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Article Story:
RENTAL AND LENDING - AND A WAILING AND GNASHING OF TEETH -
PART II
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Date:
15/5/1997
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PERFORMERS' RIGHTS
The story so far....
The Regulations came into effect on 1 December 1996 and amend
and extend the Copyright, Designs and Patents Act 1988
('the CDPA'). The Regulations implement,
belatedly, the provisions of three European Council directives, one
of which dealt with performers' rights, including rental and
lending rights.
This article summarises the changes in UK law relating to
performers', as opposed to authors', rights. It should be treated
as a guide to the topic and not as detailed advice.
Performers' Property Rights
The Regulations restate and extend performers' rights to
authorise or prohibit the making of copies of a recording of
the whole or a substantial part of a performance ('reproduction
right') and the issuing of copies of a recording of a
performance ('distribution right') and introduce a right
to authorise or prohibit the rental or lending of copies of such a
recording of a performance ('rental right' and
'lending right'). Rental and lending are dealt with on the
same basis as copyright works. These rights are designated as
performers' property rights.
'Rental' means making a copy of a recording or the original
available for use, on terms that it will or may be returned, for
direct or indirect economic or commercial advantage. 'Lending'
means making a copy of a recording or the original available for
use, on terms that it will or may be returned, otherwise than
for direct or indirect economic or commercial advantage through an
establishment which is accessible to the public. (Where such
an establishment makes a charge which does not go above what is
necessary to cover the operating costs of the establishment, the
charge is not deemed to be an economic or commercial
advantage).
'Rental' and 'lending' do not include making
available for the purpose of public performance or exhibition,
playing or showing in public, broadcasting or inclusion in a cable
programme service or making available for on-the-spot reference
use. 'Lending' does not include making available between
establishments which are accessible to the public or the lending by
an educational establishment.
The Secretary of State has the power, where there is no
certified licence scheme under the CDPA, to provide that the
lending of copies of sound recordings or films are treated as
licensed by the performer subject only to the payment of such
reasonable royalty or other payment as may be agreed or determined,
in default of agreement, by the Copyright Tribunal.
A performer's property rights are transmissible by assignment,
by testamentary disposition or by operation of law as personal or
moveable property. Assignments can be partial but must be in
writing and signed by the assignor. A licence granted by the owner
of a performer's property rights is binding on all successors other
than a purchaser in good faith for valuable consideration, who does
not have notice (actual or constructive) of the licence. Rights can
be granted in a future recording of a performance. Performers'
property rights are treated in many ways in the same way as
copyright, particularly as regards the enforcement of performers'
property rights by action at law (eg who may take action,
provisions as to damages, undertakings to take licence of right,
rights and remedies of exclusive licensee).
Where under a bequest a person is entitled to any material thing
containing an original recording of a performance which was not
published before the death of the testator, the bequest shall,
unless a contrary intention appears in the will, be construed as
including the performer's property rights relating to the recording
to which the testator was entitled immediately prior to his
death.
The regulations make provision for licensing schemes and
licensing bodies in respect of performers' property rights similar
to those which exist in respect of copyright.
Right to equitable remuneration
The Regulations introduce new rights on the part of performers
to 'equitable remuneration'.
Where a commercially published sound recording of the whole or
any substantial part of a qualifying performance is played in
public or is included in a broadcast or cable programme service,
the performer is entitled to equitable remuneration from the owner
of the copyright in the sound recording.
Where an agreement concerning film production is concluded
between a performer and a film producer, the performer is presumed,
unless the agreement provides to the contrary, to have transferred
to the film producer any rental right relating to the film arising
from the inclusion of a recording of his performance in the film.
The agreement does not have to be signed (or, by implication, in
writing?) The performer does, however, retain a right to equitable
remuneration for the rental of the film, payable by the person for
the time being entitled to the rental right.
The right to equitable remuneration may not be assigned by the
performer except to a collecting society for the purpose of
enabling the collecting society to enforce the right on his behalf.
(The right is transmissible by testamentary disposition or by
operation of law as personal or moveable property, and it may be
further assigned by any person to whom the right is assigned.)
The amount payable by way of equitable remuneration is as agreed
between payer and payee, or, in default of agreement, as determined
by the Copyright Tribunal. Remuneration will not be considered
inequitable merely because it was paid by way of a single payment
or at the time of the transfer of the rental right.
In default of agreement as to the amount of equitable
remuneration, the payer or the payee may apply to the Copyright
Tribunal to determine the amount payable. An agreement is of no
effect in so far as it purports to exclude or restrict the right to
equitable remuneration or to prevent a person questioning the
amount of equitable remuneration or to restrict the powers of the
Copyright Tribunal.
It remains to be seen whether the introduction of the right to
equitable remuneration in respect of the rental of certain
copyright works will have a significant effect on the film and
television industries. Although there seems to be a recovery in the
video rental market, only a limited category of films (in copyright
terms) is rented to the public. Few television programmes generate
rental revenue. Feature films are the mainstay of the rental
market, and the majority of these are produced in the United
States.
The record industry in the United Kingdom anticipated the
introduction of the right to equitable remuneration in respect the
broadcast of sound recordings by increasing the share of the income
received by it from broadcasters which it pays to performers. Two
new performers' organisations have come into being (PAMRA
representing non-featured artists and AURA representing featured
artists) which will have to resolve how this share is to be divided
between them.
From the point of view of producers, it is unfortunate that the
Regulations permit performers to re-open the issue of the amount of
equitable remuneration to which they might be entitled. Although an
agreement may provide that the performer has been paid on a buy-out
basis, the performer can insist on revisiting the matter by
applying to the Copyright Tribunal. The performer may not actually
succeed in getting any more money out of the producer, but the
producer could be involved in considerable time and expense in
fending off a claim. Until a test case is fully argued, no one can
be sure what might constitute equitable remuneration. It may be a
lot more, or a lot less, than anybody thinks!
Performers' non-property rights
A distinction is drawn between performers' property rights (the
reproduction right, the distribution right and the rental and
lending rights described above) and performers' non-property
rights. The latter rights are infringed by any person who, without
the performer's consent, makes a recording and/or broadcast of a
live performance (or a recording directly from a broadcast),
exhibits to the public or broadcasts a performance by means of a
recording made without the performer's consent or imports
(otherwise than for private and domestic use) or in the course of a
business possesses, sells or lets for hire, a recording of a
performance which he knows, or has reason to believe, is an illicit
recording.
Performers' non-property rights are not assignable or
transmissible except by specific testamentary disposition (in the
absence of any specific disposition, the rights are exercisable by
the personal representatives). If the right is exercisable by more
than one person, it is exercisable by each of them independently of
the others.
Transitional provisions and savings
The regulations came into effect on 1 December 1996.
Subject to the special transitional provisions and savings set
out in the Regulations, the Regulations apply to performances given
before or after 1 December 1996 , but no act done before 1 December
1996 will be regarded as an infringement of any new right conferred
by the Regulations (ie a right arising by virtue of the Regulations
in relation to a qualifying performance, but excluding any right to
remuneration arising under the Regulations) or as giving rise to
any right to remuneration arising by virtue of the Regulations.
It is unclear whether the Regulations apply to agreements made
before 19 November 1992. It certainly is not clear that they do
not!
Special provisions
In the case of pre-1 December 1996 film production agreements,
the presumption of transfer of rental right applies, unless the
agreement provides to the contrary. The right to equitable
remuneration applies (subject to the exclusions referred to
below).
There is no right to equitable remuneration under the
Regulations in respect of (a) any rental of a sound recording or
film before 1 April 1997 or (b) any rental after that date of a
sound recording or film made in pursuance of an agreement entered
into before 1 July 1994, unless, in the case of (b), the performer
notified the person by whom the remuneration would be payable
before 1 January 1997 that he intends to exercise that right.
The new rights relating to qualifying performances do not apply
to copies of recordings of such performance acquired before 1
December 1996 for the purposes of rental or lending to the
public.
Antony Gostyn
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