Thursday, February 18, 2016

Copyright Law - Proposed Beijing Treaty Would Reverse Garcia v. Google (Innocence of Muslims)

On February 10, 2016 President Obama sent the Beijing Treaty on Audiovisual Performances to the Senate for ratification.   The Senate referred the treaty to the Senate Committee on Foreign Relations which is chaired by Senator Bob Corker of Tennessee Twitter handle: @senbobcorker .

Commenters have pointed out that the Beijing Treaty, which was executed on creates a new form of copyright for performers and would constitute a radical change in our copyright laws.  The Electronic Frontier Foundation opposes the Beijing Treaty here as does Techdirt here mainly on the grounds of restricting free expression/fair use and creating unnecessary copyright monopolies that will benefit Hollywood content owners, rather than performers.  Essentially, if you film anyone dancing, the person dancing would have the right to prevent you from publishing the film.

A Twitter search shows that actors unions are solidly behind the Beijing Treaty.

The Beijing Treaty would essentially reverse the Garcia v. Google case discussed here.  In that case, an injunction was issued against the film Innocence of Muslims.  The Ninth Circuit reversed, holding that the actress did not have a copyright claim in her performance.

Here is President Obama's message to the Senate:

The White House
Office of the Press Secretary
For Immediate Release

Message to the Senate -- The Beijing Treaty on Audiovisual Performances

With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Beijing Treaty on Audiovisual Performances, done at Beijing on June 24, 2012 (Beijing Treaty).  I also transmit, for the information of the Senate, a report of the Secretary of State with respect to the Beijing Treaty that includes a summary of its provisions.
This copyright treaty, concluded under the auspices of the World Intellectual Property Organization (WIPO), advances the national interest of the United States in promoting the protection and enjoyment of creative works.  The Beijing Treaty provides a modern international framework for the rights of performers in motion pictures, television programs, and other audiovisual works, similar to that already in place for producers of such works, for authors, and for performers and producers of sound recordings, pursuant to other WIPO copyright treaties the United States has joined.
The United States played a leadership role in the negotiation of the treaty, and its provisions are broadly consistent with the approach and structure of existing U.S. law.  Narrow changes in U.S. law will be needed for the United States to implement certain provisions of the treaty.  Proposed legislation is being submitted to both houses of the Congress in conjunction with this transmittal.
I recommend that the Senate give early and favorable consideration to the Beijing Treaty, and give its advice and consent to its ratification, subject to a declaration pursuant to Article 11 of the Beijing Treaty as described in the accompanying Department of State report.


It appears that the President's description of the Beijing Treaty is not consistent with its intent or language.  The Beijing Treaty appears to be a radical change from existing copyright law.  Congress ought to take a hard look at these issues and hold hearings before moving forward.
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

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