EMLR (35) 790.

[12] Aplin and Davis, Intellectual Property Law Text, Cases, and Materials, 2nd edition [2013], pp. 148-161.

[13] See Whistler c. Eden Judgment of 20 mars 1895, Trib. civ. Seine, 1898, Recueil Periodique et Critique, D.P. II. 465; Cour d’appel reversed, 1900 Recueil Dalloz. S. II.201, Cassation affirmed 14 Mars 1900, Cass. civ., 1900 Recueil Periodique Sirey D.P.I.490.; Carco c. Camoin, Judgment of 6 mars 1931 (Carco c. Camoin), Cour d’appel Paris, 1931,  Recueil Periodique et Critique [D.P.] II.88.; Rouault c. Consorts Vollard, Judgment of 10 juillet 1946 (Rouault c. Consorts Vollard), Trib. civ. Seine, 1946 Receuil Dalloz [D.A.] 107, aff’d, Judgment of 19 mars 1947, Cour  d’appel Paris, 1949 Receuil Periodique Sirey [D.P.] 20.; Bouvier c. Cassigneul, Cass. Crim., Decembre 13, 1995, 169 RIDA 306 [1996].; Foujita c. ACR  Cass. civ. February 28, 1989; 141 R.I.D.A. 257 [1989].; Fleg c. Gaumont, Trib. civ. Seine,1922 Gazette des Tribunaux [G.T.] 2.282.; Marquet c. Lehmann, Trib. civ. Seine, 1923 Gazette des Tribunaux [G.T.] 2.27, judgment of 12 juillet 1923  all the names of the authors have to be mentioned on the work.; Guino c. Renoir 1971 Gazette du Palais I.235.; Millet case, Judgment of 20 mai 1911 (Millet), Trib. civ. Seine, 1911 Amm. I.271.; Turner Entertainment Co v. Huston “The Asphalt Jungle case”, Cour de Cassation, 1ère chambre civ. arret no. 861, 28 mai 1991, 149 RIDA 197 [1991];  Court of Appeal of Versailles, Decembre 10, 1994, 164 RIDA 256 [1995].; Leger c. Reunion des Theatres Lyriques Nationaux, Trib. civ. Seine, 6 R.I.D.A. 146 [1955].; Chant du monde v. Fox Europe, Cass. civ., decembre 22, 1959,  28 RIDA 361 [1960]; Sony Music v. Farmer 171 RIDA 250 [1996]; ADAGP et autres c. Association Front National et autres, CA Versailles, 1ch, 20 December 2001, 192 RIDA 448 [2002].; Bernanos et al v. Dimitri Tcherniakov et Public Opera de Munich, cour d’appel de Paris, [13 octobre 2015], for analysis in English, see http://the1709blog.blogspot.co.uk/2015/11/the-paris-court-of-appeals-gives.html; Sudre c. Commune de Baixas, Conseil d’etat, 1936 D.P. III.57.; Lacasse et Welcome c. Abbe Quenard, Cour d’appel Paris, 1934 Receuil hebdomadaire de jurisprudence [D.H. jur.] 385, 1934 Gazette du Palais [[[G.P.]II.165; Conseil National de l’ordre des Architectes c. Ste Perret-Lagrande, Immobiliere du theatre des Champs Elysees et autres, TGI Paris, 1 Ch, 4 April 1990, 145 RIDA 386 [1990].

[14] Elizabeth Adeney, The Moral Rights of Authors and Performers, Oxford, OUP, [2006], pp. 163 – 215; Durie, R., “Colorisation of Films”, [1988] 2 EIPR 37; Cheryl Swack, “Safeguarding Artistic Creation and the Cultural Heritage: A Comparison of Droit Moral Between France and the United States”, 22 Colum-VLA J.L. & Arts 361 [1998]; Stina Teilmann, Justifications for Copyright: The Evolution of le droit moral, in New Directions in Copyright Law, Fiona Macmillan editor, Edward Elgar, Cheltenham [2005], pp.73-87; F. Pollaud-Dulian, “Moral Rights in France Through Recent Case Law”, 145 RIDA 126 [1990]; Elise, K. Bader, “A Film of a different Colour: Copyright and Colorisation of Black and White Films”, 36 Copyright Law Symposium 133; Edelman, B., “Applicable Legislation Regarding Exploitation of Colorised U.S. Films in France: The ‘John Huston’ Case”, 23 IIC 62 [1992].

[15] Article 5(2), “The rights granted to a performer in accordance with paragraph (1) shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the Contracting Party where protection is claimed.”

Advertisements

“Can Artists be Replaced? – Who should be the Author of Work Created by Artificial Intelligence”

With Google’s new “Deep Mind” software, it looks like soon there will be no need for artists. The software creates music based from recordings it listens to. “The Next Rembrandt” project creates software which attempts to create art mimicking Rembrandt. But who should own the work created? Continue reading ““Can Artists be Replaced? – Who should be the Author of Work Created by Artificial Intelligence””

Summary of EC Anti-Competition Decision Against Google

The European Commission has fined Google €2.42 billion for breaching EU antitrust rules. Google abused its market dominance as a search engine by giving an illegal advantage to another Google product, its comparison shopping service. Commissioner Margrethe Vestager, who is in charge of competition policy stated, “[Google] denied other companies the chance to compete on the merits and to innovate. And most importantly, it denied European consumers a genuine choice of services and the full benefits of innovation.” Continue reading “Summary of EC Anti-Competition Decision Against Google”

Opinion: GDPR impact on Insurance Fraud

The new General Data Protection Regulation (thereafter “GDPR”), which is to enter into force on 28th May 2018 will have significant impact on companies with data processing especially in the insurance arena in the European Union (“EU”). The European insurance industry is heavily regulated and has always been overlooked by individual national authorities. Continue reading “Opinion: GDPR impact on Insurance Fraud”

Summary of Life Technologies Corporation v. Promega Corporation

The United States Supreme Court has come out with a controversial patent decision on February 22, 2017, limiting the scope of protection for U.S. patents. Life Technologies Corporation v. Promega Corporation, dealt with an international intersection supply chain and a patent. The science behind the patent is extremely complicated, but essentially the issue of the case was whether a single enzyme that was supplied to a facility in the U.K., which was a component that made up the DNA test kit, infringed the patent. The majority opinion, which was given by Justice Sonia Sotomayor, stated that shipping a single component that makes up a patent is not enough to constitute infringement. Continue reading “Summary of Life Technologies Corporation v. Promega Corporation”