Performance Rights

Performance Rights

Performers’ rights were not protected under the Berne Convention. They are protected under the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961). This was expanded by the Geneva Treaty on Performance Rights and Phonogram Producers (1996).

Performance rights are subject to separate similar provisions to those for copyright for works under the Copyright act. Performance rights cover performers, singers, musicians, dancers and another person who actually deliver musical or artistic works or expressions of works of folklore in a live performance.

A “performance” means a performance of any actors, singers, musicians, dancers or other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary, dramatic, musical or artistic works or expressions of works of folklore, which is a live performance given by one or more individuals and includes a performance of a variety act or any similar presentation. A performance of a literary work includes reading or recitation. A performance of a dramatic work includes a choreographic work or a work of mime.

Nature of Rights

The performance rights may be dealt with in much the same way by way of assigning and licensing performances, reproduction rights, distribution rights, the right to make copies available and lending and retail rights.

The right to remuneration for the performance right is organised through a collecting society. The performer’s rights last for 50 years. Performer’s rights or property rights. The provisions in respect of dealing with performance right is similar to those for copyright.

Similar moral rights apply as in the case of copyright. They last 50 years. They include the paternity rights, integrity right and protection from false attribution equivalent to those for mainstream copyrights. Similar exceptions apply.

Recording & Reproduction

Performers have the right to record the whole or a substantial part of a performance. The issue of bootleg performances may constitute breach of the recording right.

A performer has the exclusive right to authorise or prohibit—

• the making of a recording of the whole or any substantial part of a qualifying performance directly from the live performance,
• the broadcasting live, or including live in a cable programme service, of the whole or any substantial part of a qualifying performance, or
• the making of a recording of the whole or any substantial part of a qualifying performance directly from a broadcast of, or cable programme including, the live performance.

The reproduction right is the exclusive right to authorise or prohibit the making of a recording of the whole or substantial part of the performance. It is infringed by a person who makes such a recording without consent. There is an exception for recording for private and domestic use.

A performer has the exclusive right to authorise or prohibit the making available to the public of copies of a recording of the whole or any substantial part of a qualifying performance and it is immaterial whether the copy is made directly or indirectly.

Where a copy of a sound recording is played in public or included in a broadcast or cable programme service, the right conferred shall be deemed to be satisfied by the payment of equitable remuneration. This means that they do not have an absolute right to prohibit but are entitled to equitable remuneration generally under a licensing scheme.

Performers have right to control recording and broadcasting. Breach of this right constitutes infringement.

Other Means or Formats

Performers may permit the reproduction of the performance in another format. They may make it available to the public. Where the performances are played in public or carried in a broadcast, the right is satisfied by equitable remuneration.

Making available may be by any number of means, such as

• making available to the public of copies of a recording, by wire or wireless means, in such a way that members of the public may access the recording from a place and at a time individually chosen by them, including the making available of copies of recordings through the Internet
• showing or playing a copy of the recording in public,
  broadcasting a copy of the recording,
• including a copy of the recording in a cable programme service,
• issuing copies of the recording to the public,
• renting copies of the recording, or
• lending copies of the recording

The provision of facilities to enable the making available of copies of a performance is not an infringement. However, where the person concerned is notified by the rights holder and fails to take steps to remove the infringing material that person is liable for infringement.

The rights owner may apply to the court for an injunction against intermediaries.

Rental & Lending

A performer has the exclusive right to authorise or prohibit the rental or lending of copies of a recording of the whole or any substantial part of his or her qualifying performance. These are known as the rental and lending rights. Breach is an infringement.

The lending right in relation to a recording does not apply at any time in a period during which a scheme for the remuneration of authors is in effect,, in relation to works of a class in which that recording is included, whether the performer, or (in the case of a recording of a performance by a number of performers) any of the performers, is a participant in that scheme or not.

A performer has a right to equitable remuneration from the owner of the copyright in a sound recording where the sound recording of the whole or any substantial part of a qualifying performance which has been made available to the public for commercial purposes is played in public, or included in a broadcast or cable programme service.

Bootleg/ Illicit Copies

It is an infringement of the performers right where a person shows or plays in public the whole or any part of a performance broadcast that or included in a cable programme without the performer’s consent. This is an illicit recording.

A person infringes the rights of a performer where he or she, without the consent of the performer—

• sells, rents or lends, or offers or exposes for sale, rental or loan,
• imports into the State, otherwise than for his or her private and domestic use,
• in the course of a business, trade or profession, has in his or her possession, custody or control, or
• makes available to the public, or
• otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the interests of the performer,

a recording of a qualifying performance which is, and which he or she knows or has reason to believe is, an illicit recording.

Where, in action brought for infringement of the rights of a performer, a defendant shows that the illicit recording was innocently acquired by him or her or his or her predecessor in title, the only remedy available against the defendant in respect of the infringement shall be an award of damages not exceeding a reasonable payment in respect of the act complained of.

Secondary infringement:

Secondary infringement applies in the usual way in respect of importers, possessors in the course of business, distributors, retailers and those who permit and facilitate an infringing performance. Possession of infringing copies constitutes secondary infringement where the individual knows or has reason to know that the copy is an unlawful copy. Temporary possession of a recording device or protection-defeating devices may constitute infringement.

A person infringes the rights of a performer conferred where he or she does without the consent of the performer—

• makes sells,
• rents or lends, or offers or exposes for sale, rental or loan,
• imports into the State, or
  has in his or her possession, custody or control,

an article specifically designed or adapted for making recordings of a performance, knowing or having reason to believe that it has been or is to be used to make illicit recordings.

There are equivalent acts of secondary infringement for persons facilitating illicit recording or providing the means for making it available.

Performance Infringement

Where the rights of a performer conferred b are infringed by a public performance of a recording of the performance, or by playing or showing the recording in public, by means of apparatus for—

• playing sound recordings,
• showing films, or
• receiving sounds or images or any combination of sounds or images, or the representations thereof, conveyed by any means,

the following persons shall also be liable for the infringement—

• a person who supplied the apparatus, or any substantial part thereof if, when he or she supplied the apparatus or part thereof ) he or she knew or had reason to believe that the apparatus was likely to be used to infringe the rights of a performer conferred, or in the case of apparatus the normal use of which involves a public performance, playing or showing, he or she had reason to believe that it would be used to infringe the rights of a performer;
•  an owner or occupier of premises who gave permission for the apparatus to be brought onto the premises if, when the owner or occupier gave permission, he or she knew or had reason to believe that the apparatus was likely to be used to infringe the rights of a performer conferred by this Part; and
  a person who supplied a copy of a sound recording or film used to infringe the rights of a performer conferred if, when the person supplied it, he or she knew or had reason to believe that what was supplied, or a copy made directly or indirectly therefrom, was likely to be used to infringe the rights of a performer conferred.

There are equivalent rights of persons hold a contract with a performer with an exclusive right to make recordings of the performer for the purpose of commercial exploitation. Those rights are infringed where a person makes a recording of the whole or a substantial part of the performance without consent. In the same way, showing playing a substantial part of the performance and public broadcasting or including it in a cable programme service without consent is infringement.

Parallel to copyright

Broadly the same enforcement mechanisms that apply in respect of mainstream copyright apply in respect of performance rights. There are defences and limitations to performers copyright similar to those in respect of mainstream copyright.

They include fair dealing for the purpose of

• criticism or review of that work
• reporting current events
• education researcher private study

Fair Dealing Incidental & Exemptions

Fair dealing’ means the making use of a performance or recording which has been lawfully made available to the public for a purpose and to an extent which will not unreasonably prejudice the interests of the rights owner where such use is accompanied by a sufficient acknowledgement

Incidental use in another recording or work is not an infringement. A performance or recording shall not be regarded as included in an incidental manner in another recording or work where it is included in a manner where the interests of the rights owner are unreasonably prejudiced

There is a wide range of detailed exemptions in relation to education. Conditions apply in many cases. These exceptions include

• Copying of performance for the purpose of instruction
• the playing of sound recording at an educational establishment
• recording a broadcast behalf of an educational establishment
• illustration for education teaching or scientific research
• distance learning by educational establishments
• use by educational establishments recordings to the Internet.

There is an equivalent modern exception for text and data mining for non-commercial purposes. It must be done n order that the person may carry out a computational analysis of anything in the work for the sole purpose of research for a non-commercial purpose and accompanied by a sufficient acknowledgement.

Where the publication of the results of a computational analysis or of a copy of a performance or recording includes the reproduction of extracts from the performance or recording, such inclusion must be incidental and are not more than reasonably necessary to explain, or to assist in explaining, the results of the analysis.

There are equivalent exemptions for librarians and archivists to those in respect of mainstream copyright. Conditions and limits apply to each.

A recording of a performance of an anonymous work which has not been lawfully made available to the public may be made for the purpose of including it in an archive maintained by a designated body without infringing any right conferred where at the time the recording is made—

• the making of the recording does not infringe any copyright, and the making of the recording is not prohibited by any performer.

Enforcement

Most of the same remedies that apply in respect of mainstream copyright apply in respect of performance rights. They include

• order for delivery of infringing copies by court
• application to the District Court for seizure
• rights of right holder to seize illicit copies

There are equivalent criminal offences in respect of performance rights to those applicable to mainstream copyright. The court may order copies to be delivered up forfeited upon conviction. There are equivalent search and seizure powers.

There are provisions for licensing of performer’s rights. The provisions for authorisation and operation of licensing bodies are broadly similar to those for other copyright. The controller approves the schemes and is involved in the resolution of disputes and other ongoing matters. The controller registers licensing bodies.

Where there are rights for equitable remuneration rather than absolute property rights the controller may resolve disputes regarding the terms of remuneration.