The Intellectual Property Office of the Philippines (IPOPHL) conducted a public consultation in November on implementing the Beijing Treaty on Audiovisual Performances (BTAP), which protects the rights of artists and entertainers. In fact, the Philippines acceded to the treaty in 2021, more than four years ago, but did not pass the Implementing Rules and Regulations (IRR).
This placed artists and performers without guidelines on the mechanisms that will help them to fully benefit from their treaty rights. But light may be on the horizon for entertainers now that the IPOPHL is finally considering implementing the treaty.
BTAP rights
Ernest Luigi A Manzanares
Associate
Federis & Associates Law Offices
BTAP protection applies to performers who are either nationals or habitual residents of the Philippines, as well as to those from other countries that are parties to the treaty. Performances include a wide range of expressions – such as acting, singing, dancing and playing musical instruments – and any other rendition of an existing literary or artistic work. Improvisations or spontaneous performances are also covered.
However, performances by “extras” and those generated by machines or non-human entities are excluded. An extra is defined as a person appearing in an audiovisual work or fixation – such as a film – whose role is neither title nor supporting.
On the other hand, performers are granted economic rights over both their live (unfixed) and recorded performances in an audiovisual work or fixation. For live shows, performers have the exclusive right to authorise the broadcasting or public communication, and the fixation of those performances.
For recorded or fixed performances, performers hold the exclusive right to authorise the reproduction, distribution, rental and making their performances available to the public through tangible media or digital means, including streaming.
Remuneration
The proposed rules state that the performer’s right to receive equitable remuneration following the initial public communication or broadcast may not be waived and is independent of any transfer of their exclusive rights.
This means that, even if a performer has signed a contract giving the production studio the right to “exploit the work in all media forever”, they are entitled to fair payment each time their performance is subsequently used or communicated to the public or broadcast, such as re-aired on TV, streamed online or made available on demand.
Draft rule IV outlines the mechanics of the remuneration. The obligation to pay additional remuneration rests with users of the audiovisual work or fixation. Users are entities that broadcast or otherwise communicate the content to the public for a fee, or with the intent to generate income.
This means that ordinary end users who merely access the audiovisual content are not personally responsible for paying the performer. A performer’s compensation cannot be made contingent on payment from individual consumers.
The additional remuneration would be calculated either as at least 5% of the original compensation for the initial communication or broadcast of the performance, or based on rates mutually agreed on by the parties.
Notably, performers are not precluded from negotiating more favourable terms. The user cannot withhold payment from a performer claiming remuneration unless the said claimant is patently not entitled.
Under the current proposed regulations, a certified true copy of the local Collective Management Organisation (CMO) accreditation certificate with IPOPHL and the CMO’s membership list, as well as the reciprocal agreement with the foreign CMO, would serve as sufficient evidence of entitlement.
If not all members of the cast are represented by an accredited CMO, the CMO may not collect for the entire cast. The CMO shall, however, inform the user and the performer of the existence of a right to remuneration. Payment by the user shall be made in accordance with the terms of the contract or, in the absence of such contract, within a reasonable period from the date of demand by the duly authorised CMO.
Meanwhile, performers whose rights are infringed may seek appropriate remedies under section 216.1 of the IP Code.
Takeaway
There is no doubt that the country is rich in world-class talent. However, Filipino performers have been excluded from the full benefits of their work due to a lack of clear regulations. The draft provision directing that the IRR be liberally construed to promote the rights of performers already speaks volumes on the need for more protective mechanisms and laws.
Once promulgated, the Philippine BTAP regulations would be a leap toward recognising performers as rights holders. Its timely issuance will fulfill the Philippines’ international commitments and help lay the foundation for a fairer and more inclusive creative industry.
Ernest Luigi A Manzanares is an associate at Federis & Associates Law Offices
FEDERIS & ASSOCIATES LAW OFFICES
Suites 2002 to 2006
88 Corporate Centre
Valero St, Salcedo Village
Makati City 1227, Philippines
www.federislaw.com.ph
Contact details:
T: +632 8 889 6197 98
E: emanzanares@federislaw.com.ph
