100 years (nearly): ILO’s efforts to protect performers’ rights Coping with technological change – in a nutshell / Sally Christine Cornwell

100 years (nearly): ILO’s efforts to protect performers’ rights Coping with technological change – in a nutshell / Sally Christine Cornwell

A little known chapter in ILO’s history has been its continuing effort to protect the rights of performing artists (those associated with music, acting, audio-visual works etc). Until the technology for capturing or “fixing” performances in films or on records (phonograms) was perfected, performances were live and remuneration was mostly regulated between the performers and those who hired them.

With the development and increased use and distribution of recordings and films in the 1920s, performers became increasingly concerned about being paid for the repeated copying and use of their works. Moreover they felt entitled to protect the integrity of their works – a moral right.  Whereas authors had international laws protecting copyright dating from the late 1880s, no similar protection existed for performers. From the 1920s the ILO recognized that performers were workers who should be remunerated not only for their original performance but for any subsequent commercial use made of it, since such use “employs” the performer’s labour.

After 30 years of consultations among governments and different rights’ holders, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention) was adopted in 1961. The ILO, UNESCO and WIPO have shared the administration of the convention. Ratification has been slow, but over 90 Member States have now ratified it.

The Rome Convention marked a major step forward by recognizing that performers had some rights of consent to the use of their works and could claim remuneration in some instances. At the same time, the Convention provided options to avoid or restrict the remuneration rights. The trade unions representing performers were never entirely satisfied with the terms of the Convention, but obtaining greater international protection was seen as an improbable goal.

Since 1961 technological developments and even more sophisticated means of communication (cable, videos, video discs, satellites, digital technologies) have simply multiplied the means by which performers’ works can be copied (even changed) reproduced, re-used, and re-diffused.

Over 20 years ago WIPO updated and renewed its international copyright and phonograms treaties, but efforts to provide similar international protection for performers in audiovisual works have not been successful.

In 2012, however, a WIPO Conference adopted the Beijing Treaty on Audiovisual Performances. This treaty essentially covers the intellectual property rights of performers in audiovisual performances (moral rights and rights and rights to authorize reproduction, distribution, rental and diffusion to the public) of performances that have been “fixed” in audiovisual fixations. There are, however, options to restrict rights: replacing authorization with remuneration and/or transferring rights against royalties or remuneration. The Beijing Treaty, with about 17 ratifications, will come into force when 30 States have ratified.

With these developments, what is the role of the ILO?  It has not been closely involved in the Beijing Treaty.  The most recent Rome Convention Intergovernmental Committee was held in 2009. Any future meeting is dependent on “new” developments, presumably the entry into force of the Beijing Treaty.  What is the future of the Rome Convention once the Beijing Treaty comes into force?  Some workers’ organisations have expressed doubts about the effectiveness of the new treaty and would like clarifications of the possible implications.

After 100 years of defending performers’ rights, will the ILO continue to do so?

Clearly the ILO’s continued concern for the employment and working conditions of performers, most of whom are in atypical forms of employment, will remain. The ILO’s Global Forum on Employment Relationships in Media and Cultural Sectors in 2014 provides a roadmap. The ILO meeting was followed by a trade union handbook in 2016, “Reaching Out to Atypical Workers in the Arts, Media and Entertainment Sectors”, prepared by European members of the International Arts and Entertainment Alliance. These are all critical aspects of performers’ working lives.

The question remains, however, as to whether the ILO has a role to play, and which one, in defending performers’ rights when their works are “fixed” and used and re-used in many forms.