21 October 2005

Moral Rights for Performers: Draft Regs on Patent Office Website

Rights in performances are pretty new in themselves in the UK. Although the Dramatic and Musical Performers Protection Act 1958 and previous legislation had made it an offence to record a performance without the performer's consent it was not until Ex p. Island Records Ltd. [1978] Ch 122 that performers were able to apply for injunctions to restrain such recording. Elevation of the right to consent or withhold consent to a performance to the status of an intellectual property right akin to copyright only came about on 1 Aug 1989 when Part II of the Copyright, Designs and Patents Act 1988 came into force.

At first, those rights were quite limited as can be seen by comparing the original version Part II of the Act with what we have now. Most of the changes came about through with The Copyright and Related Rights Regulations 1996 and The Copyright and Related Rights Regulations 2003 which implemented various EC directives. Now Part II is to change yet again with the the provision of new moral rights for performers.

These new moral rights are necessary to comply with the WIPO Performers and Phonograms Treaty. Art 5 (1) of that Treaty confers two moral rights:

"Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation."
The draft Performances (Moral Rights, etc.) Regulations 2005 would import those rights into English law. They will do that my amending Part II of the Copyright Designs and Patents Act 1988 and inserting several new sections into that statute.

The right to be identified as performer will arise whenever a person produces or puts on a qualifying performance that is given in public, broadcasts live a qualifying performance, communicates to the public a sound recording of a qualifying performance, or issues to the public copies of such a recording. The right to be identified includes the right to be identified in a programme, announcement, record sleeve and so forth. Such right has to be asserted and there are exceptions to it.

It is much less clear what "derogatory treatment" is. The proposed new s.205F (1) describes it as
"distortion, mutilation or other modification that is prejudicial to the reputation of the performer."
As with moral rights in copyright, infringement of these rights is a breach of statutory duty. The usual remedies for IP infringement, namely injunctions, accounts and inquiries, will similarly be available.

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