Rights in Performances

27 May 2010  Revised 5 April 2017
Part II of the Copyright Designs and Patents Act 1988 (“CDPA”) confers certain exclusive rights on two groups. It grants to performers rights known as “performers’ rights”. It also grants to those such as recording and film companies who have exclusive rights to record the performances of such artistes rights known as “recording rights”. In addition, Part II creates offences of dealing with illicit recordings and certain other acts.
Amendment of Part II
The Act has been amended substantially since it was passed. A useful but unofficial consolidation of the CDPA and related legislation has been prepared by the IPO.   These amendments give effect to art. 14 (1) and (2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS“), the Rome Convention (International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations) and the WIPO Performances and Phonograms Treaty as well as a number of EU directives,
Performers’ Rights
Performers now have property and non-property rights. Property rights include reproduction right, distribution right, rental right, lending right and a new making available right. A performer is entitled to equitable remuneration from the owner of the copyright in a sound recording of his performance whenever it is played or communicated to the public. Performers’ non-property rights are the rights to withhold consent for recording, broadcasting or transmission of a performance.
Recording Rights
Recording rights include the right to withhold consent for recording a performance by a performer with whom there is an exclusive contract, using recordings made without consent, importing, possessing or dealing in such recordings.
SubsistenceLike copyright, performers ‘and recording rights arise automatically. They come into being upon what is known as a “qualifying performance”. Such a performance may be a performance given by a “qualifying individual”, that is to say a UK or EU citizen or citizen of some other designated country, or one that takes place in the UK, EU or other designated country.
Enforcement
Actions for infringement of performers’ property rights are brought in the Chancery Division, the Intellectual Property Enterprise Court or any County Court hearing centre where there is also a Chancery District Registry.   The remedies are substantially the same as for infringement of copyright. Actions for infringement of recording rights or for performers’ non-property rights are actionable as breaches of statutory duty. It is also an offence under s.198 of the CDPA to make, import, possess, offer or expose for sale or distribute a recording in the knowledge that it is illicit.
Moral Rights
The Performances (Moral Rights, etc.) Regulations 2006 came into force on 1 Feb 2006. Reg 6 of these regulations introduces new sections. 205C  to 205N  into Part II of the Copyright Designs and Patents Act 1988 providing a right to be identified as a performer on condition of assertion and a right to object to derogatory treatment, both of which are enforceable by civil action
Risk Factors
Rights in performances has become increasingly complex and confusing since 1989. Performers’ rights are now greatly extended by 1996 and 2003 regulations. Anyone dealing with sound and visual recordings (which can include digital recordings transmitted electronically) has to take account of performers’ property rights as well as copyrights. In anticipation of enforcement of such rights by collecting societies, a new Schedule 2A has been inserted into the CDPA providing for the regulation of licensing schemes and reference of disputes to the Copyright Tribunal.

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