Nigeria Commits To Full Implementation Of Beijing Treaty On Audiovisual Performances

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Mr. John O. Asein, DG, NCC

Nigeria is making efforts towards the domestication of the provisions of the Beijing Treaty on Audiovisual Performances, which came into force on 28th April 2020, as part of the continuing reform of its copyright system.

Director-General of Nigerian Copyright Commission (NCC), Mr. John O. Asein, disclosed this in his opening remarks at a Webinar with the theme: “Strengthening Nigeria’s Creative Sector through Improved Rights for Artistes and Performers, to mark the coming into force of the treaty.

Expressing concern over the loss of revenue in the audiovisual industry, he assured that the Commission would work with the guilds, associations and collective management organisation in the industry to develop appropriate mechanisms to ensure greater return on creative investment. He noted that such interventions would necessitate looking into various aspects of the industry, including engagement contracts, distribution bottlenecks, online abuses and rights management issues.

Asein reaffirmed the Commission’s commitment to improving the protection available to audiovisual performers, especially “in today’s digital environment where copyright works are easily retransmitted on various online platforms often without recourse to the right owners or the performers”.

Noting that Nigeria’s film industry ranked among the top three in the world, he expressed worry that the ranking has not translated to real economic benefit and enhanced status for the performers “who stand before the lights and cameras transforming scripts to action”.

Mr. Asein expressed sadness that in recent times, well-known film and television actors faced with health challenges have had to appeal to the public for assistance which often came in trickles or a little too late.

Said he: “The current global pandemic has further amplified the vulnerability of creators – authors, musicians, actors and other performers – and it underscores the need to have a fallback system to sustain them beyond their active years and especially in time of economic downturn. These are people who generate or bring life to the copyright works that we enjoy but in most cases they do not have access to any form of pension or gratuity”.

The Director-General who congratulated member states of WIPO despite the fact that the Treaty was coming into force about eight years after its conclusion in June 2012, urged participants at the Webinar to provide “initial thoughts on how the balanced application of the provisions of the Treaty could help Nigeria achieve its laudable objectives”.

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 modernises and updates for the digital era the protection for singers, musicians, dancers and actors in audiovisual performances. It upgrades the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961) and complements the WIPO Performances and Phonograms Treaty (WPPT), which updated protection for performers and producers of phonograms.

The Beijing Treaty encompasses the performances of actors in different media, such as film and television, and also includes musicians when their musical performances are recorded in a DVD or any other audiovisual platform. It grants performers economic rights in fixed and unfixed performances, as well as certain moral rights.

Under the Beijing Treaty, performers are accorded four kinds of economic rights for their performances fixed in audiovisual fixations, namely the right of reproduction; the right of distribution; the right of rental; and the right of making available.

The Treaty obliges each contracting party to adopt, in accordance with its legal system, the measures necessary to ensure the application of the Treaty, including ensuring that enforcement procedures are available for effective action against any act of infringement of rights.

Panelists who examined the essence and prospects of the Beijing Treaty in impacting the fortunes of audiovisual performers were Mr. Oluwatobiloba Moody, Programme Officer, WIPO Nigeria Office; Ms. Carole Croella, Senior Counsellor, Copyright Law Division of WIPO; Mr. Mahmood Ali-Balogun, Chairman, Audio Visual Rights Society of Nigeria (AVRS); Ms. Omoni Oboli, Actress and Producer; Ms. Kate Henshaw, Actress; Mr. Justin Ige, Managing Partner, Creative Legal; Mr. Mike Akpan, Director, National Copyright Institute (NCI) of Nigerian Copyright Commission, with Dr. Chijioke Okorie, Lead Advisor of Penguide Advisory moderating.

In separate remarks, accomplished filmmaker, Omoni Oboli and veteran actress, Kate Henshaw called for intensified enforcement interventions against piracy to ensure sustainable development of the Nigerian film industry.

Stated Oboli: “The Treaty is great but the challenge is piracy. As a producer, I want my rights protected and earn better. Piracy is affecting producers; they are not making their money back.”

She advised performers to build their brands considering that broadcasting organisations sign contracts with producers who paid performers based on their marketability.

Dr. Ali Balogun observed the benefits of the Beijing Treaty in according performers the performance right to be identified with their performances, the right of communication of their performances to the public and moral right to the integrity of their performances. He called for early domestication of the Treaty and for a more effective regulation and enforcement of rights in the digital environment.

He noted that the Audio Visual Rights Society (AVRS) as a company limited by guarantee was approved as a collective management organisation (CMO) by the NCC to which it submits its annual reports. He informed that the AVRS which has responsibility for producers and performers, paid royalties to its members for the first time this year.

Ms. Carole Croella of WIPO said that the Treaty provided an international framework and a balanced approach to guarantee the economic right of audiovisual performers, among others. She noted that Nigerian authorities represented by NCC officials played a significant role in the negotiation of the Treaty. Observing that Nigeria has a comparative advantage in the creative industry, Ms. Croella stated: “We are confident that the NCC has all the expertise for the success of the Treaty but WIPO is willing to support the Commission”.

Speaking on “Future Opportunities for Nigeria’s Creative Industry, Mr. Justin Ige observed that the Treaty distinguished performers’ rights from producers’, adding that the Treaty created a separate stream of income for performers. “I suggest that NCC should make the right to equitable remuneration inalienable and guaranteed under the statute. This does not put any burden on the producer but on the broadcasting and streaming organisations.” he remarked. Mr. Ige added that CMOs should be held accountable for timely and accurate distribution of royalties in a transparent and accountable manner.

In his remarks, Mr. Mike Akpan of NCC indicated that the adoption of the Treaty coincided with the drafting of a new Copyright Bill approved by the Federal Executive Council and pending consideration by the National Assembly, adding that the draft Copyright Bill has made provisions for all the rights granted performers under the Treaty. “In general terms, the draft bill also contains provisions for proactive measures towards dealing with online infringements; safeguards for technological protection measures (TPMs) and rights management information (RMI) systems; and provisions for administrative mechanisms of resolving royalty issues arising from remuneration due to performers in the use of their fixed performances.”

He stated that the Commission would broker discussions among key stakeholders to engender effective implementation of the Treaty in a manner that would ensure that performers could fully appropriate the benefits of their rights.

Mr. Akpan pointed out that the model contracts issued by the Commission would serve as guidance to practitioners in the various copyright industries as a head start for repositioning the sector for a new regime of rights created by both the Beijing Treaty and anticipated in the Copyright Bill.

He indicated that a new copyright regime would entrench a more professional management framework for CMOs that would ensure that all participants, especially audiovisual performers, have benefit from the system.

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