One thing that is important to understand about IP maximalists and their strategy for continually expanding monopoly powers against the public’s fundamental rights is just what a comprehensive, multi-pronged strategy it is. It’s not like they just try to pass a law like SOPA and are done. They’re constantly working a comprehensive global strategy. Part of that means trying to get similar laws passed around the globe. But, at the same time, they’re often working on a whole slew of international agreements as well. And while we’re now all aware of the big treaties — like ACTA and TPP — there are all sorts of other things going on all the time.

For example, it appears that some folks have been pushing — somewhat below the radar — another treaty agreement to create a new form of intellectual monopoly: performers’ rights (pdf and embedded below). There’s a meeting planned for June in China to try to push this through.

As you hopefully know, in the US copyright is affixed to new and creative works as soon as they’re put into a fixed form. But the copyright goes to whoever does that “fixing” or, on large productions, generally whoever is considered the “producer.” The specific actors in, say, a TV show, don’t get any specific rights in their performance. This makes sense. They’re paid to do a job, which they do. However, some countries grant performers a copyright in their performances, and this new treaty is an attempt to push such rights for “audiovisual performers”. As far as I can tell, this gives the performers in a work special new rights to stop how others use it. So, imagine a situation where someone wants to create a mashup video — and they even get permission from the copyright holder to use it. Under this treaty, they’d then also need to get permission from everyone who appears in the video too, or they’ll be violating that person’s “audiovisual performance rights”.

There are a variety of serious problems within the specifics, but just in general, why is this needed? It seems to serve no legitimate economic interest. All it does is create yet another category of monopoly rights that will certainly be abused to limit people’s abilities to express themselves. It also almost guarantees that more new audiovisual works will be locked up and lost to culture. Already we have a serious problem with orphan works where the copyright holder can’t be found. Imagine what happens when you need to find not just the copyright holder, but every single performer in the work and then secure a license from each of them. Yeah, basically every video will quickly become too expensive to ever use for anything, and thus it will be locked up.

Beyond that, there are some significant concerns in the details. Article 5 establishes “moral rights” in association with the economic rights. In the US, we’ve more or less (quite thankfully) ignored the requirement of the Berne Convention rules that say we need to recognize moral rights (to get around this, the US gives “moral rights” to a very, very tiny subset of artists). Moral rights, of course, are an idea built off of copyright, but rather than being about the economic incentives, they’re about letting people stop the use of something because they don’t like how it’s used. We see people try to misuse copyright law all the time today because they don’t like how a work is being used. The proper response is to let people know that’s not allowed — not to create new moral rights instead.

The agreement specifically states (in a footnote) that it shall apply to digital content online, including the requirement that performers have “the exclusive right of authorizing the direct or indirect reproduction of
their performances.” In other words, forget making videos that include performances with anyone who hasn’t “licensed” you their performance right. How can the folks behind this not realize what kind of ridiculous problems this will cause? Take a video at a party of some people dancing — and unless you’ve “licensed” the work from every dancer, you may be in trouble.

And, like pretty much every IP-related treaty these days, this one includes a stupid, technologically-illogical clause demanding anti-circumvention laws — with no additional requirement that the only circumventions that apply are those that actually violate the other rights in the agreement. Instead, it’s the same overly broad anti-circumvention clause that takes away your fundamental rights.

The whole thing is quite ridiculous, and just shows the nature of maximalist thinking. All they look to do is to create more and more monopolies that limit free speech and communication. It’s really all about making the lawyers happier by creating more and more regulations for the kinds of things people do every day. Hopefully countries are smart enough to reject such a totally ridiculous concept, but from what we’ve heard, US officials are all for this garbage.

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