The Beijing Treaty on AudioVisual performances was adopted by the World Intellectual Property Organisation (WIPO) in 2012. It recognised that protection for performers under the WIPO Performers and Phonograms Treaty of 1996 (which is the basis for musicians receiving Equitable Remuneration from PPL) did not extend to performers in AudioVisual works.
The UK supported and adopted the Beijing Treaty back in 2013 but did not ratify it, therefore it was not implemented into UK law. Now that the UK is no longer in the EU, the government has decided to formalise the treaty and in 2021, called for initial views from organisations.
A further call for views on its implementation in 2023 led to organisations submitting their opinions this November. How the treaty currently works is listed below.
How the Beijing Treaty currently works with contracting states and the options open for implementation
The Beijing Treaty leaves options open to contracting states as to how they wish to implement.
Under Article 11 (which deals with broadcasting and communication to the public of performances in audiovisual fixations, for example broadcasting films and television programs and screening films in a cinema), contracting states can:
- Give performers the exclusive right to authorise the broadcasting and communication to the public of their AudioVisual performances
- Establish a right to Equitable Remuneration
- Apply either points 1 and 2 in respect of certain uses, or do not apply either points 1 or 2
They can also implement the right of Making Available (non-linear streaming rights), which at this time the government has said it will not be considering further.
What Exclusive Rights and Equitable Remuneration mean in relation to contracting states and the Beijing Treaty
1. Exclusive Rights
For the first time performers would enjoy exclusive statutory rights for their performances in AudioVisual works. These could be licensed or assigned, much as at present, however where no contract exists, performers will have far greater bargaining powers.
2. Equitable Remuneration
Performers would receive fair payment for each performance communicated or broadcast to the public. Once implemented, reciprocating member states would be compelled to honour the treaty in the UK, thus performers would also receive Equitable Remuneration from those states through collecting societies.
The MU has made clear to government that musicians would be served best by Equitable Remuneration
In response to the consultation, the MU feels strongly that the fairest and most equitable implementation would be through Equitable Remuneration. For example, actors in the UK benefit from a well-established royalty system for further use, whereas session musicians are mostly paid by upfront fees.
It is also important to note that in its consultation, government has asked for a view on only Exclusive Rights and Equitable Remuneration. The other option (other than no implementation of the treaty), is that of Making Available.
We have made clear to government that musicians would be best served by Equitable Remuneration, but have also asked them to consider putting Making Available back on the table for further discussion. We will update members as this develops.