Will the U.S. Senate Allow Big Media to Hold Blind People for Ransom?

This tactic of bundling feel-good legislation ("free puppies for orphans act") with bad legislation ("extend copyright for a billion more years rider") is so lame. I wonder if there could be a constitutional amendment that required separation of concerns with new legislation. As in, if a vote is primarily about, say, healthcare, but someone throws in a rider to build a new bridge to nowhere in their state, the entire thing could be challenged in court.

There is clearly some deeper political dialogue going on here. Would someone please explain it for those of us who have been living under rocks? I apologize in advance for not paying attention in advance.

I'm surprised to find that I disagree with the EFF wrt moral rights.

In Canada we have moral rights, so for example if as a contractor I wrote code for an application I can, in theory, use my moral rights to stop the use of my code when the app is used for a reason I disagree with. In reality this never happens as companies typically ask you to waive your moral rights as a part of your contract.

I had a really hard time wrapping my head around the point the author was trying to make, and also a hard time making sense of any of the supporting arguments. Not sure where to begin.

I guess I'll start with the title. What is making a problem for blind people?

Wow, the EFF are being rather deceptive here:

>"The treaty would also allow “performers” (which, remember, usually means Hollywood producers) to restrict the availability of their performances" //

Moral rights aren't transferable, if they were then they'd merely be bought by the studios along with the other rights and there would be no cases ever to answer.

>"Whilst it is fair that an artist receives attribution for their work, to allow them to control how the performance is used after its fixation goes too far." //

The idea is to provide a very limited control. The case mentioned in the article wouldn't impinge moral rights: Moral rights come in when you defame yourself by means of trickery or some other such conceit - actors act and it's quite clear that the actress in the OP (Garcia) is acting and that she was hired accordingly. If she didn't want to be in a specific type of film she should be sure to get a better contract - contract law would then allow her to sue.

Primarily moral rights means attribution. It also covers something like modifying a work to present a _real_ person as having said something they did not. I'm surprised at the EFF's apparent position here. It must be Art.5(1)(ii) that the judge mentioned is supposed to have felt bears on the case of the Actress in the OP:

>"(ii) to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations." [1] //

It doesn't sound like the Actress's performance would have prejudiced her reputation as she was hired to perform as a character - her claim appears to be based on a misunderstanding of the premise of acting and in particular a complete misconstrual of the process of producing a film. The Treaty doesn't make provision for anything like "an actor can prevent distribution if those of feeble mind could confuse the actor with the character they portray". I have enormous sympathy with the actress's fear of reprisal but this treaty really appears irrelevant to the situation she is in. That said I could see a plaintiff wishing to raise issue under the treaty in court - perhaps that's why the judge mentioned it?

In [2] EFF say:

>"If every person captured doing something creative on film could claim a copyright in it, service providers could find themselves flooded with takedown notices under the DMCA, resulting in the silencing of all kinds of lawful speech."

Seems highly fanciful given Art.12 allows for rights of Art.7-11 to be transferred. Art.6 rights concern fixation of performances, so once that's done a performer's rights would be exhausted there. Basically leaving only Art.5 - attribution and "misrepresentation" of the performance.

That actors, artists, etc., might choose to exercise their moral rights - perhaps using the DMCA if that is enabled in the ratification [I don't know if it would be] - rather than the DMCA being used almost exclusively as a weapon of the massive multimedia conglomerates – to ensure no presentation without profit – seems like a very strange objection for the EFF to take. Oh noes the DMCA might be used by an actor to ensure their acting credit isn't removed from a show they were in; whatever will we do now?!?

As for the idea Google will get swamped with actors or performers issuing DMCA notices, that process surely will not change and their involvement is de minimis - [which I understand to be] take down on a properly issued complaint, reinstate on a properly made counter-statement and then wait pending a court decision? Almost entirely automated I'd expect except for acting on the court decision?

---

[1] The Beijing Treaty text - http://www.wipo.int/edocs/mdocs/copyright/en/avp_dc/avp_dc_2..., start with Art.5 and then Art.12 to get a good overview in about one page of text. Articles 1-4 and 19+ are pretty much boiler plate.

[2] https://www.eff.org/deeplinks/2014/12/every-orc-author-rehea...

This is complete nonsense. I am not impressed with the authors' argument in the least.

The Beijing Treaty acknowledges this reality through a provision that allows the full transfer of rights to the producer of an audiovisual work; a provision that was prompted by the U.S. delegation during the last round of negotiation of the treaty, in response to Hollywood demands [PDF]. Thus, these new monopoly rights will serve only to enlarge the bulging copyright portfolios of the motion picture industry, leaving performers no better off than before.

In other words, the Beijing treaty contains a provision - at the request of the motion picture industry - that all the rights of a performance be transferable to the producers, rather than having every individual actor or other performer being able to exercise a veto over release.

This will have exactly zero effect on the copyright portfolios of the motion picture industry (in which I work) because this is the way things already work. Job #1 for the junior producer/production manager is making sure that anyone who performs any sort of creative service whatsoever for a film signs a release which transfers all rights in that performance to the production at the time the person completes work on the set or hands off the asset (eg an original music recording for the soundtrack).

If you don't have releases for everyone who participates in the film, then no distributor is going to hand over a check. Because while the studios do still put out a certain number of pictures, the contractual situation for most movies is that they're made by an outside company on a very tightly regulated budget, and the production company usually has very little cash flow for a long time after the picture's release unless it's a surprise hit or a blockbuster with lots of merchandising tie-ins (which is only about 50-100 of the 5-6000 commercial film releases in the US every year). Distributors, by contrast, tend to have quite a bit of cash flow, so if a distributor were to fork over money for the rights to a film only to have the release held hostage by one or more of the people in the credits, it wouldn't be a very sustainable model. That's why one of the (many many) things you hand over to a distributor to get paid is a big bundle of signed release forms for everyone who appears on camera etc.

If it wasn't for this provision being added to the Beijing treaty, then any participant would be able to hold the release of a film, which would be a completely unsustainable way of doing business. Any would-be producer who overlooks the business of getting signed releases from all the participants doesn't get very far; failure to do so makes the film unsaleable until the remaining producers, if any, go through the tedious business of getting in contact with everyone who worked on the film and begging for a retroactive release.

The Beijing Treaty would also require U.S. law to be changed to recognize a new set of “moral rights” of performers, which include the right to attribution for a performance, and the right to preserve its “integrity”. Moral rights are strongly recognized in civil law countries such as France, but the United States has always resisted recognizing them—and for good reason. Whilst it is fair that an artist receives attribution for their work, to allow them to control how the performance is used after its fixation goes too far. It impinges upon the separate First Amendment rights of the producer of an audiovisual work, limiting their creative freedom to meld the contributions of performers into a unified whole copyright work.

Oh, the same producers whose 'bulging copyright portfolios' the authors were just grumbling about, and are now attempting to defend? GMAFB. 'Moral rights' are a fine concept - attribution is often the only benefit performers get from participating in a film, especially low-budget ones where owning a piece of the revenue is worth a bit fat $0 - I myself own a chunk of 4 or 5 feature films, and the reason that I don't know the exact number off the top of my head is because I long ago resigned myself to the reality that none of them will ever show a dime of profit (for reasons which have nothing to do with Hollywood accounting, and everything to do with amateur lack of marketing).

As for preserving integrity, this is again something that is already accommodated for in professional level contracts. It's not to limit the right of the producer/editor/director to cut an actor's favorite line or use one take rather than another, or even to cut an actor's performance out of the film entirely if the quality of the performance or the overall dynamic of the story means it runs better without. That sort of provision is designed to ensure actors don't find their performance incorporated into what turns out to be a porn movie, or so that actors ostensibly recruited to participate in some family-friendly Christian movie don't find themselves edited into Extreme Gore Horror Part VII.

Moral rights in the US for still pictures, sculpture etc. are articulated through the Visual Artists Rights Act. http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act. Motion pictures are dominated by contractual arrangements, the same way as they are everywhere else, due to the sheer logistical complexity of production/ Contrary to what the EFF is claiming, the acknowledgement of moral rights is not an awful attack on US film producers; has it not occurred to the authors that countries with a strong moral rights tradition also usually have healthy film industries, and that moreover the film industries of those nations are not typically mired in copyright litigation?

I'm quite annoyed with the EFF and these two authors here. Yeah, it's good to point out the horse-trading involved in tying ratification or implementation of one treaty to the terms of another. But the complaints about the Beijing Treaty are ill-informed, self-contradictory, and exhibit zero interest or awareness of how the motion picture business works, nor to have thought through the actual language of the treaty (http://www.wipo.int/edocs/mdocs/copyright/en/avp_dc/avp_dc_2...) such as the distinction between moral and economic rights and the absolute transferability and assignability of the latter.

I don't work for a large film studio or IP owner. I work on films with small budgets, and tracking and managing all the paperwork involved in transfer of rights is one of the biggest and most expensive administrative overheads. I'm hoping to go into production later this year on my own film, which is going to require at least 30 sets of releases/rights assignment contracts. The Beijing Treaty could be ratified tomorrow and it's going to have exactly zero impact on my creative endeavor because that level of exhaustive compliance is already the industry standard for any commercial offering. Insofar as it's damn hard to recoup the costs of making a film, and as even 'no-budget' films typically cost quite a bit of money to make, I'm actually quite supportive of some regulatory consistency that would reduce the administrative overhead of international distribution and make it easier to negotiate with distributors in individual markets rather than through regional sales agents, aka middlemen.

Sad to see EFF arguing against the woman who was tricked into appearing in _Innocence of Muslims_. Sure, the law she is using to arguing her case might not be a good one, but it's still cruel to throw her under the bus.