On Monday, March 7, 2016, from 1:45 P.M. to 2:45 P.M., the US Patent and Trademark Office (USPTO) met with invited stakeholders in a briefing at the White House on the Beijing Treaty on Audiovisual Performances and the implementation package that was sent to Congress on February 29, 2016. The package was submitted for review to the Senate Foreign Relations and Judiciary Committees.
The Beijing Treaty implementation documents, along with the Marrakesh Treaty implementation documents, are available on the USPTO website at: http://www.uspto.gov/learning-and-resources/ip-policy/copyright/legislative-implementation-documents.
To summarize, the Beijing Treaty requires extending to audiovisual performers protections against unauthorized fixation of their performances.
The briefing was well-attended on phone and in person. Examples of participants from US government agencies, IP-related industries and nonprofits included: MPPA, AAP, CCIA, the Department of Education, USTR, IFPA, Time Warner, Google, ASCAP, SAG/AFTRA, Copyright Office, BSA, OST EOP, State Department, ESA, Policy Bandwidth, American University Washington College of Law, and KEI.
The USPTO, one of the agencies in charge of international affairs for IP, was represented by Shira Perlmutter, Chief Policy Officer and Director for International Affairs at the USPTO, with David Carson, Senior Counsel and Head of Copyright Policy Team, Office for Policy & International Affairs, USPTO, and Michael S. Shapiro, Senior Counsel, Office of Policy and External Affairs, USPTO.
The meeting started with Shira Perlmutter describing the background for this new treaty.
The Beijing Treaty was negotiated over a period of more than fifteen years, following the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), both of which the United States ratified in 1999. At the first diplomatic conference in 2000, there was no consensus on how performers could transfer to producers, by contract or otherwise, their exclusive rights regarding the uses of their performances. In 2010, the US drafted new language that permitted (without requiring) parties to provide in their domestic law for such a transfer of rights, once a performer has consented to the fixation of his or her performance. With this compromise, the Treaty received some support and a text was finalized at a diplomatic conference in Beijing on June 24, 2012. The Treaty had to be consistent with the US “work made for hire” doctrine, which is seen as an essential motion picture industry practice in the US.
The Beijing Treaty includes provisions on audiovisual performers’ exclusive rights of authorizing the broadcasting, communication, and fixation of their live performances; their exclusive rights of reproduction, distribution, rental, making available, and communication to the public of their fixed performances; technological protection measures and rights management information; certain moral rights; and national treatment. For the US this related right is a “new right,” or a sui generis right.
Since 2009, KEI has been one of the few public interest groups to publicly support the performers’ treaty or “AV treaty ” work at the meetings of the WIPO Standing Committee on Copyright and Related Rights in Geneva. While we welcomed the US delegation efforts to find a compromise in 2010 (Statement of KEI at WIPO SCCR 21, November 11, 2010, /node/1017), we also continued to ensure that the performers as well as the public interest in their performances were considered in the proposed provisions in 2012.
In May of 2015, KEI wrote to Shira Perlmutter, USPTO Chief Policy Officer and Director for International Affairs, and Ann Chaitovitz, Attorney-Advisor at USPTO, expressing our support for the WIPO Beijing Treaty on Audiovisual Performances, but also suggesting the serious issues that could arise should there be a wrongful implementation of the treaty. Specifically, we noted that a wrongful implementation could limit the fundamental scope of fair use for audiovisual works as well as other essential copyright exceptions. KEI was mostly concerned that this new right for “audiovisual performers” would be added to 17 U.S.C §1101 without the addition of any limitations or exceptions.
KEI recommended that the USPTO either introduce a term limit under § 1101, extend normal copyright exceptions and limitations to the rights created by the implementation of this Treaty, or add a completely new article for AV performers that would include limitations and exceptions. KEI believed (and continues to believe) that it is imperative for the “fair use” right to explicitly extend to the new regime of rights for audiovisual performers. It is essential that the creation of new rights does not negatively impact legitimate uses of such performances. (Letter from KEI to USPTO regarding implementation of Beijing Treaty, May 5, 2015, /node/2220)
KEI is pleased to see that the implementation package reflects our expressed concerns and recommendations from May 2015.
Given the expanded scope of coverage, the unlimited nature of perpetual statutory protection against reproduction or dissemination of unauthorized fixations could create more potential for overbreadth. As discussed in the sectional analysis, the proposed amendment therefore makes the prohibitions in section 1101(a) subject to the principal limitations applicable to the copyright rights of reproduction and distribution – the fair use and library limitations contained in sections 107 and 108 – and to a term based on the term of copyright protection in the U.S. Copyright Act. This broadened coverage would be prospective only (i.e., only relate to unauthorized fixations made after the date of enactment).
From The “Beijing Treaty Implementation Act of 2016” Statement of Purpose and Need and Sectional Analysis http://www.uspto.gov/learning-and-resources/ip-policy/copyright/legislative-implementation-documents.
Currently, § 1101 of the U.S. Copyright Act provides fixation rights to performers, but only in respect to their live musical performances. Section 1101 is also limited to “sounds or sounds and images,” and does not cover images without sound. In order to cover audiovisual performances, as provided for by Article 6 of the Beijing Treaty, the proposed amendment extends the protection currently given to musical performances under section 1101 to performances of all types of works that are capable of being performed.
The implementation package for the Beijing Treaty proposes to limit the enlarged scope of § 1101 by explicitly adding a subparagraph on “limitations” and “duration of protection.” The “limitations” subparagraph will read: “An act that falls within the limitations to exclusive rights provided in Section 107 or 108 shall not be considered a violation of this section.” Section 107 is a limitation on exclusive rights for fair uses, and section 108 is a limitation on exclusive rights for reproductions by libraries and archives. The provision for “duration of protection” is as follows: “it shall not be a violation of this Section to do any of the acts enumerated herein more than 95 years after the live performance described in paragraph (1) or (2).”
Currently, under section 1101, a person found to be in violation of section 1101 shall be subject to the remedies provided in sections 502 through 505: 17 U.S.C. §§ 502-505, to the same extent as an infringer of copyright.
Most stakeholders’ questions during the meeting regarded the remedies, as it is not clear how infringements will be be accounted for since there is no registration requirement and no definition of “works” other than “unauthorized broadcasting, communication, and fixation of a live performance.”
The enforcement section analysis in the USPTO briefing document states:
Under the U.S. Copyright Act, both civil and criminal penalties are provided for infringement of the exclusive rights of the copyright owner, including those exclusive rights granted to performers. 17 U.S.C. § 501(a); 17 U.S.C. §§ 502-506. Violation of the civil anti-bootlegging law, § 1101, is subject to the civil remedies provided for copyright infringement. When section 1101 was first enacted in 1994 to provide civil remedies with respect to unauthorized fixations of musical performances, section 2319A was also added to title 18 to provide criminal remedies with respect to such conduct when committed knowingly and for purposes of commercial advantage or private financial gain. The proposed Beijing Treaty Implementation Act of 2016 would broaden section 1101 to prohibit unauthorized fixations of other kinds of performance. Although existing criminal copyright law provides criminal penalties for violations of many of the rights recognized by the Beijing Treaty, Congress should consider under what circumstances criminal along with other remedies should be available to address unauthorized fixations of non-musical performances.
From The “Beijing Treaty Implementation Act of 2016” Statement of Purpose and Need and Sectional Analysis http://www.uspto.gov/learning-and-resources/ip-policy/copyright/legislat….
It is now in the hands of the 114th United States Congress.
KEI is grateful for the technical assistance of Gina Colarusso, 2L at American University Washington College of Law.