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.