A Moral Performance

09 May 2006

Claire Bennett

April 2006

On 1 February 2006 performances gained an added moral dimension, at least in the copyright sense when the Performances (Moral Rights, etc) Regulations 2006, SI 2006/18 came into force. The Regulations, broadly, simply extend the protection that already exists for the moral rights of authors and directors to performers by way of amendments to the Copyright, Designs and Patents Act 1988. The Regulations also enable the UK to ratify the WIPO Performances and Phonograms Treaty 1996, Cm 3728, which was approved by the European Community back in March 2000 (Council Decision 2000/278/EC) and which will ensure reciprocal protection overseas.

What Moral Rights do Performers Have?

The Regulations grant a performer the right:

i. to be identified; and,

ii. to object to derogatory treatment of his or her performance.

These rights apply to the whole or a substantial part of any type of live performance and to sound-recordings of such performances, whether these are made directly from the performance or indirectly (for example where a sound recording is subsequently made from a film soundtrack). In this the Regulations go further than the minimum rights required by the WPPT, which were limited to “aural” performances.

These rights will endure for as long as performing right subsists in the performance. This will usually be 50 years from the end of the calendar year the performance takes place or the sound recording is released. However, a performer may waive his rights in writing, or consent to a particular act. It is also important to note that the rights only apply to performances that take place after 1 February 2006, as it was thought that the difficulty of identifying performers retrospectively placed too high a burden on the industry.

On Whom Does The Obligation To Identity The Performer Fall?

In order to be caught by this obligation:

i. the performer must have asserted his right to be identified in a written instrument that has been signed by either the performer or on his behalf (for example by his agent or manager) and the person must have notice of this assertion; or,

ii. an assignment of the performer’s property rights must include a statement that the performer asserts his right to be identified and the person must be the assignee or a person claiming through the assignee. In this case notice is irrelevant.

A performer may assert his right generally or in relation to a specific act or description of acts.

A person bound by the obligation will infringe the performer’s right to be identified when he:

a. produces or otherwise puts on a qualifying performance in public;
b. broadcasts a qualifying performance live;
c. communicates a sound recording of a qualifying performance to the public; or,
d. issues copies of such a recording to the public,

without identifying the performer.

A qualifying performance is a performance that is made by a qualifying person or takes place in a qualifying country and will include performances by British citizens and individuals domiciled in the UK.

Thus in practice a company is unlikely to be caught unaware by the Regulations, provided it is aware of the new right and has proper procedures in place for recording such assertions. Where a company deals with a large number of performances to which this right may potentially attach, it may be advisable, as is often already routinely done, for a company to identify all performers whether or not they have asserted their rights.

How Should The Performer Be Identified?

The person may agree with the performer the manner in which he should be identified. This injects a note of practicality into the process and in many cases the parties should be able to come to a suitable arrangement.

Failing such an arrangement, the person must identify the performer in a manner that is likely to bring his identity to the notice of anybody who sees or hears the performance, broadcast or communication, or who acquires a copy of a recording.

It is important to note that if the performer has specified a particular form of identification in his assertion, such as a pseudonym, the person must use that form of identification. Otherwise the person may use any reasonable form of identification. Where the performance is given by a group (that is two or more people who have a particular name) it is usually sufficient to identify the group. The exception to this is where a person is issuing copies of the recording to the public. In this case a person must identify each group member unless it is not reasonably practical to do so.

Are There Any Exceptions?

There are various exceptions which the person may rely on. The most useful are:

a. where it is not reasonably practicable to identify the performer, (or group if this is permitted);
b. where the performance is given for the purpose for advertising goods or services;
c. where the performance is given, or fair dealing with the performance, for the purpose of reporting current events; and
d. incidental, non-deliberate, inclusion.

The first two exceptions do not have any existing equivalent in the CDPA 1988 and have been included in order to limit any negative impact of the Regulations on industry.

What Is Derogatory Treatment?

This right only applies where a performance has been modified in a way that is prejudicial to the performer’s reputation.

Who May Infringe this Right?

The right is infringed if the modified performance is broadcast live or, in the case of a sound recording, played in public or communicated to the public. A person who distributes or commercially deals with such sound recordings is also potentially liable if he knows or has reason to believe that recording is of such a modified performance.

The Regulatory Impact Assessment for the Regulations predicts that the cost of complying with this aspect of the Regulations will not be high as it considers that it is not the general practice to modify performances in a derogatory fashion. However, particularly in the music and advertising industries, it is not uncommon for other performer’s performances to be sampled and reused (albeit usually with permission). Jive Bunny and the Mastermixers, JVL’s remix of the Elvis’s “A Little Less Conversation” (used in the film Ocean’s Eleven) and Gene Kelly’s revamped break-dancing performance of “Singin’ in the Rain” used to advertise the Volkswagen Golf GTI spring to mind. Thus the impact will depend on how the Courts interpret “a modification that is prejudicial to a performer’s reputation”.

Are There Any Exceptions?

The right does not apply to:

a) performances given for the purpose of reporting current events;
b) modifications made to performances consistent with normal editorial or production practice;
c) or anything done to avoid committing an offence or to comply with a statutory duty (with equivalent provisions for the BBC, which operates under a royal charter and thus is not subject to the same requirements as the other broadcasters).

However, care must be taken if relying on the latter exception if the performer is identified by the act in question or has previously been identified in copies of a sound recording issued to the public. If so, there must be clear and reasonably prominent disclaimer that modifications have been made to the performance without the performer’s consent. If the performer is identified at the time of the act the disclaimer should appear with the identification.

Remedies

A breach of the above rights is actionable as a breach of statutory duty by the performer or his heirs (the right is not assignable) and thus the usual remedies will be available against a person infringing the right. However, in relation the right to object to derogatory treatment the Regulations specifically provide that, if the Court considers it to be an adequate remedy in all the circumstances, an injunction prohibiting the infringing act may be granted unless a disclaimer is made in approved terms. This suggests that this may be the Court’s usual starting point.

Future Developments

There is at present no movement at a European level to harmonise moral rights. Nor is there a move to extend moral rights to audiovisual works. Although this inconsistency was noted during the implementation review of the Regulations, the need for primary legislation to bring in such rights means it is unlikely that they will be brought in anytime soon.

Published in World Intellectual Property Report, April 2006