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Protection for our Filipino audiovisual performers.

Every Filipino can sing, dance, act, entertain and perform. After all, we are a 'happy' people-despite or because of the daily grind and realities of poverty, hunger, unemployment, miseries and other human concerns. We take pride in our countrymen performing abroad in classy hotels, nightclubs, Broadway/West End productions and winning in international and regional talent competitions. Yet, while international performers (through the companies/paid managers representing them) demand monetary compensation/royalties for each of their songs/performances here in this country, we have not been as vigilant nor concerned about protecting our very own Filipino performers here and abroad. But change appears to be happening.

The Intellectual Property of the Philippines (IP Philippines) has asked for a consultation meeting with our Filipino Performers through the Performers' Rights Society of the Philippines led by Leo Martinez, Gina Alajar, Joel Torre, Mitch Valdez and Cherie Gil, among others, to discuss The Beijing Treaty For Audio Visual Performances (BTAP) of 2012. (I have advocated with some of these performers in the recent past!) Although Audio Visual Performers are given coverage in the existing Intellectual Property Code (under Chapters VI and XII), 'recent developments in technology for the fixation, transmission and replication of audiovisuals may compromise or interfere with the protection and monetization of performers' rights' (Debbie P. Gaite, managing director, PRSP).

The Beijing Treaty on Audiovisual Performances was adopted by the Diplomatic Conference on the Protection of Audiovisual Performances, which took place in Beijing from June 20 to 26, 2012. The Treaty deals with the intellectual property rights of performers in audiovisual performances. It grants performers four kinds of economic rights for their performances fixed in audiovisual fixations, such as motion pictures: (i) the right of reproduction; (ii) the right of distribution; (iii) the right of rental; and (iv) the right of making available.

The right of reproduction is the right to authorize direct or indirect reproduction of the performance fixed in an audiovisual fixation in any manner or form.

The right of distribution is the right to authorize the making available to the public of the original and copies of the performance fixed in an audiovisual fixation through sale or other transfer of ownership.

The right of rental is the right to authorize the commercial rental to the public of the original and copies of the performance fixed in an audiovisual fixation.

The right of making available is the right to authorize the making available to the public, by wire or wireless means, of any performance fixed in an audiovisual fixation, in such a way that members of the public may access the fixed performance from a place and at a time individually chosen by them. This right covers, in particular, on-demand, interactive making available through the Internet.

As to unfixed (live) performances, the Treaty grants performers three kinds of economic rights: (i) the right of broadcasting (except in the case of rebroadcasting); (ii) the right of communication to the public (except where the performance is a broadcast performance); and (iii) the right of fixation.

The Treaty also grants performers moral rights, that is, the right to claim to be identified as the performer (except where such an omission would be dictated by the manner of the use of the performance); and the right to object to any distortion, mutilation or other modification that would be prejudicial to the performer's reputation, taking into account the nature of the audiovisual fixations.

The Treaty provides that performers shall enjoy the right to authorize the broadcasting and communication to the public of their performances fixed in audiovisual fixations. However, Contracting Parties may notify that, instead of the right of authorization, they will establish a right to equitable remuneration for the direct or indirect use of performances fixed in audiovisual fixations for broadcasting or communication to the public. Any Contracting Party may restrict or-provided that it makes a reservation to the Treaty -deny this right. In the case and to the extent of a reservation by a Contracting Party, the other Contracting Parties are permitted to deny, vis-a-vis the reserving Contracting Party, national treatment ('reciprocity').

As to the transfer of rights, the Treaty provides that Contracting Parties may stipulate in their national laws that once a performer has consented to the audiovisual fixation of a performance, the exclusive rights mentioned above are transferred to the producer of the audiovisual fixation (unless a contract between the performer and producer states otherwise). Independent of such a transfer of rights, national laws or individual, collective or other agreements may provide the performer with the right to receive royalties or equitable remuneration for any use of the performance, as provided for under the Treaty.

As to limitations and exceptions, Article 13 of the Beijing Treaty incorporates the so-called 'three-step' test to determine limitations and exceptions, as provided for in Article 9(2) of the Berne Convention, extending its application to all rights. (The 'three-step' test was first enacted in the 1967 Revision of the Berne Convention. It provides that 'it shall be a matter for legislation in the countries of the Union to permit the reproduction of such works (a) in certain special cases, provided that (b) such reproduction does not conflict with a normal exploitation of the work and (c) does not unreasonably prejudice the legitimate interests of the author.') Such limitations and exceptions as established in national law in compliance with the Berne Convention may be extended to the digital environment. Contracting States may devise new exceptions and limitations appropriate to the digital environment. The extension of existing or the creation of new limitations and exceptions is allowed if the conditions of the 'three-step' test are met.

The term of protection must be at least 50 years.

The enjoyment and exercise of the rights provided for in the Treaty cannot be subject to any formality.

The Treaty obliges Contracting Parties to provide for legal remedies against the circumvention of technological measures (e.g., encryption) used by performers in connection with the exercise of their rights, and against the removal or altering of information-such as the indication of certain data that identify the performer, performance and the audiovisual fixation itself-necessary for the management (e.g., licensing, collecting and distribution of royalties) of the said rights ('rights management information').

The Beijing Treaty will enter into force three months after 30 eligible parties have deposited their instruments of ratification or accession with the director general of the World Intellectual Property Organization.

It is hoped that our Philippine Senate will be among the first to accede to this Treaty-it is time we did something for our Filipino performers...who paradoxically sing (perform) for a living but are 'unsung' and in penury upon death.

We have just lost OPM Icon Rico J. Puno. Many other world-class Filipino performers have gone before him and received the adulation and recognition they well deserve. I hope that their families and loved ones will enjoy the royalties and equitable remuneration long after they are gone.

We love you Rico J. Puno. Go in Peace!
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Publication:Business Mirror (Makati City, Philippines)
Date:Nov 5, 2018
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