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 signed.

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 performer; and
  • 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 performances.

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 audiovisual recording.

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: yyong@peksung.com

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