On April 24, 2014, the Standing Committee of the National
People'2 Congress ratified the Beijing Treaty on Audiovisual
Performances, which was signed in Beijing on June 24, 2012 at the
World Intellectual Property Organization's Diplomatic
Conference on the Protection of Audiovisual Performances.
The Beijing treaty aims to protect the IP rights of performers
in audiovisual recordings and, so far, 72 member states have signed
it , with China the third country to ratify it. The Beijing treaty
is not yet in force but will come into force three months after 30
eligible parties have deposited their instruments of ratification
or accession. Experience shows that it usually takes six to ten
years for a treaty to enter into force from the date it is
The Beijing treaty is the first such international treaty to be
signed in the People's Republic of China. It defines
'performers' as actors, singers, musicians, dancers, and
other people who act, sing, deliver, declaim, play in, interpret,
or otherwise perform literary or artistic works or expressions of
folklore. The inclusion of the latter three is of particular
significance to China as it is beneficial for the promotion and
export of traditional Chinese culture.
The treaty provides performers with the following exclusive
rights over their performances in audiovisual recordings:
The right of reproduction, which is the right to authorise
direct or indirect reproduction of the performance in an
audiovisual recording of any manner or form;
The right of distribution, which is the right to authorise the
making available to the public of the original and copies of the
performance in an audiovisual recording through the sale or other
transfer of ownership;
The right of rental, which is the right to authorise the
commercial rental to the public of the original and copies of the
performance in an audiovisual recording, even after the
distribution of it by, or pursuant to, authorisation by the
The right to make available, which is the right to authorise
making available to the public, by wire or wireless means, of any
performance in an audiovisual recording in such a way that members
of the public may access the performance from a place and at a time
individually chosen by them.
It should be noted that this provision covers on-demand,
pay-per-view and other forms of interactive offering through a
system or media such as the internet.
As for live performances, the treaty gives performers the right
to broadcast and communicate to the public recordings of their
The treaty provides that performers shall enjoy the right to
authorise the broadcast and communication to the public of their
performances in audiovisual recordings. However, the treaty also
provides that a contracting state may declare that instead of the
right of authorisation, it will establish a right to equitable
remuneration for the direct or indirect use of audiovisual
performances for broadcasting or communication to the public and
that a contracting state may set conditions for the exercise of the
right to equitable remuneration, or limit the right in this
paragraph, or deny it.
In addition, the treaty also grants performers moral rights,
which include the right to claim to be identified as the performer
(except where omission is 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
As for the transfer or rights, the treaty prescribes that a
contracting state may stipulate in its national laws that once a
performer has consented to an audiovisual performance, the
exclusive rights mentioned above are transferred to the producer of
the audiovisual recording, unless a contract between the performer
and the producer prescribes otherwise.
Independent of such a transfer of rights, national laws or
individual, collective or other agreements may provide the
performer with the right to rece4ive royalties or equitable
remuneration for any use of the performance.
The Beijing treaty prescribes that the term of protection must
be at least 50 years.
Stephen Yang is a partner and patent attorney at Peksung
Intellectual Property. He can be contacted at:
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