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WIPO's Beijing Treaty Officially to Enter into Force in Indonesia
2020-05-17 12:00:21

The WIPO’s Beijing Treaty has officially entered into force as of 28 April 2020, as Indonesia ratified the treaty by enacting the Presidential Regulation No. 20 of 2020 on the Ratification of the Beijing Treaty on Audiovisual Performances and has deposited the instrument ratification along with Marrakesh Treaty to WIPO’s Director General on 28 January 2020 in Geneva, Switzerland.[1] Indonesia became the 30th contracting party joining in the Beijing Treaty and as a result of this, Beijing Treaty officially entered into force, as it has fulfilled the provision on Article 26 of the Treaty.

Article 26 of the Beijing Treaty stipulates that “the treaty shall enter into force three months after 30 eligible parties referred to in Article 23 have deposited their instruments of ratification or accession.”

Before Indonesia deposited the ratification instrument of the Beijing Treaty, there were another 29 countries that have done so, such as Japan, China, Qatar, United Arab Emirate, Democratic People's Republic of Korea, and so on. Indeed, by this enforceability, it would be a good news for the performers, ranging from actor, singers, musicicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or perform literary or artistic work or expressions, or folklore, including those who perform a literary or artistic work created or first fixed in the course of a performance, amidst the negative impact of production by the economic fallout from the Covid-19 pandemic in Indonesia.

One of the reasons why Indonesia ratified Treaty Beijing is to make it as a legal basis to assist the implementation of audiovisual works for the performers shown on the electronic media, since the development of technology has increased significantly for the performers in Indonesia.

Beijing Treaty at a Glance

The WIPO Beijing Treaty on Audiovisual Performances (BTAP) which was adopted on 24 June 2012[2] is a multilateral treaty acknowledging for the first time the intellectual property rights of performers with regard to their audiovisual performers.[3] As from where this treaty takes its name, the WIPO states members approved the Beijing Treaty at a Dipolomatic Conference hosted by the Chinese Government in Beijing. This treaty is open for the all WIPO states members and European Union.

Historically, the Beijing Treaty is a treaty which modernizes the protection for singers, musicians, dancers, and actors in digital era which is previously merely included in the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations in 1961.[1] The difference of this treaty however is that it regulates exclusive rights more comprehensively and moral rights for the performers and the protection on fixed audiovisual more specifically, while Rome Convention did not.

This Beijing Treaty also updates the provisions on the WIPO Performances and Phonograms Treaty (WPPT), which entered into force in 2002, granting rights regarding audio recordings  only from the performance or other audio works.

Things Regulated in Beijing Treaty

In Article 4 paragraph (1) and (2) of this treaty, it regulates that the contracting parties shall grant the protection for the performers as the beneficiaries, who are:

  1. Nationals of other contracting parties.
  2. Not nationals of one of the Contracting Parties but who have their habitual residence in one of them.

Moreover, Beijing Treaty does regulate both moral rights and economic rights for the performers. For the former, according to Article 5 (1) of the treaty the performers have the rights to:

  1. claim to be identified as the performer of his performance, except where omission is dictated by the manner of the use of the performance;
  2. object to any distortion, mutilation, or other modification of his performances that would be prejudicial to his reputation.

Meanwhile, for the latter, the treaty consists of two kinds of exclusive economic rights for the beneficiaries’ performances, which are for fixed and unfixed (live) audiovisual performance. For the fixed performance it has (i) the rights to reproduce, (ii) the rights to distribute, (iii) the rights to rental, and (iv) the rights of making available of fixed performance. On the other side, for the unfixed performance, it has (i) the rights to broadcast (except in the case of rebroadcasting), (ii) the rights to communicate to public (except where the performace is the broadcast performance), and (iii) the rights to fix of their unfixed performances. All of the economic rights provisions are regulated in from Article 7 to 11.

This treaty also grants a freedom for the contracting parties to regulate the transfer of rights from the performances to the producers of fixed audiovisual (Article 12).

In addition, in regard to the term of protection, Article 14 of the the treaty eludicates that “to be granted to performers under this treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed.”

Last but not least, the legal remedies against the circumvention of technological measures (Article 15) and Rights Management Information – information indentifiying performer, its performance, or the owner – which regulates legal remedies against any person knowingly performing or with respect to civil remedies removing or altering Rights Management Information without authority and distributing, importing, broadcasting, etc, to public without authority (Article 16) are also regulated in this treaty.

Beijing Treaty and Indonesian Copyright Law

Prior to the enforceability of Beijing Treaty, the Law of the Republic of Indonesia No. 28 of 2014 on Copyright in fact has already adopted the treaty, as confirmed by the minister of law and human right, Yasonna H. Laoly when attending  the 58th Meeting of General Assembly of the World Intellectual Property Organization (WIPO) in Geneva, Switzerland on 24 September 2018.

He said: “Regarding copyright, we have adopted the Marrakesh Treaty and Beijing Treaty under Law Number 28 of 2014 on Copyright”.[1]

To make it sure, for example it can be seen in from Article 22 and 23 of Indonesian Copyright Law, as those articles have adopted moral and economic rights from the Beijing Treaty’s provisions.

By ratifying the Treaty Beijing, this will indeed give more specific stipulations for the audiovisual performers and their works which have not been specifically regulated yet in Indonesian Copyright Law since the audiovisual stipulations are still referred to the phonogram provisions. 

In short, as the Treaty Beijing has entered into force in Indonesia, of course audiovisual performers will feel safe and have equal rights to other creators, whose rights have been protected in creating their works under the Copyright Law prior to enforceability of this Treaty. Apart from that, Indonesia through its government will also be able to conduct legal action against copyright infringements which are carried out by the third parties on the electronic

media and will increase the economic income from creative industries as the government is extremely supporting this industry nowadays. By having this treaty, it also will grant rights protection for some wanting to recreate some works, like music or movie, into another form of electronic media, for example.

Source: Beijingtreaty, Kemenlu, DGIP, WIPO International

 

[1] https://kemlu.go.id/jenewa-un/id/news/4451/indonesia-usung-era-baru-perlindungan-kekayaan-intelektual

[2] https://www.wipo.int/treaties/en/ip/beijing/

[3] https://beijingtreaty.com/about/what-is-the-beijing-treaty/

[1] WIPO, “Main Provisions and Benefits of the Beijing Treaty on Audiovisual Performances 2012”, Geneva, 2016, hlm. 2.

[1] https://dgip.go.id/indonesia-telah-ratifikasi-traktat-beijing-untuk-lindungi-pelaku-seni-pertunjukan



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