On June 26, WIPO and its member states concluded a long-negotiated treaty providing audio-visual performers (eg actors) with moral rights over their work. However, it is not yet clear whether this will give performers the control over their work that many would like.
Performers in Australian films, television programs and other audio-visual media already have some limited rights under the Copyright Act 1968. But, performers argue, they have very little in terms of moral rights or economic rights.
Similar complaints have long been made by performers overseas. After years of negotiation, and much pressure from actors’ guilds (and international movie stars such as Meryl Streep and Javier Bardem), WIPO and its members have agreed to the Beijing Treaty, which seeks to give performers in audio-visual works a set of ‘moral rights’ regarding the use of their work.
To help you become an expert in performers’ rights, we’ve set out below some of the key issues in a friendly Q&A format:
What rights do performers have in audio-visual works?
Under the Copyright Act, all performers including actors, dancers and musicians have the right to consent (or refuse to consent) to their performance being filmed or broadcast – known as performers’ rights. Consequently, when a performer is asked to be in a film or TV program they’re usually required to sign a contract or document that provides this consent. After they provide consent, they have no say in what happens to their work, and receive no further revenue for its use, unless this has been negotiated in their contract – which is not often (it helps if you’re a very famous performer, of course).
What about moral rights?
Moral rights are an additional, separate set of rights under the Copyright Act that include the right to be credited and the right to prevent your work from being subject to derogatory treatment. However, the only creators who receive the protection of moral rights under the Copyright Act are ‘authors’ of an audio-visual work (including the writer, director and producer) and performers on sound recordings (eg CDs, MP3 files etc). Performers in an audio-visual work are not entitled to any moral rights.
So, what’s the problem with the current system?
In practical terms, this means that the following problems can arise:
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An actor in a film or TV show that is sold overseas has no legal right to payment for foreign broadcasts or DVD sales (this usually goes to the producer).
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Once an actor has consented to their performance being filmed, actors in most countries (including Australia) are not able to assert any moral right, firstly, to be credited or, secondly, to prevent their work being distorted or mutilated.
What does the Beijing Treaty seek to do?
In short, the WIPO Beijing Treaty seeks to ensure that:
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performers in audio-visual works be given rights to authorise the use of their work (including overseas sales and broadcasts, DVD sales and rentals, and distribution on the internet).
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performers are granted moral rights in their work to ensure they’re credited and that their work is not distorted or mutilated.
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the period of protection is extended to 50 years from the year the performance was recorded.
Importantly, however, the Beijing Treaty also seeks to recognise that producers require a level of certainty to be able to exploit the audio-visual work. As such, Article 12 of the Treaty specifically provides for performers’ authorisation rights to be transferred to the producer as soon as the performer has provided consent to their performance being filmed.
When does this become law?
For the Treaty to become law in Australia it first needs to be ratified by 30 eligible parties (including member counties and certain intergovernmental organisations) and then the Australian Government would need to introduce a bill to amend the Copyright Act in line with the Treaty. We expect that a consultation period or ‘review’ would take place first that would allow all interested parties to have their say on the proposed amendments.
What will be the likely impact on performers in Australia?
Because Article 12 provides for the transfer of the authorisation rights back to the producer, the effect of the rights will be largely symbolic. Nevertheless, after years of struggling to enshrine their moral rights in law, even a symbolic victory for performers is sweeter than no victory at all. And, from a performer’s perspective, if the rights are in law rather than just in contract it will put them in a more equal bargaining position with other parties (such as producers).
Peter Carstairs & Owen Webb
