The Proposed New WIPO Treaty for Increased Protection for Audiovisual Performers: Its Provisions and Its Domestic and International Implications
The P roposed New WIPO Treaty for Increased Protection for Audiovisual Performers: Its Provisions and Its Domestic and International Implications
Adler Bernard 0
0 Part of the Entertainment , Arts, and Sports Law Commons, and the Intellectual Property Law
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The P roposed New WIPO Treaty for Increased Protection for Audiovisual
Performers: Its Provisions and Its Domestic and International Implications
The Proposed New
WIPO Treaty for
Increased Protection for Audiovisual
Performers: Its Provisions and Its
Domestic and International Implications
Adler Bernard*
INTRODUCTION
Creative control over ones artistic endeavor is an important right
that an artist strives to retain. In addition to creative control, artists
seek to prevent the unlawful distribution of the creative product,
insist on being acknowledged as the creator of the work, and aim to
achieve adequate compensation for the creation. Through union
organization, treaties and national legislation, countries have tried to
ensure that these rights, and others, are protected for those men and
women whose talents have enlightened, challenged, and entertained
us for centuries.
Utilitarian principles adopted in the U.S., and other common law
countries, serve as a basis for affording copyright protection to
writers, musicians and thespians under these legal regimes. These
individuals are granted financial remuneration in return for access to
their products. Through financial encouragement and statutory
protection, artists and society as a whole benefit. In the U.S.,
copyrighted material including books, phonographs and audiovisual
works, and the administrative processes associated with the creative
arts are great sources of wealth both domestically and internationally.
Due to this union of creativity, economics and legislation, the U.S.
remains the premier exporter of entertainment content throughout the
world.1
* The author is a former employee of Sony Music Publishing; J.D. expected 2002, George
Washington University Law School; B.A., New York University, 1997. The author would
like to thank Professor Ralph Oman of George Washington University, Martino & Julie
Bernard, Stan Bernard, Ralph Bernard, and Tara Scott.
1See S. REP. NO. 104-315, at 9 (1998) (noting that the U.S. exports more copyrighted
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Conversely, in countries such as France, Japan, and in regions such
as Latin America and francophone Africa, an artists work product is
viewed as an extension of his or her personality. Ralph Oman,
George Washington University Law School Professor and former
U.S. Register of Copyrights, noted that [t]he authors right in his
work is one of the basic Rights of Man the French embraced in their
Revolution of 1789.2 Preservation of an artists Natural Rights,
as opposed to his or her rights to economic compensation, is the
primary reason why nations such as France seek to establish
adequate means of protection for the moral or spiritual aspects of
an artists work product.
Technological developments have given rise to increased modes of
distributing creative content, thus allowing purveyors of art to access
creative works from almost anywhere in the world. For example,
one could view the latest installment at the Whitney Museum in New
York City from the comfort of ones home in Accra, Ghana. This
increased exposure has expanded the artists potential audience and
has created additional sources of revenue. However, with
technological innovation and increased exposure have come
numerous logistical and legal problems for artists, utilitarian
proponents and the natural rights regime legislators who scramble to
keep the law in step with our rapidly changing society.
Via the International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations
(hereinafter ROME),3 the 1976 U.S. Copyright Act,4 the
Agreement on Trade-Related Aspects of Intellectual Property
(hereinafter TRIPS),5 various E.U. Directives6 and most recently
intellectual property than any other country in the world).
2 See Professor Ralph Oman, The Impact of the Berne Convention on U.S. Copyright
1, 6, Address at the International Intellectual Property Association (Oct. 24, 1996).
3 See International Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations, Oct. 26, 1961, 496 U.N.T.S. 43 [hereinafter
ROME].
4 See 17 U.S.C. § 101 (1995).
5 See Agreement on Trade-Related Aspects of Intellectual Property Rights, Dec. 15,
1993, art. 9, 1869 U.N.T.S. 299, 33 I.L.M. 81, 87 [hereinafter TRIPS].
6 See MARJUT SALOKANNEL, OWNERSHIP OF RIGHTS IN AUDIOVISUAL PRODUCTIONS: A
COMPARATIVE STUDY Art. 5(1) (1997).
the World Intellectual Property Organizations (hereinafter WIPO)
Performances and Phonograms Treaty (hereinafter WPPT) adopted
in 1996,7 dome (...truncated)