The Beijing Treaty on Audiovisual Performances The Return of the North?

Abstract

This article analyzes the Beijing Treaty on Audiovisual Performances with the purpose of unveiling the contradictions between the treaty’s proclaimed distributive goals and its de facto proprietary corporate lean. I argue that it is doubtful whether the treaty is likely to provide audiovisual performers with cross border remuneration and increase audiovisual performers’ share in the revenues and financial proceeds of audiovisual works. On the contrary, under the treaty’s mixture of a broad national treatment requirement, a limited reciprocity requirement and an indefinite transfer of rights regime, regressive scenarios seem no less probable. The more likable scenario is that it is audiovisual producers, from certain specific countries (e.g. the USA) that would benefit from a second layer of cross border overlapping rights that would come on top of their copyrights in audiovisual works; thus while undermining the revenues of domestic audiovisual performers. The contradictions between the treaty’s proclaimed distributive goals and its de facto corporate lean do not derive solely from the treaty’s explicit legal ordering. Rather, these contradictions derive also from the interface and correspondence between the Beijing Treaty and the particulars of domestic legal regimes, including norms that are located beyond formal I.P law. Gaps and arbitrages in the legal formulation of protecting audiovisual performers’ rights (e.g. the acknowledgment of exclusive, yet transferable, rights versus protection through a right to equitable remuneration) may impact effective reciprocity in the capacities of audiovisual performers, from different countries, to enforce their rights elsewhere. It is for this reason that international I.P. law making should asses the forecasted impact of an international treaty also through the lens of its future implementation under certain particular domestic conditions that may go beyond the treaty’s formal imperatives. As the Beijing Treaty demonstrates, without such an assessment, the practical outcomes of a treaty may contradict its proclaimed goals.