Beijing Treaty on Audiovisual Performances: A Milestone in Intellectual Property Rights

Beijing Treaty on Audiovisual Performances: A Milestone in Intellectual Property Rights

The Beijing Treaty on Audiovisual Performances, adopted on June 24, 2012, by the World Intellectual Property Organization (WIPO), is a landmark international agreement aimed at strengthening the rights of performers in audiovisual works. Before this treaty, performers in film, television, and other audiovisual media lacked comprehensive protection for their creative contributions. The treaty closes this gap by granting performers economic and moral rights, ensuring they have control over how their performances are used and compensated. The treaty entered into force on April 28, 2020, after reaching the necessary ratifications.

This essay examines the background, significance, and implications of the Beijing Treaty, focusing on its legal provisions, impact on the entertainment industry, and potential challenges in implementation.

Background and Need for the Beijing Treaty

Before the adoption of the Beijing Treaty on Audiovisual Performances, the legal framework for protecting performers’ rights was fragmented and largely insufficient, particularly in the realm of audiovisual media. Although early international treaties addressed aspects of performers’ rights, they focused primarily on musical performances and sound recordings, leaving a significant legal void for actors and other contributors to audiovisual works.

Predecessor Treaties and Their Limitations

The two primary international agreements preceding the Beijing Treaty were:

1. The Rome Convention (1961)
   The International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations, commonly referred to as the Rome Convention, was the first international treaty to recognize and protect performers’ rights. However, its scope was limited to musical performances and did not extend to audiovisual performances such as films, television, or theatrical recordings. Under this treaty, performers were granted only certain rights related to live performances, broadcasting, and reproduction, but these protections did not fully address the evolving needs of performers in audiovisual media.
2. The WIPO Performances and Phonograms Treaty (WPPT) (1996)
   With the rise of digital technology, the WIPO Performances and Phonograms Treaty (WPPT) was introduced in 1996 to expand performers’ rights in the digital age. This treaty built upon the Rome Convention by providing stronger protection for performers against unauthorized use of their performances in the digital realm. However, the WPPT still focused only on sound recordings and did not cover audiovisual performances. As a result, musicians and vocal performers benefited from enhanced protections, while actors, dancers, and other performers in films and television remained largely unprotected on the global stage.

The Glaring Gap in Audiovisual Performers’ Rights

With the exclusion of audiovisual performers from existing treaties, actors and performers in the film and television industry faced significant disadvantages, particularly in terms of:

1. Lack of Economic Rights
   Unlike musicians, actors and performers in audiovisual works had limited legal standing to claim royalties, residuals, or fair compensation when their performances were broadcast, streamed, or distributed internationally. Many were denied remuneration when their performances were used in secondary markets (e.g., DVD releases, streaming platforms, or reruns on foreign television networks).
2. Absence of Moral Rights
   Without explicit protection, performers had no legal recourse if their performances were altered, misrepresented, or used in a way that harmed their reputation. This was particularly relevant in the era of digital editing, dubbing, deepfake technology, and AI-generated modifications. Without moral rights, performers could not prevent their likenesses from being manipulated or misused.
3. Unregulated Globalization of Audiovisual Content
   The entertainment industry saw rapid globalization in the late 20th and early 21st centuries. Films and TV series were distributed across borders without standardized laws protecting performers’ rights. This created significant disparities—performers in countries with strong copyright laws (such as the U.S. and parts of Europe) had some degree of protection, whereas those in developing nations or regions with weaker copyright frameworks were vulnerable to exploitation.
4. The Rise of Digital Media and Streaming Services
   The explosion of digital platforms like YouTube, Netflix, Amazon Prime, and social media video content dramatically changed how audiovisual works were consumed. Unlike traditional distribution models (cinema, television, or DVD sales), these new platforms enabled instant, global dissemination of performances, often without proper licensing agreements or performer compensation. Unauthorized uploads, digital piracy, and illegal streaming became rampant, highlighting the urgent need for a robust international treaty that would grant performers control over their work.
5. Technological Advancements and the Risk of Misuse
   Advances in digital editing tools and artificial intelligence (AI) have introduced new ethical and legal dilemmas for audiovisual performers. AI-generated “deepfake” technology can manipulate performers’ images and voices, creating new performances that the original artist never consented to. The absence of a legal framework meant that actors and other performers had little control over the unauthorized digital modification of their performances.

The Beijing Treaty: Addressing These Shortcomings

The Beijing Treaty on Audiovisual Performances (2012) was created to bridge this critical gap and provide audiovisual performers with the same level of international protection that musicians and other artists already enjoyed. By formally recognizing both economic and moral rights, the treaty ensures that performers:

• Have control over how their performances are used, distributed, and modified
• Can claim fair compensation and residuals for the use of their work across different platforms
• Are legally recognized as key contributors to audiovisual content
• Have the right to object to any distortion or unauthorized alteration of their performance

By granting performers greater control over their intellectual property, the Beijing Treaty marked a turning point in the global protection of creative professionals in the audiovisual industry. Its adoption reinforced the idea that actors and audiovisual performers should enjoy the same dignity, recognition, and economic benefits as their counterparts in music and literary fields.

The Beijing Treaty was necessary because existing intellectual property treaties failed to protect audiovisual performers, leaving them vulnerable to exploitation, lack of recognition, and financial loss in an increasingly digital world. The rise of streaming services, online content distribution, and AI-generated alterations further underscored the need for stronger international safeguards. By closing the legal gap left by the Rome Convention and WPPT, the Beijing Treaty provides a long-overdue legal framework that ensures performers have both economic and moral rights, allowing them to maintain control over their work and receive fair compensation.

This treaty represents a significant step towards harmonizing intellectual property rights worldwide and adapting legal protections to the challenges of the digital age. However, effective implementation and enforcement remain crucial for ensuring that its objectives are fully realized.

Key Provisions of the Beijing Treaty on Audiovisual Performances

The Beijing Treaty on Audiovisual Performances (2012) establishes a comprehensive framework for the protection of performers in films, television, and other audiovisual media. Its provisions grant both economic and moral rights to performers, ensuring that they benefit from their creative contributions in an era of digital distribution and globalized entertainment. These provisions aim to close historical legal gaps while adapting to modern technological challenges.

1. Economic Rights of Performers

The treaty grants audiovisual performers exclusive economic rights, meaning they have the legal authority to authorize or prohibit the use of their performances in various commercial contexts. These rights include:

a) Right of Reproduction

Performers have the right to control the reproduction of their recorded performances. This ensures that:

• Their work cannot be copied, duplicated, or reproduced without permission.
• Producers, distributors, and digital platforms must obtain consent before creating and selling copies of performances.
• Performers can negotiate compensation for reproductions, including digital downloads, DVDs, and streaming services.

This is particularly crucial in the digital age, where illegal copying and piracy have undermined performers’ ability to earn fair compensation for their work.

b) Right of Distribution

Performers have the right to control how their performances are distributed to the public. This provision:

• Prevents unauthorized circulation of films, TV series, and other audiovisual content featuring their performances.
• Ensures that actors and performers receive fair remuneration when their performances are sold in international markets.
• Helps combat unauthorized DVD releases and illegal streaming platforms.

c) Right of Rental

The treaty grants performers control over the commercial rental of their performances. This means that:

• Film studios, streaming platforms, and rental services must obtain permission before renting out performances in digital or physical formats.
• Performers are entitled to a share of the revenue generated from rentals.
• This right extends to both traditional rental services (DVDs, Blu-rays) and modern digital rentals (on-demand streaming platforms).

d) Right of Making Available

In response to the rise of digital media, the treaty grants performers the right to control the online accessibility of their performances. This means:

• Performers must authorize the availability of their work on streaming platforms, social media, and other digital services.
• Unauthorized uploads or online broadcasts of performances can be legally challenged.
• Performers can negotiate contracts ensuring they receive royalties from digital distribution.

This right is particularly important in the age of YouTube, Netflix, and TikTok, where audiovisual content is widely shared and monetized.

2. Moral Rights of Performers

In addition to economic rights, the Beijing Treaty introduces moral rights, which protect the performer’s personal and reputational interests. These rights ensure that performers are recognized and that their work is not misrepresented.

a) Right of Attribution

Performers have the right to be identified as the author of their performances. This means that:

• Their name must be credited in films, TV shows, and digital media where their performance is featured.
• Producers cannot remove or misattribute their work without consent.

This provision strengthens performers’ visibility and professional recognition in an industry where proper crediting is essential for career growth.

b) Right of Integrity

Performers have the right to prevent any distortion, mutilation, or modification of their performance that would harm their reputation. This is especially relevant in:

• Digital editing and CGI: Unauthorized alterations, deepfakes, and AI-generated modifications can significantly change a performance.
• Dubbed or censored versions: A performer’s work may be modified to fit different cultural or political standards in international markets.
• Recontextualization: Scenes or clips may be used in a misleading way that alters the performer’s intended expression.

By granting moral rights, the treaty protects performers from reputational harm caused by unauthorized changes to their work.

3. Term of Protection

The Beijing Treaty establishes a minimum term of protection of 50 years from the date of the performance’s fixation. This ensures that:

• Performers retain their rights for a substantial period after their performance is recorded.
• Their heirs or legal representatives can continue to benefit from their work.

This protection period aligns with international copyright standards, ensuring consistency across legal frameworks.

4. Transfer of Rights: Balancing Performer and Producer Interests

Recognizing the complexities of the film and television industry, the treaty includes provisions on the transfer of rights from performers to producers.

Key Aspects:

• Performers can contractually transfer their economic rights to producers in exchange for agreed-upon compensation (e.g., salaries, royalties, residual payments).
• National laws may define the conditions under which such transfers occur to ensure fair treatment of performers.
• Some legal systems may allow for reversion rights, meaning performers can regain their rights after a set period.

By formalizing the transfer process, the treaty seeks to balance performers’ interests with the commercial realities of film production, where producers often need control over performances for distribution and marketing purposes.

5. Technological Protection Measures (TPMs) and Digital Rights Management

To adapt to the challenges of digital piracy, the treaty includes provisions on Technological Protection Measures (TPMs), which support modern digital rights management (DRM) systems.

How TPMs Protect Performers:

• They prevent unauthorized copying, distribution, or alteration of performances.
• Encrypted content can be protected from illegal streaming and downloads.
• Digital watermarks and fingerprinting technology help track unauthorized usage.

These provisions align with existing intellectual property laws, such as the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), strengthening the global protection of audiovisual works.

The Beijing Treaty on Audiovisual Performances provides a strong and comprehensive legal framework for protecting performers’ economic and moral rights. By granting control over reproduction, distribution, rentals, and online availability, it ensures performers receive fair compensation for their work. The inclusion of moral rights protects the integrity of performances, especially in the face of digital manipulation and AI-generated alterations.

Moreover, the treaty strikes a balance between performers and producers, acknowledging the commercial realities of the entertainment industry while safeguarding the creative and economic interests of actors, dancers, and other audiovisual performers. With Technological Protection Measures reinforcing these rights in the digital space, the treaty represents a landmark step toward a fairer, more equitable audiovisual industry in the globalized and digitalized 21st century.

However, its full impact depends on widespread ratification and enforcement, ensuring that the treaty’s provisions translate into real protections and benefits for performers worldwide.

Impact on the Entertainment Industry

The Beijing Treaty on Audiovisual Performances has far-reaching implications for the global entertainment industry, influencing the legal, economic, and creative landscapes for performers, producers, distributors, and digital platforms. By formally recognizing performers’ economic and moral rights, the treaty rebalances power dynamics, ensuring that actors, dancers, and other audiovisual performers receive fair compensation, recognition, and control over their work. The treaty’s adoption also brings much-needed alignment between national copyright laws, facilitating international cooperation in an increasingly globalized industry.

1. Empowerment of Performers: Strengthening Rights and Recognition

One of the most significant impacts of the Beijing Treaty is the empowerment of audiovisual performers. Before the treaty, performers in films, TV shows, and digital media had weaker legal protections compared to musicians and composers, who already benefited from robust intellectual property rights.

Key Benefits for Performers:

• Greater Control Over Their Work: The treaty grants performers exclusive rights to control reproduction, distribution, rental, and digital availability of their performances.
• Legal Recognition and Attribution: Moral rights ensure that performers receive due credit for their work, preventing unauthorized modifications that could misrepresent them.
• Protection from Exploitation: Many performers, especially in developing countries, previously had little legal recourse when their performances were used without their consent or adequate compensation. The treaty creates a global standard for protecting their interests.

For actors, dancers, and other performers, this treaty represents a historic step toward fairer treatment in an industry that has traditionally favored producers and distributors.

2. Fair Compensation in the Digital Age: Ensuring Performers Benefit from Streaming and Online Distribution

The entertainment industry has shifted dramatically toward online streaming platforms, video-on-demand services, and digital content distribution. While this digital revolution has opened up new revenue streams, it has also led to widespread exploitation of audiovisual performances, with content being monetized across multiple platforms without performers receiving fair compensation.

How the Treaty Ensures Fair Pay for Performers:

• Streaming Royalties: Services like Netflix, Amazon Prime, Disney+, and YouTube generate billions in revenue from content featuring performers. The treaty ensures that actors and artists receive compensation for their work’s ongoing digital use.
• Cross-Border Protections: Many performers’ rights were limited to their country’s laws, but with global platforms distributing content internationally, the treaty ensures that performers receive compensation regardless of where their work is streamed.
• Preventing Unauthorized Use: By providing performers with the right to control the online distribution of their performances, the treaty helps them protect their work from piracy and unauthorized commercial use.

These provisions are particularly important in countries where digital rights enforcement has been weak, ensuring that performers across the world benefit from their contributions to entertainment.

3. Incentive for High-Quality Productions: Attracting Talent and Investment

By strengthening performers’ rights and ensuring they receive long-term financial benefits, the treaty encourages the creation of higher-quality productions in film, television, and digital media.

How the Treaty Encourages Better Productions:

• Attracting Top Talent: When actors and performers are assured of their rights and fair pay, more high-caliber talent is likely to participate in the industry.
• Encouraging Investment in the Arts: With greater legal certainty, investors and producers may be more willing to finance ambitious projects, knowing that performers’ rights are clearly defined.
• Boosting Ethical Production Practices: The treaty promotes fair treatment of performers, encouraging the entertainment industry to adopt more transparent and equitable contracts.

For emerging film industries—such as those in Africa, Southeast Asia, and Latin America—the treaty provides a stronger legal foundation that could attract international collaborations and boost local productions.

4. Alignment with Copyright Laws: Harmonizing International Protections

The entertainment industry is deeply international, with major productions often involving multiple countries, co-productions, and worldwide distribution. The lack of uniform legal protections for audiovisual performers created legal loopholes, allowing some countries to exploit performances without compensation.

How the Treaty Harmonizes Global Copyright Law:

• Standardized Protection Across Borders: Countries adopting the treaty must provide uniform protections for performers, ensuring similar rights regardless of nationality or place of performance.
• Facilitating Co-Productions: International film and television projects—such as those involving Hollywood, Bollywood, Nollywood, and European film industries—benefit from clearer legal frameworks, making it easier to share revenue and manage rights.
• Consistency with Other IP Treaties: The treaty aligns with existing international agreements, such as the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), creating a cohesive global intellectual property framework.

With the rapid globalization of entertainment, legal consistency is essential to ensuring that performers’ rights are respected regardless of where their work is viewed or distributed.

5. Digital Challenges and Future Implications

While the Beijing Treaty strengthens performers’ rights, it also introduces new challenges and debates, particularly in the digital realm.

Key Challenges:

• AI and Deepfake Technology: Advances in artificial intelligence enable AI-generated performances and deepfake recreations, raising questions about whether actors’ rights extend to digital reproductions of their likeness.
• Evolving Business Models: With the entertainment industry shifting toward subscription-based streaming, performers may need new legal tools to ensure they receive fair residual payments.
• Piracy and Enforcement Issues: While the treaty strengthens performers’ rights on paper, its effectiveness depends on enforcement mechanisms in individual countries, which may vary in strength.

Potential Future Developments:

• Stronger AI Protections for Performers: Future updates to intellectual property laws may expand on how the treaty applies to AI-generated performances and digital replicas.
• Global Standard for Streaming Royalties: As streaming services dominate content consumption, there may be a push for standardized global agreements on performer royalties.
• Increased Adoption of the Treaty: More countries may ratify and implement the treaty, extending protections to a broader range of performers worldwide.

The Beijing Treaty on Audiovisual Performances represents a landmark step in protecting performers’ rights in a rapidly evolving entertainment landscape. By ensuring fair compensation, control over digital distribution, and protection from exploitation, the treaty redefines the power dynamics between performers, producers, and digital platforms.

Its adoption is particularly crucial in the age of globalized entertainment, online streaming, and artificial intelligence, where performers’ contributions can easily be misused without proper safeguards. However, the treaty’s long-term success depends on its widespread implementation and enforcement, particularly in developing film industries and digital-first economies.

As the entertainment industry continues to evolve, the Beijing Treaty lays the foundation for a fairer, more ethical audiovisual sector, ensuring that performers—who bring stories to life—receive the recognition, rights, and remuneration they deserve.

Challenges in Implementation

Despite its benefits, the Beijing Treaty faces several challenges in implementation:

• Varying National Laws: Different countries have diverse intellectual property laws, and not all have strong enforcement mechanisms. Some countries may struggle to fully implement the treaty due to legal and institutional limitations.
• Balancing Producer and Performer Interests: While the treaty benefits performers, it also requires careful negotiation to balance their rights with those of producers, ensuring that the film industry remains commercially viable.
• Enforcement Issues: With digital piracy and unauthorized online distribution still prevalent, enforcing performers’ rights under the treaty remains a significant challenge. Technological advancements must be matched with strong legal frameworks to prevent exploitation.
• Adoption by Major Film Markets: While many countries have ratified the treaty, some of the largest film-producing nations may be slow in implementing its provisions fully. Without widespread adoption, the treaty’s effectiveness could be limited.

Conclusion

The Beijing Treaty on Audiovisual Performances is a groundbreaking legal instrument that recognizes and protects the rights of audiovisual performers on a global scale. By granting both economic and moral rights, the treaty ensures that performers receive the recognition and compensation they deserve in the modern digital economy.

However, its success depends on widespread adoption, effective enforcement, and a balanced approach to safeguarding both performers and the film industry’s commercial interests. As the entertainment landscape continues to evolve, the Beijing Treaty represents a crucial step toward a fairer and more equitable global audiovisual industry.