The Proposed New WIPO Treaty for Increased Protection for Audiovisual Performers: Its Provisions and Its Domestic and International Implications

Fordham Intellectual Property, Media and Entertainment Law Journal, Sep 2017

By Adler Bernard, Published on 03/01/02

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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 Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Recommended Citation - Commons 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 one’s 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 1090 FORDHAM INTELL. PROP., MEDIA & ENT. L.J. [Vol.12: Conversely, in countries such as France, Japan, and in regions such as Latin America and francophone Africa, an artist’s 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 author’s right in his work is one of the basic Rights of Man the French embraced in their Revolution of 1789.”2 Preservation of an artist’s “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 artist’s 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 one’s home in Accra, Ghana. This increased exposure has expanded the artist’s 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 Organization’s (hereinafter “WIPO”) Performances and Phonograms Treaty (hereinafter “WPPT”) adopted in 1996,7 dome (...truncated)


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Adler Bernard. The Proposed New WIPO Treaty for Increased Protection for Audiovisual Performers: Its Provisions and Its Domestic and International Implications, Fordham Intellectual Property, Media and Entertainment Law Journal, 2018, Volume 12, Issue 4,