(C) Rights of Performers in a Digital Environment

82 While the WPPT does protect the rights of performers, its provisions relate to the aural aspects of performances, and not to audiovisual performances. This is because diverse systems have evolved to protect audiovisual performers in different parts of the world, some based on legal rights and others on contract, and a compromise between the systems is difficult to achieve. While such performances are protected by many national laws, and also by the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, no multilateral treaty covers the rights of performers in authorized audiovisual fixations of their performances. The possible extension of international protection for performers to cover audiovisual performances might be perceived as a general question, not specific to e-commerce. It is, however, highly relevant because audiovisual performances will be used in an increasing measure on the Internet, through film and music videos for example, as available bandwidth increases.¹²² Moreover, digital technologies permit the unauthorized manipulation and distortion of performers’ images and voices (e.g., morphing). A satisfactory solution of this issue is therefore an important component of an overall clarification of the rights involved in

e-commerce.

83 In December 2000, WIPO organized a Diplomatic Conference on the Protection of Rights in Audiovisual Performances.¹²³ While the scope of this Conference included a number of basic questions regarding that protection, it was also an important attempt to establish appropriate rights in connection with the convergence of the digital and audiovisual worlds. The Conference resulted in a general understanding between the participating government delegations concerning most substantive provisions of a WIPO audiovisual performances treaty, except for the international recognition of transfer of rights under national law.

84 The deadlock was related to the consequences that the international recognition of statutory transfers of exclusive rights could entail. Those countries in favor of such recognition demand to have certainty and clarity on the producer’s ability to exercise the exclusive rights of authorization for the effective exploitation of films in a global environment. Opposition to that recognition is founded mainly in the concern that this could imply the application of domestic rules on the legal regulation of transfer or entitlement or rights in respect of the exploitation of films all over the world.

85 The Diplomatic Conference recommended to the WIPO Assembly of Member States, at its meeting in September 2001, to reconvene the Conference with the aim of finally adopting the new treaty. However, during the Assembly, Member States considered that it was necessary to continue consultations to resolve outstanding issues over the above-mentioned provision. They therefore decided to carry the issue over to the 2002 session of the WIPO Assemblies.¹²⁴ In the absence of such contacts, at the 2002 meetings the General Assembly approved the Director General’s proposal that the International Bureau should conduct informal consultations with interested parties to explore the possibilities of convening an “informal ad hoc meeting” in the first half of 2003 “for the purpose of having informal exchanges on the remaining differences and possible ways of resolving them.” Meanwhile, WIPO is maintaining a close dialogue with governments and non-government organizations to bridge the existing gaps and to find possible ways forward in the negotiations.¹²⁵