WIPO Is Quietly Signing An Agreement To Give Hollywood Stars Their Own Special Version Of Copyright

from the why? dept

We’ve mentioned that the copyright maximalists of the world never stop in their ongoing efforts around the globe to expand government granted monopoly privileges. Back in April we warned about an upcoming negotiation on an “audiovisual right” that would create an entirely new — and entirely unnecessary — form of “copyright” for performers themselves. Copyright, of course, goes to whoever “fixes” the work. So, for movies, the studio producing it gets the copyright. But this treaty goes above and beyond that and would grant the actors in video works entirely separate rights, allowing them to control how their images are used around the globe.

And, of course, while everyone’s been paying attention to things like the ACTA vote in the EU, this treaty has moved forward and may be signed as soon as today from the sound of things. I have yet to see a reasonable explanation for this, other than “gee, actors would really like it if we gave them monopoly rights.” Reuters quotes WIPO’s maximalist-in-chief, Francis Gurry insisting that “it’s a real problem” but never actually defining how it’s a problem:

They also have no rights in many countries if their work is manipulated in any way that may harm their reputation.

“It’s a real problem – it’s not an artificial problem,” Francis Gurry, the World Intellectual Property Organization’s director general, told Reuters in an interview on Wednesday.

“The actors are the ones, in the international framework, who have not been catered for.”

Wait. So this is all about some actors being upset that someone “manipulated” their work? We’re creating an entirely new monopoly right for actors because they’re all upset about someone creating a little mashup or parody? And this is “a real problem”? Are they insane? This isn’t a problem at all. This is catering to a population of people (Hollywood actors) who already have skins too thin, who will now be able to try to stifle all sorts of protected speech, parodies, mashups, commentary and the like, just because they might not like it.

That’s no reason to create new monopoly rights.

The negotiations for this agreement have been taking place in Beijing, leading Gurry to talk about why that’s the perfect place for such negotiations due to China’s cultural history:

The Director General said it is particularly appropriate that the event is taking place in Beijing because of the depth of China’s historical association with the performing arts, as well as the vitality and dynamism of its contemporary theatre, cinema and television. “Theatre, acting and performance in China date back to the Shang Dynasty and enjoy an unbroken historical continuity of development and adaptation, leading to the blossoming contemporary culture that saw China produce over 500 feature films in 2010 and the largest number of television series of any country in the world,” he said.

Er… isn’t it worth pointing out that this “vitality and dynamism” of culture in China was built up almost entirely without intellectual property laws, since the country only introduced copyright in 1991? Why is Gurry pretending that China needs these new monopoly rights when we’ve already seen that culture their flourished without it? Amusingly, a Chinese official at the meetings announced that: “Respecting IP is … a mark of our civilization,” which appears to be an out and out fabrication.

The full proposal (also embedded below) is really broad, and appears to mimic many of the rights established by copyright law. Performers — mainly actors, but also musicians — even if they’re not the copyright holders will get an exclusive right to prevent others from reproducing, distributing or performing the works. In some cases, the rights appear to be even broader than current copyright law, such as an explicit “making available right.” Under copyright law there’s been some dispute if merely “making available” violates the “distribution” right, or if someone actually has to download it to violate that right. However, this treaty explicitly defines a “making available” right — showing, once again, how IP laws only seem to expand outwards. Furthermore, it establishes “moral rights” for performers — an idea that the US has repeatedly rejected for everyone outside of a very small group of artists (such as painters). It seems troubling that we’d suddenly agree to a massive moral rights regime without any public discussion in the US.

On top of that, Article 15 of the agreement appears to include an exceptionally broad anti-circumvention provision — something we’ve already found to be disastrous under the DMCA. Why would we possibly want to expand that such that performers can go after anyone for breaking DRM even if for perfectly legal purposes. This makes no sense.

And while it might sound nice that performers would get their own rights outside of the copyright, that’s not how it’s going to play out. One of the “differences” this time around from the last time it was discussed a dozen years ago, is that this version will allow for the transfer of such rights to producers… meaning that actors in Hollywood movies will be forced to hand these rights over to the studios anyway — meaning more excessive monopoly rights that the MPAA and RIAA will be able to assert to shut down legitimate content.

This thing has disaster written all over it… and it appears to be passing without most people noticing.

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Comments on “WIPO Is Quietly Signing An Agreement To Give Hollywood Stars Their Own Special Version Of Copyright”

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71 Comments
Anonymous Coward says:

Re: "it's a real problem"

Good thing he reminded us it is a ‘real’ problem. I mean, he could have said its just a problem, but he emphasized the ‘real’ part, just to make it even more clear.

“No dudes, its a ‘real’ problem, totally NOT an artificial one. Nope, totally real, and realistic.”

Butters says:

Re: Re: "it's a real problem"

So there aren’t made up problems? Ever watch the news?

What he is saying is that this is not BS or fear mongering tactics. This is real shit that is about to piss into the mouths of the general populace.

Personally i think it will be hilarious when overindulgent celebrities like kanye begin to sue labels and studios for “making them look bad” when their shit doesn’t sell as well as theyd like.

Pissing in their mouths.

John Doe says:

Can actors stop a movie from being shown?

So if actors get rights to determine how their images are used, does that mean they can then shut down the film based on this right? Seems like they would have the studios over a barrel. But like you said, the studios would just make them sign over that right so in the end, the actors would not have any more rights than they do today but the studios would have even more rights.

Leigh Beadon (profile) says:

Re: Re: Can actors stop a movie from being shown?

Since they will be forced to transfer their rights to the producer, the answer is no, they won’t be able to stop a movie.
However the producers can then use it to slam fans remixing the content.

Even worse – they will probably find a way to license it such that they basically both have full enforcement rights, so the performers and studios can use it to slam fans.

Anonymous Coward says:

Re: Can actors stop a movie from being shown?

Yeah, this doesn’t make much sense to me.

first of al, it’s not true that” Copyright, of course, goes to whoever “fixes” the work.” Studios get copyright in motion pictures because everyone who contributes signs a work made for hire agreement, not because they pressed the figurative “record” button on the camera.

Actors, at least in theory, could already claim copyright in their performances, as fixed in a film, or more accurately in the film itself as a joint author, except for the fact that it’s all done under a written work-made-for-hire agreement.

So, something definitely does not seem right.

anon says:

In all honesty

You know the one thing that people seem to have overlooked is talent. In all the discussion of copyright we see many people complaining that there creation is there property and nobody should make money from there creation.

But what happens when someone is way way better than the original artist. Lets say a song by an artist never gets to become popular, but when someone else changes it and gets a singer who can take that song up to number one , does the original artist deserve a cut of the income they make, surely not, they created the lyrics but were unable to use them in a way that people were prepared to pay for it,

Someone else with real talent made it popular and valuable. I am tired of hearing about people using there talent to create something and just expecting people to pay them even if it is not that good. Maybe this law will bring out this point and get people talking about it more.

Leigh Beadon (profile) says:

Re: In all honesty

Indeed. The internet is far more meritocratic than any other setup we’ve ever had. And while there is still the potential for a small talent to get “ripped off” and steamrolled by a bigger artist just based on momentum, if it’s truly egregious then the small artist is in a better position to get fan attention and support out of it than he ever was when the studios/labels controlled everything.

Edward Teach says:

Re: In all honesty

Arrr, mate! Shiver me sides, I’ve wondered the same sort of thing me self! As far as “Intellectual Property” in general, if we posit a moral right to some idea-as-property, then shouldn’t independent inventors get a portion of the property? Perhaps some poor Brazilian favela resident re-creates the idea of “curtain walls” or “Mickey Mouse” or “low pass filter” (in signal processing). That poor favelado may have invented “curtain walls” did so without the resources, the shoulders-of-giants to stand on that whoever nominally invented “curtain walls” did.

So shouldn’t we grant the “intellectual property” to that favelado? Shouldn’t we grant most of the credit to whoever invents an idea more ex nihilo than any other inventor?

TtfnJohn (profile) says:

Re: In all honesty

I’m going to disagree with you on this one. People like Bob Dylan and Leonard Cohen were covered before they broke out of the folkie circuit into the pop and rock mainstream where they now do very very well. In both cases it was likely their voices, originally, that kept them out of the mainstream as you can’t call either great singers.

Musicians knew them and their songs which led to covers such as The Byrds version of “Turn, Turn, Turn” that made many kids aware of Dylan.

There is more than one kind of talent out there, remember and in many cases what record companies are promoting at any given time and radio stations are willing to add to their playlists. The original songwriter does get a cut of the sales and performances of cover versions so I wouldn’t worry about them getting completely left out.

Preemie Maboroshi (user link) says:

thin skins

I looked through the document. But I’m pretty sure the language was too complex for me to understand.

I guess the thing I do like about it, though, is where they say that videos can be considered in violation if they’re modified in such a way that is prejudicial to an artist’s reputation.

But I also do agree with your comment about “thin skins.”

Leigh Beadon (profile) says:

Re: thin skins

I guess the thing I do like about it, though, is where they say that videos can be considered in violation if they’re modified in such a way that is prejudicial to an artist’s reputation.

There are already laws to deal with it if you libel or defame someone by actually telling lies with the intent to cause harm — and with celebrities, the legal bar for that is very high, for a good reason. Celebrities are always concerned that things are detrimental to their reputation. Some celebs seem to accuse every single interview, every single news piece, every single photo to all be misrepresenting them somehow. Giving them more tools to try to control that is a scary concept…

Anonymous Coward says:

As mentioned the companies will just get another right to stick in the face of judges, when suing someone they do not like because of that persons glasses, skincolour and way of speaking. I am pretty sure this will have no direct effect on europe. This will be a huge no-go in the US, however, since it will kick the parody excemption in DMCA to the curb if judges are strict on enforcing it as precedential.

Duke (profile) says:

Re: Neighbouring rights

… Or even a lot of the stuff covered by the 1961 Rome Convention. Performers’ rights, and moral rights are nothing new in Europe; they come from the civil law tradition of copyright being about protecting creators (moral rights are non-transferable usually), rather than the Anglo-American idea of letting publishers make money. You can decide amongst yourself which idea is better.

From what I can tell, these things were included in the original Copyright, Designs and Patents Act 1988, so nothing particularly new here, although there are issues of WIPO once again hard-coding this sort of thing in international treaties – making it that much harder to remove them later.

Anonymous Coward says:

“it’s a real problem”

He musta forgot to finish the sentence. Let me finish it for him.

“it’s a real problem”, I don’t have enough campaign contributions, revolving door favors, or maybe bribes. I want more stuff. I want more property, money, houses, cars, etc… and that I don’t have that is a real problem. So I am going to sign this treaty so that big corporate interests will provide me with more stuff and solve this problem.

Anonymous Coward says:

solution is simple

surely such public personalities deserve not to noticed. we should respect their copyright. we can start by not even seeing their movies since in our memories we could alter their image. we might even form a negative opinion of their acting abilities or personalities. think of all the harm that we would be doing them in our minds. the lawyers will be lining up to take action to make sure that all our thoughts are pure and portray the actors only in the best possible light. yep best not even to see their stinkin’ movies.

Anonymous Coward says:

Having listened to whatsome of the actors say, it is believed there will be a windfall -reads loads and loads od money- of $$$$ falling in to their laps. I am not so sure of this. Does anyone know where to find a study on the economic consequence of such an additional right? It would also seem to benefit the US actors much more than those from the developing countries. In fact, I would bet that developing countries that now have a glut of US films in their theatres may have to pay higher ticket costs. The chain reaction may be devastating for those nascent industries that have yet to flourish. Please do give a link on the roalty -finance implications if anyone knwos where to find it.

illadvisor (profile) says:

maybe i am missing something, but the bigger problem i see is there is no nature limiting point on who counts as a performer or what is a performance. recording a street performance, a celebrity acting like a jerk in public, or really of anybody anytime could be subject to these rights. you would be recording a fixation of an unfixed performance without permission and posting to youtube would be a broadcast. all of the public space turns into a guns n roses concert.

Adrian Lopez says:

Rental Rights

One of the more disturbing articles concerns the rental of audiovisual performances. Specifically:

“(1) Performers shall enjoy the exclusive right of authorizing the commercial rental to the public of the original and copies of their performances fixed in audiovisual fixations as determined in the national law of Contracting Parties, even after distribution of them by, or pursuant to, authorization by the performer.”

If I’m not mistaken, the above paragraph grants performers (or, by assignment, producers) the right to prevent the rental of audiovisuall performances.

Anonymous Coward says:

Re: Rental Rights

“(1) Performers shall enjoy the exclusive right of authorizing the commercial rental to the public of the original and copies of their performances fixed in audiovisual fixations as determined in the national law of Contracting Parties, even after distribution of them by, or pursuant to, authorization by the performer.”

Direct assault on First Sale.

Compare with this passage from House Report No. 94?1476

Effect on Further Disposition of Copy or Phonorecord. Section 109 (a) restates and confirms the principle that, where the copyright owner has transferred ownership of a particular copy or phonorecord of a work, the person to whom the copy or phonorecord is transferred is entitled to dispose of it by sale, rental, or any other means. Under this principle, which has been established by the court decisions .?.?.?.

So the Congress would need to amend 17 USC 109 in order to bring the Copyright Act into conformity with this WIPO agreement.

The Logician says:

Re: Re:

Agreed. According to the Greek myths, the only way the hydra could be killed was with fire, burning all the heads at once. A similar solution may be required here, though I hope we do not have to find out.

Concerning the comments about Lindsay Lohan, I believe she has inflicted enough damage through her own actions that she has no reputation left to tarnish.

As the Yeats poem states, “Things fall apart. The center cannot hold.” This will prove true of the legacy industries of all kinds and their government supporters. Evil is inherently self-destructive, and their end can only result in one outcome, as history has shown numerous times. Those who fear, fade away. And those who adapt, as the Borg do, thrive.

Pia Waugh (profile) says:

Basically a global and disproportionate response to the Streisand Effect

Yeah, this is a terrible idea. It’s coming across as almost desperate. The next big one is 3d printing, for which the copyright protectionists are already getting on the bandwagon.

We’ve already seen massive distribution of communication, publishing, monitoring and even enforcement via the Internet. Property is the last bastion of traditional power.

3D printing could, in not too much time and especially with advances in nanotech, solve massive issues around hunger, poverty, etc, but is already being seen as something that needs to be locked down to protect Hollywood.

Byte (profile) says:

I would make a “Hitler reacts to Beijing Treaty” video but I’m afraid actor Bruno Ganz might believe it will “harm” his “reputation”.

MPAA: so how do we react to all these ‘parody’ exceptions to our Holy Copyright?

WIPO: aha! remember how we helped out your RIAA brothers and use the *copyright to the lyrics* to keep sound recordings with expired copyright still under copyright? Now we’re going to use the *actors* to circumvent the parody-exception. If it’s parody, chances are that they are being made fun of, no? Whammo! Off-line those vids! Screw those idiots thinking they can mess with Big Copyright!

Richard Stallman (user link) says:

Refuse IP

I agree with the writer on the substance, but must point that the
article suffers from using “intellectual property” and “copyright”
interchangeably.

It is nearly impossible to use the term “intellectual property”
without falling into error, and it is misguided to try, since it’s use
plays into the hands of those who would impose treaties like this.
See http://www.gnu.org/philosophy/not-ipr.html, and please join me in firmly refusing to use that term.

Blue orb says:

Response to: Anonymous Coward on Jun 26th, 2012 @ 6:29am

As evidenced by some of my other posts on here? I am a huge advocate of content creators and providers being compensated fairly? I am a huge advocate of artists being able to control how the content they create is distributed? But I agree this law will not fly in the US. We have every right to create parities of people’s works? and we have every right to make fun of actors, actresses, and musicians. I’m being dead serious with all of this? I’m all for strict copyright enforcement in terms of making sure that people are compensated for their intellectual property that they released to the public? But I am also against any law that would somehow prohibit making fun of work creating a parody of something.

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