Protecting rights of performers on digital networks

In early days producers and performers of creative works could monetise the showing or viewing of performances effectively by selling tickets at the venues. In the last several decades, with the advent of the internet and digital technologies, the field of copyright and related rights has expanded enormously. At the same time, the possibility of making digital manipulation of performances or unauthorised copies of live performances has also been easier which raises new questions concerning copyright.

The copyright protection for performers, producers of phonograms and for broadcasting organisations was recognised for the first time in 1961 under The Rome Convention.  Later on, coming into being in 1995, the Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement), contained provisions on the protection of "related rights" – rights of performers, producers of sound recordings, broadcasting organisations. According to TRIPS Agreement, the performers and producers enjoy their rights until fifty years and broadcasting organisations until twenty years.

In order to shape new standards for copyright protection in cyberspace, the World Intellectual Property Organization (WIPO) adopted two treaties in 1996, namely – the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) – known together as the "Internet Treaties". In addition to creating new online rights, these treaties have clarified the content of existing rights under the Rome Convention and TRIPS Agreement.

Performers and producers have the right to enjoy and exercise the rights provided for in the WPPT without any formality for a term not less than 50 years. Under the WPPT, performers enjoy two types of rights, namely – economic rights and moral rights. In respect of performances fixed in phonograms (not in audiovisual fixations, such as motion pictures) economic rights include the right of reproduction, distribution, rental, and making available.

While with regard to unfixed (live) performances, the performers' economic rights include the right of – broadcasting, communication to the public (except where the performance is a broadcast performance) and fixation. The moral rights include the right to claim to be identified as the performer and the right to object to any distortion or modification that would be prejudicial to the performer's reputation. As far as producers of phonograms are concerned, the WPPT grants them economic rights in their phonograms that include the right of – reproduction, distribution, rental, and making available.

In addition to that, a single equitable remuneration must be paid by the user to the performers or to the producers of the phonograms, or to both if a phonogram published for commercial purposes gives rise to secondary uses – broadcasting or communication to the public in any form.

Most importantly, the treaties ensure that the owners of those rights will continue to be adequately and effectively protected when their works are disseminated through new technologies and communications systems such as the Internet.

Intending to ensure that right holders can effectively use technology to protect their rights and to license their works online, the treaties also require countries to provide two types of technological adjuncts to the rights. The first one is the "anti-circumvention" provision that tackles the problem of hacking and requires countries to provide adequate legal protection and effective remedies against the circumvention of technological measures (such as encryption) used by right holders to protect their rights. The second type of technological adjuncts is to safeguard the reliability and integrity of the online marketplace by requiring countries while prohibiting the deliberate alteration or deletion of electronic "rights management information" – information that accompanies any protected material, and which identifies the work, its creators, performers, or owners, and the terms and conditions for its use.

According to the Copyright Act, 2000 of Bangladesh, the performer shall have a special right until fifty years in relation to appearance or engagement in any performance, and the broadcast reproduction right shall subsist until twenty-five years in respect of the broadcasts.

However, it is not clear whether the protection of the performers' and broadcasters' rights extend to the infringements or manipulation made using digital technologies. As Bangladesh has not been the signatory State of these Internet Treaties yet, it appears that the performers, producers of phonograms and for broadcasting organisations of Bangladesh shall not get protection provided under these treaties against the manipulation or infringement of their performances disseminated in digital spaces. It is pertinent to mention here that more than hundred countries including Afghanistan, India, Malaysia, and China have signed these treaties.

In order to facilitate the protection of innovative and creative works, the contribution of intellectual property (IP) in development of the country cannot be ignored. To address the challenges posed by today's digital technologies, in particular the dissemination of protected material over digital networks, the government should undertake a comprehensive review of IP legal regime and needs to take every measure including signing of the relevant WIPO administered international treaties.

IP rights encourage fair competition and foster social, cultural and economic development of a country. The broad development vision and goals articulated in national and sectoral development plans, policies and strategies of the country can effectively be met using IP rights. The right-holders should be aware of their IP rights and the government is required to promote increased awareness and knowledge about IP among the people of the country.

The writer is corporate legal practitioner.