09 May 2005
Key Points:
New performers' rights will supplement existing protections - and introduce significant ownership rights.
Among the most significant changes to Australian copyright law proposed by the US Free Trade Agreement Implementation Act 2004 will be extensive additional rights (both economic and moral) for performers in live performances and sound recordings of their performances. These will supplement the existing protections of performers against unauthorised sound recordings of their performances and unauthorised uses of recordings, which are contained in Part XIA of the Copyright Act 1968.
The most significant of these changes include a right of a performer/performers recorded in a sound recording to own 50 percent of the copyright in the sound recording, and a right for all performers recorded to be identified by name in all publications of the sound recording.
These changes largely result from the requirements of the Free Trade Agreement to ratify or accede to the World Intellectual Property Organization Performances and Phonograms Treaty 1996.
Definition of performance and performer
A common concept of a "performance" and "performer" underpins all these changes. A "performance" is one that is live (whether or not in the presence of an audience) and includes recitations of drama and other literary works, as well as musical performances, and this will now be extended to include "a performance of an expression of folklore".
The performer in a performance includes every person who contributed to the sounds of the performance and where the performance includes a performance of a musical work, the conductor. As such, a silent dancer would not have the benefit of the new provisions which relate to sound recordings.
Performers' rights in sound recordings of live performances
The new provisions in section 22 and Part IV of the Copyright Act grant performers rights as co-owners of the copyright in sound recordings of their performances, by extending the definition of the "maker" of a sound recording in section 22 to include the performer(s) who performed in the recording as well as the owner of the medium on which the recording was first stored. Subject to any agreement between them, half of the copyright belongs to the performers, and half to the owners of the medium, each half being owned by the relevant owners as tenants in common in equal shares.
The "performer" is any person who contributes to the sounds of a recorded performance (by being present in person, or "live" at the performance which is recorded). One has to wonder about the sounds that dancers make as they rustle and leap, but presumably they are not to be included, whatever the frisson of the sounds they contribute to the effect of the recording. If a performer contributes his or sounds in the course of employment, then the employer is taken to be the "performer" for the purposes of these provisions. This is subject to Crown ownership or any agreement to transfer or assign the copyright.
The FTA Act also extends the operation of this new ownership principle to past sound recordings in which copyright subsists on the day of commencement. As a result, former owners and new co-owners (ie. performers) will now each own half of the copyright in an existing recording as tenants in common in equal shares.
Former owners collectively hold 50 percent of copyright in the same proportions and terms as the whole copyright was owned by them immediately before commencement. New owners collectively hold 50 percent in equal shares. Notwithstanding such ownership, former owners can continue to do any act with respect to the copyright as if each new owner had granted them a licence or permission to do so.
In addition, the remedies for copyright infringement available to new owners of existing recordings are limited, in particular preventing the new owners from obtaining pecuniary remedies of damages and account of profits. There are a number of safeguard provisions for balancing the rights of performers and the owners of the medium upon which the recording was first stored.
Performers' moral rights
New moral rights, referred to as the "rights of performership", for performers in both live and recorded performances have also been created. In this case it is limited to only the sounds of a performance (that is, images on film do not count).
These rights are very similar in all respects to the current moral rights of authors, including infringements and remedies, but note that the right to bring an action is expressly made subject to any co-performership agreement to which the performer is a party. The moral rights apply in respect to the whole or a substantial part of the performance.
Right of attribution of performership in respect of the performance
This is the right to be identified as a performer in the performance if "attributable acts" are done in respect of the performance. "Attributable acts" are communication of the performance (live or recorded) to the public, staging the live performance in public or making a copy record of the recorded performance. The form of identification must be reasonable, in particular in its clarity, prominence and audibility, and must conform to any reasonable request by the performer.
Right not to have performership of a work falsely attributed
This is the right to take action against a person for doing or authorising acts of false attribution. Such acts include:
Right of integrity of performership
This is the right to object to derogatory treatment of a live or recorded performance which prejudicially affects the performer's reputation, through the doing of anything that results in a material distortion of, the material alteration to the performance. This extends to a recorded performance either of a live performance affected by derogatory treatment or itself subjected to derogatory treatment, being copied, communicated to the public or caused to be heard in public.
For the purposes of these new provisions in Part IX, "performer" has a slightly narrower meaning than in relation to the ownership of sound recordings. A performer is any person who contributes to the sounds of a performance which occurs within Australia, but if the performance occurs outside Australia, does not include anyone who is not a "qualified person". A "qualified person" is an Australian citizen or resident, although it is to be expected that regulations under Part VIII will extend the effect of these provisions to citizens and nationals of other countries.
Moral rights in respect of live and recorded performances are not retrospective and only subsist if they occur after commencement. The rights of attribution continue until copyright ceases, but the right of integrity only endures until the death of the performer.
Moral rights belong to each performer separately from the others. As such, in a performance involving multiple performers, the consent of one performer to any act or omission does not affect the moral rights of any other performer.
Performers' protection
Performers' protections in Part XIA of the Copyright Act have also been increased. Here, a "performer" may be a performer in a cinematograph film (the provisions are not limited to the sounds of performances), but if the performance occurs outside Australia, does not include anyone who is not a "qualified person" ("qualified person" is separately defined for the purposes of Part XIA, and can be extended by regulations).
Authorisation now must be given by the performer not just for broadcasts but for all communications of live performances to the public, either directly from the live performance or from an unauthorised recording of it. Secondly, the new provisions will restrict exemptions on copying and communicating sound recordings of live performances without the performer's authority, although performers cannot receive compensation twice when the same actions infringe both copyright ownership and protections. The changes apply to past live performances with respect only to acts done after commencement.
In addition, there are exemptions in respect of certain fair dealing and educational activities, to bring them more into line with provisions of the Act relating to such uses of copyright in works and other subject matter.
Comment
These ambitious changes strongly benefit performers, recognising the value of the contribution their performance makes to a sound recording. This legislation does not reward them directly, but may give them some bargaining power.
It is difficult in some cases, however, to understand how these provisions can work in practice. In a recording of Handel's Messiah (or, even worse, at a live concert where audience members are invited to join in the chorus), how is every member of the choir and orchestra to be treated as a co-owner, and how is every such performer to have a right of attribution and integrity? Other economic implications may arise, such as increased compliance costs being passed onto the community and a possible disincentive to use Australian performances due to variability in performers' rights throughout the world (despite the World Intellectual Property Organization Performances and Phonograms Treaty 1996).
The FTA Act does attempt to provide safeguards and balance between performers and other owners but time will tell whether these are practical and make sense. Also, the lack of technology neutrality, with audiovisual performance not covered, may need to be revisited in the future, as the growth in use of this media (such as DVDs) increases.
