Important change to rights in performances

Topic: Important change to rights in performances

Who: UK Government

Where: UK

When: February 2006

What happened:

Earlier this year the UK Government introduced further changes to the UK laws on copyright and related rights, known as the Performances (Moral Rights, etc.) Regulations 2006 ("the Regulations").  Essentially these changes introduce moral rights for performers for the very first time in the UK.

The Regulations entered into force on 1 February 2006, although they have been little publicised.

Performers moral rights

UK copyright law already grants so-called "moral rights" to authors and film directors.  The most important of these are the right to be named as the author or director of a work ("right of paternity"), and the right to object to derogatory treatment of a work ("right of integrity").  Following recent agreement by the World Intellectual Property Organisation (WIPO), the UK has now introduced similar moral rights for performers.  The Regulations confer the following new rights on performers:

- the right to be identified as the performer of a qualifying performance
- the right to object to derogatory treatment of a qualifying performance

Right of paternity

The right to be identified as the performer generally applies to live performances, live broadcasts and sound recordings.  It does not apply to audio-visual recordings of performances, such as films and videos, but would apply to soundtracks released as sound recordings.

In relation to performances given by a group, the problem of having to identify each performer separately has been avoided by a provision that the right can be satisfied by identifying the group alone.

There are a number of exceptions to the right of paternity, including in respect of performances given for the purposes of advertising any goods or services.  It is important to note, however, that this does not seem to cover the situation where a qualifying performance is originally given for other purposes (such as general release), but is then subsequently used in advertising.

Right of integrity

The performer of a qualifying performance has a right which is infringed if the performance is subjected to any distortion, mutilation or other modification that is prejudicial to the reputation of the performer.  This right applies to live broadcasts of qualifying performances, and to sound recordings of qualifying performances which are played in public or communicated to the public.  Although there is no equivalent exception in relation to advertising as noted above in respect of the right of paternity, the Regulations make clear that this right of integrity is not infringed by modifications made to a performance which are consistent with normal editorial or production practice.

As with existing moral rights, both new rights may be waived by written agreement.

Why this matters:

These new provisions are likely to be most relevant to advertisers and their agencies who intend to use music recorded on or after 1 February in their advertising campaigns.  Where such music has been specifically commissioned by the advertiser, then it is likely that only the new right of integrity will apply, but where such music has not been commissioned by the advertiser, then it is likely that both new moral rights will apply.

Therefore those advertisers and agencies acquiring rights to music recorded after 1 February should review their standard documents to ensure that they contain appropriate waivers of the new rights.