Performers gain moral rights

Copyright Designs and Patents Act 1988 amended

The Performances (Moral Rights, etc) Regulations 2006 come into force tomorrow, giving performers the right to be identified and the right to object to the derogatory treatment of their performances for the first time.

The new rights are closely modelled on the existing moral rights of authors and directors. A new section 205C of the Copyright, Designs and Patents Act 1988 provides, essentially, that when a performance is given in public or broadcast live, or a sound recording (but not a video recording) of the performance is communicated or issued to the public, then the performer has a right to be identified. The exclusion of video recordings from the scope of the new right has been criticised by performers’ organisations.

There is considerable flexibility about how the right can be satisfied. For example, it is specifically stated that the right could be satisfied for live performances by identification of the performer in a programme and for copies of a recording of a performance issued to the public by identification in or on the copies. For a live performance, it is the person who organises or promotes the performance who will have to give effect to the right to be identified.

There is no general right for individuals to be identified individually where the performance is by a group (two or more performers known by a particular collective name). An exception to this is in the case of sound recordings, unless it is not reasonably practicable to to identify each member of the group.

However, new section 205D requires that the right to be identified must be asserted, in a similar manner to the rights of authors and directors (s.78 of the CDPA).

The right to object to derogatory treatment is established (s.205F). This right is infringed if the performance is broadcast with modifications prejudicial to the performer’s reputation or if a sound recording of the performance is played, communicated or issued to the public with such modifications. This right applies to all performers individually and there is no separate provision for groups.

Exceptions to the right to object to derogatory treatment are provided for in new section 205G, and include performances for the purpose of reporting current events and modifications consistent with normal editorial or production practice.

The provision of moral rights for performers is required under the 1996 WIPO Performances and Phonograms Treaty.