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Strengthening creative sector through improved rights for artists, performers

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The Beijing Treaty on Audiovisual Performances officially entered into force on April 28, 2020, three months after the deposit of 30 instruments of ratification to the treaty by member states of the World Intellectual Property Organisation.

The treaty was adopted on June 24, 2012 at a diplomatic conference of WIPO member states after many years of negotiation. Nigeria initialed the Constitutive Act of the treaty at its adoption in Beijing in 2012. And on October 4, 2017, Nigeria deposited its instrument of ratification at the International Bureau of WIPO.

With a prolific movie industry, and one of the most dynamic entertainment industries, this Treaty bears significant implications for actors and creative performers in Nigeria.

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To commemorate the landmark entry into force of the treaty, the WIPO, Nigeria Office, in cooperation with the Nigerian Copyright Commission (NCC), held a national workshop (Webinar) with the theme: Strengthening Nigeria’s Creative Sector through Improved Rights for Artists and Performers.

The panel discussion featured policy makers, as well as leading members of Nigeria’s creative sector to explore opportunities and challenges for Nigerian performers through improved rights protection, and general awareness on the significance of the new treaty to the creative industry in Nigeria.

Panelists who examined the essence and prospects of the treaty in impacting the fortunes of audiovisual performers were Mr. Oluwatobiloba Moody, Programme Officer, WIPO Nigeria Office; Ms. Carole Croella, Senior Counsellor, Copyright Law Division of WIPO; Mr. Mahmood Ali-Balogun, Chairman, Audio Visual Rights Society of Nigeria (AVRS); Ms. Omoni Oboli, actress and producer; Ms. Kate Henshaw, actress; Mr. Justin Ige, Managing Partner, Creative Legal; Mr. Mike Akpan, Director, National Copyright Institute (NCI) of NCC with Dr. Chijioke Okorie, Lead Advisor of Penguide Advisory moderating.

In his opening remarks, the Director-General of NCC, Dr. John O. Asein, disclosed that Nigeria, in the ongoing reform of its copyright system, is taking steps towards the domestication of the provisions of the treaty.

Expressing concern over the loss of revenue in the audiovisual industry, he assured that the Commission would work with the guilds, associations and collective management organisation in the industry to develop appropriate mechanisms to ensure greater return on creative investment.

He noted that such interventions would necessitate looking into various aspects of the industry, including engagement contracts, distribution bottlenecks, online abuses and rights management issues.

The NCC boss reaffirmed the commission’s commitment to improving the protection available to audiovisual performers, especially “in today’s digital environment where copyright works are easily retransmitted on various online platforms often without recourse to the right owners or the performers.”

While noting that the country’s film industry ranked among the top three in the world in terms of output, he expressed worry that the ranking has not translated to real economic benefit and enhanced status for the performers “who stand before the lights and cameras transforming scripts to action.”

Asein expressed sadness that in recent times, well-known film and television actors faced with health challenges have had to appeal to the public for assistance, which often came in trickles or a little too late.

“The current global pandemic has further amplified the vulnerability of creators – authors, musicians, actors and other performers – and it underscores the need to have a fallback system to sustain them beyond their active years and especially in time of economic downturn. These are people who generate or bring life to the copyright works that we enjoy but in most cases they do not have access to any form of pension or gratuity,” he stated.

The Diplomatic Conference on the Protection of Audiovisual Performances, which held in Beijing from June 20 to 26, 2012, adopted the treaty on audiovisual performances. The treaty modernises and updates for the digital era the protection for singers, musicians, dancers and actors in audiovisual performances. It upgrades the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961) and complements the WIPO Performances and Phonograms Treaty (WPPT), which updated protection for performers and producers of phonogramsmes.

The treaty encompasses the performances of actors in different media, such as film and television, and also includes musicians when their musical performances are recorded in a DVD or any other audiovisual platform. It grants performers economic rights in fixed and unfixed performances, as well as certain moral rights.

Under the treaty, performers are accorded four kinds of economic rights for their performances fixed in audiovisual fixations, namely: the right of reproduction; the right of distribution; the right of rental; and the right of making available.

The treaty obliges each contracting party to adopt, in accordance with its legal system, the measures necessary to ensure the application of the Treaty, including ensuring that enforcement procedures are available for effective action against any act of infringement of rights.

In separate remarks, accomplished filmmaker, Oboli and veteran actress, Kate Henshaw called for intensified enforcement interventions against piracy to ensure sustainable development of the Nigerian film industry.

Oboli stated: “The Treaty is great but the challenge is piracy. As a producer, I want my rights protected and earn better. Piracy is affecting producers; they are not making their money back.”

She called on performers to build their brands considering that broadcasting organisations sign contracts with producers who paid performers based on their marketability.

Ali-Balogun said the benefits of the Beijing Treaty in according performers the performance right to be identified with their performances, the right of communication of their performances to the public and moral right to the integrity of their performance. He called for early domestication of the Treaty and for a more effective regulation and enforcement of rights in the digital environment.

He noted that the NCC to which it submits its yearly reports, as a company limited by guarantee approved the Audio Visual Rights Society (AVRS), as a collective management organisation (CMO). He informed that the AVRS, which has responsibility for producers and performers, paid royalties to its members for the first time this year.

According to Ms. Croella of WIPO, the treaty provides an international framework and a balanced approach to guarantee the economic right of audiovisual performers, among others.

She noted that Nigerian authorities represented by NCC officials played a significant role in the negotiation of the treaty. Observing that Nigeria has a comparative advantage in the creative industry, Ms. Croella stated: “We are confident that the NCC has all the expertise for the success of the Treaty but WIPO is willing to support the Commission.”Ige observed that the treaty distinguishes performers’ rights from producers’, adding that the Treaty created a separate stream of income for performers.

“I suggest that NCC should make the right to equitable remuneration inalienable and guaranteed under the statute. This does not put any burden on the producer but on the broadcasting and streaming organisations,” he remarked.

Ige added that CMOs should be held accountable for timely and accurate distribution of royalties in a transparent and accountable manner. Also speaking, Akpan indicated that the adoption of the Treaty coincided with the drafting of a new Copyright Bill approved by the Federal Executive Council and pending consideration by the National Assembly, adding that the draft Copyright Bill has made provisions for all the rights granted performers under the Treaty. “In general terms, the draft bill also contains provisions for proactive measures towards dealing with online infringements; safeguards for technological protection measures (TPMs) and rights management information (RMI) systems; and provisions for administrative mechanisms of resolving royalty issues arising from remuneration due to performers in the use of their fixed performances.”

He stated that the commission would broker discussions among key stakeholders to engender effective implementation of the Treaty in a manner that would ensure that performers could fully appropriate the benefits of their rights.

Akpan pointed out that the model contracts issued by the Commission would serve as guidance to practitioners in the various copyright industries as a head start for repositioning the sector for a new regime of rights created by both the Beijing Treaty and anticipated in the Copyright Bill. He indicated that a new copyright regime would entrench a more professional management framework for CMOs that would ensure that all participants, especially audiovisual performers have benefit from the system.

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