The Beijing Treaty establishes international level protection for IP rights in audiovisual  performances, including those by actors, musicians, dancers and other performers that are incorporated into films, TV programmes, music videos and other audiovisual recordings. These include the exclusive rights of reproduction, commercial rental and distribution and interactive making available online of their performances in audiovisual works.

As an international instrument, the Treaty establishes obligations for Contracting Parties to provide protection for audiovisual performers from other Contracting Parties, largely on the basis of national treatment. The Treaty sets a minimum level of requirements while leaving each nation a considerable degree of discretion to determine what is in the best interests of their audiovisual sector. The UK is already largely in compliance with the Treaty and only limited technical changes are required.

The Treaty offers several options with respect to the economic right of broadcasting and communicate to the public of performances fixed in audiovisual fixations, rights that do not exist currently under UK law. Options include providing for exclusive rights for the performer to prevent or authorise the broadcasting or communication to the public of their performances in such works, introducing rights for performers to receive equitable remuneration for (but not prevent) the exercise of such rights, limiting such rights to certain uses or in other ways or not providing these rights at all. According to the Government, the UK audiovisual industry considers that the current framework achieves the goal of ensuring equitable remuneration in the audiovisual sector via a combination of individual contracts and collective bargaining agreements.

The Treaty also introduces moral rights for performers to be attributed and to prevent certain derogatory treatment of their audiovisual performances, rights which only currently exist under UK law for live performances and performances in sound recordings. The Treaty includes a number of flexibilities designed to take into account the specificities of the audiovisual sector. The Government appears committed to not taking any disruptive measures, particularly given the large number of contributors to audiovisual works.

The UK is a signatory to the Treaty but could not ratify it whilst being an EU member. In April 2021, the IPO issued a Call for Views on the implementation of the Treaty. It now intends to ratify the Treaty with a view toward securing protections for UK performers when their performances are used in other countries who have implemented the Treaty

The current consultation states that the UK intends to amend UK law to provide exclusive rights in live and audiovisual performances to nationals in countries that have ratified the Treaty. In respect of rights to broadcast and communicate to the public fixed audiovisual performances, the IPO is seeking input on all options described above but particularly in respect of its two preferred options: providing for exclusive rights for the performer to prevent or authorise the broadcasting or communication to the public of their performances in such works or, alternatively, introducing rights for performers to receive equitable remuneration for (but not prevent) the exercise of such rights. Based on the responses to its Call for Views, the IPO’s view seems to be that the first option would result in fewer negative impacts as the latter would likely result in having to re-negotiate existing contracts with performers to include the new statutory remuneration associated with the second option.  Neither of these options will be acceptable to industry which is concerned about damage to the competitive advantage currently enjoyed the audiovisual sector in the UK. Performers’ groups on the other hand seek remuneration rights.

Based on the responses to the Call for Views, the IPO does not appear to have concerns about introducing the new moral rights particularly as it will be able to do so with the current legal exceptions (such as the possibility of waiver) but views are invited, particularly as to the impact of the integrity right on freedom of expression.

For more information and to respond to the Consultation, which closes on 9 November 2023, click here.