In a June 26th, 2012 post to the techdirt blog, Michael Masnick reported what could be a very troubling piece of news: A new treaty, the Beijing Treaty on Audiovisual Performances (BTAP), that was negotiated at the recently concluded WIPO meeting in China, would allow actors in a video the right to control how their images and performances are used. These provisions of BTAP will go into effect worldwide when ratified by 30 member countries.
While many people (performers and their agents?) might support these new worldwide rights - as a way of making money and protecting the "integrity" of an initial performance - almost everyone else (e.g., anyone who blogs or uses images and sound found online to create new work, fans of mashups and parodies, etc.) should be opposed to this new treaty.
That's because the WIPO treaty known as BTAP would create an entirely new monopoly right empowering actors to sue the creator of a mashup or parody anywhere in the world - even if the creator of the mashup or parody was operating under Fair Use or (in some cases) with the explicit permission of the owner of the underlying work.
For over 200 years, the US system of copyright has operated without giving performers the kind of "moral rights" that will become the international standard once BTAP is ratified. It seems the US is about to become part of a massive new international moral rights regime - without any substantive public discussion in the US.
The provisions of BTAP that would grant actors exclusive rights to prevent others from reproducing, distributing or performing their works are much broader and disruptive than anything in the current US copyright law. For example, if BTAP is ratified, anyone who uses a clip from a film in an online review (e.g., taking an excerpt from a copy-protected DVD) - even if the copyright holder of the video or audio recording approves the use - might be sued by any one of the performers in that clip. Once BTAP becomes law; reporters, critics, online filmmakers and bloggers can't rely on Fair Use or permission from the producer alone. In the new scheme, filmmakers may need to get additional permissions (from each actor) before they can safely use any content from an existing video.
Here is a video created by (well intentioned) actors (people I respect - and even a couple of friends) - arguing in favor of this new law. Notice that none of these artists addresses the threats to creativity and free expression that BATP embodies. For example, if BTAP is ratified, could one of the performers below sue me for unpermissioned use of their image claiming that "communication to the public of their performances fixed in audiovisual fixations" in the context of this blogpost is a "distortion, mutilation or other modification of his performances that would be prejudicial to his reputation?"
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