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The Academy Award winner introduced himself thusly last week to the diplomatic community at the World Intellectual Property Organization in Geneva. The occasion was a presentation on the Treaty for the Protection of Audiovisual Performances, which only weeks earlier had received the endorsement of WIPO's Copyright Committee. The path is now clear for the treaty to be the subject of a diplomatic conference, the last major step before an international treaty is signed and ratified, and likely to occur sometime next year. The agreement would guarantee remuneration and other international rights to performers and succeed a similar agreement, the Performances and Phonograms Treaty, which went into effect more than a decade ago.
"Actors nowadays are the only ones who are not remunerated…as directors, as screenwriters, as musicians are—which is kind of weird, because as we all know, if I play a character, it's going to be totally different than the character that somebody else is going to play," Bardem said. "And it can be the same page, the same dialogue, the same director, but we bring something else. So we are authors, in a sense."
Silent Decade
The treaty has been hailed by many, Bardem included, as an actors' rights document—the first of its kind to guarantee a slew of international rights to onscreen performers. It has also been a long time coming.
Since the Berne Convention was signed in 1886, authorship rights have been a fundamental element of international copyright law. But those rights have never been officially extended to onscreen performers. After the Phonograms treaty was adopted in 1996, work began on a similar treaty that would extend remuneration and other rights to audiovisual performers. A 20-point document was drafted, approved, and sent to a diplomatic conference in 2000, where the effort fell apart in dramatic fashion. At issue was one point related to "work for hire," the system under which performers cede rights to their work to producers, which is standard operating procedure in the United States. Europe, however, has a long history of providing so-called moral rights to performers. U.S. producers demanded that language be included in the treaty that would affirm the validity of the work-for-hire doctrine. European negotiators balked, fearing the encroachment of work for hire into their territories. No compromise could be reached, and the treaty sat on the shelf for more than a decade.
Fast-forward to this year. About six months ago, the Screen Actors Guild and the American Federation of Television and Radio Artists reached agreement with producers on compromise language that would revive the treaty by ensuring protection for work for hire without raising European hackles. The treaty now has a good chance of gaining approval from all of WIPO's 185 member countries, with support from the International Federation of Actors (a union coalition of which SAG and AFTRA are both members), the Motion Picture Association (an international federation of producers' groups, including the Motion Picture Association of America), and the governments of India, Mexico, the United States, Brazil, the European Union, and Nigeria.
"We really see this as an advance for U.S. performers," said SAG deputy national executive director and general counsel Duncan Crabtree-Ireland, "but more importantly an advance for performers around the world in terms of providing equal treatment to sound performers, who have had these rights for more than a decade, whereas their audiovisual brethren have not."
Moral Victory
An international treaty guaranteeing rights for actors holds promise, but what does the WIPO agreement actually do? For actors in countries where, say, a performer's right to be paid residuals isn't guaranteed in law (as it is in much of Europe) or in collective bargaining agreements (as in the United States), it could do quite a bit. Those signatory countries are essentially agreeing to confer rights of authorship where none existed before. But here at home, the benefits may be less tangible. The treaty could, for example, be useful to U.S. actors seeking to stop clips of their work from being misappropriated abroad in certain cases. But in reality, its significance may be mostly symbolic.
"I think that U.S. performers are very well protected and compensated under our collective bargaining system, but it does provide a moral victory," said Fritz Attaway, MPAA executive vice president and special policy adviser. "I think psychologically it was important to U.S. actors simply because it gives them equal standing in the international community with Phonogram."
The treaty also represents another step in the industry's continuing battle against content piracy. Both Attaway and Crabtree-Ireland believe that the treaty reinforces the notion that stealing the copyright-protected work of performers is wrong. Tom Carpenter, general counsel and director of legislative affairs for AFTRA, agrees.
"The Internet has obviously brought the problem front and center," Carpenter said of piracy. "Now that it's easier than ever for our members' work to be stolen, it just highlights the need to do something more to protect it. And the majority of actors worldwide don't get paid when their performances air on the Internet. So having an international instrument that sets a minimum level of protections for performers is a good thing."
Bardem expressed a similar sentiment in Geneva. "People don't have money, and movie tickets are sometimes too high," the actor said. "What I don't agree with is the mentality of the people, that to do piracy is fine."
