As discussed in my August 4 blog post, WIPO has shown a recent and enlivened interest in developing international copyright-based protection for an actor's audiovisual performance. Further to its purpose of protecting performance rights for actors, WIPO has recently announced that it intends to convene a diplomatic conference in 2012 to finalize a treaty protecting the rights of actors in their audiovisual performances.
The preliminary drafts of the proposed WIPO Treaty for the Protection of Audiovisual Performances give the exclusive right in the first instance to actors for the download of their performances by wire and wireless means.The current draft of the treaty provides in pertinent part that "Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in audiovisual fixations, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them." In other words, the treaty gives actors the exclusive right to control on-demand downloads of movies. As an alternative to granting actors exclusive rights over movie downloads on demand, the proposed treaty allows a contracting party to "establish a right to equitable remuneration for the direct or indirect use of performances."
A proposed amendment to the current draft would permit the transfer of the actor's exclusive right to the producer of the audiovisual work. "Contracting Parties may provide in their national law that once a performer has consented to incorporate his or her performance in an audiovisual fixation, the exclusive rights of authorization * * * shall be owned or exercised by the producer of the audiovisual fixation."
It will be interesting to understand how the proposed international protection of audiovisual performances will play out in the U.S. Under the U.S. Copyright Act, a motion picture or other audiovisual work is deemed to be a work for hire, meaning that the authorship (and the right to copyright in the first instance) vests with the commissioning party, provided that there is a writing signed by the parties indicating that the work is a work for hire. Since application of U.S. law stops at the border, there may be a real concern on the part of motion picture and audiovisual producers, distributors and lenders regarding an independent performance right of actors in on-demand downloads occurring outside of the U.S. If foreign law does not recognize the U.S. work for hire rule in relation to the actor's performance rights, then the work for hire principle may not have much viability for overseas on-demand downloads of audiovisual and motion picture work. In this case, producers and commissioning parties may need to re-evaluate their actor compensation models and actor assignment agreements. Importantly, given the longevity of copyright interests in motion pictures and audiovisual work, producers, distributors, commissioning parties and actors should begin planning now for the potential impact of WIPO's proposed treaty.