Book review: Performers' Rights

This is a review of Performer's Rights by the Rt Hon Sir Richard Arnold, Judge of the Court of Appeal of England and Wales. The book covers the rights of performers, particularly the rights conferred under Part II of the Copyright, Designs and Patents Act 1988 (as amended). Recognising the challenges for performers in the position and enforcement of their rights, the book also includes discussion on other forms of protections and remedies for performers, such as moral rights, contracts, passing off and copyright infringement.

 

Those working in the field of media and entertainment law will no doubt be familiar with Arnold's authorial text on Performer's Rights. The first edition was published in 1990 and it is now in its 6th edition, updated from its previous version which was published in 2015. The main updates in this latest edition include:

• Coverage of Brexit
• Amendments to the Copyright, Designs and Patents Act 1988 made by the Digital Economy Act 2017 and the Copyright and Related Rights (Marrakesh Treaty etc) (Amendment) Regulations 2018
• Analysis of CJEU case law concerning copyright and related rights, and in particular the right of communication to the public
• Analysis of recent UK case law, such as Heythrop Zoological Gardens Ltd v Captive Animals Protection Society and Warner Music UK Ltd v TuneIn Inc

For those less familiar, this title provides exhaustive coverage of performers’ rights, setting out the rationale, the current state of the law, as well as considering future developments. Topics include the evolution of the performers’ rights in the UK, through to all key aspects of the rights, such as subsistence, duration, ownership, licensing, remuneration, infringement, and exceptions. In addition, the book contains chapters on related rights such as moral rights, civil and criminal proceedings, contracts and other forms of protection. There is also a chapter on performers’ rights around the world, covering international treaties and specific countries. An appendix provides extracts of relevant UK, EU and international regulation. 

The book is presented in 11 chapters. The first chapter discusses how performers’ rights evolved, considering the arguments both for and against these rights, including a thorough discussion of the history in the context of international developments. Naturally, the first question addressed in the book is who are the performers? Actors, dancers, musicians and singers, yes. But where does the law draw the line; for example, Arnold asks, is a conductor a performer? What about a juggler? The answer, Arnold illustrates, is found in the performance, rather than the person. (A deeper dive into subsistence of performers’ rights is provided in chapter 2).

Grounded in the detailed history of the development of performer’s rights at a national and international level, Arnold concludes this chapter by making proposals for reform. He notes that whilst the CDPA 1988 has been amended to strengthen the position of performers, this piecemeal approach could benefit from a re-appraisal as a whole. Arnold’s recommendations include bringing performers’ rights in line with copyright and upgraded to full property rights. Performers should have the exclusive rights in their performance, or at the very least, he argues, performers should be entitled to equitable remuneration for the public performance and communication to the public of films and sound recordings.

The first task is to bring performers into the copyright fold proper, rather than to continue to pretend that performers’ rights are in some way different to other copyrights.

Throughout the book, Arnold mentions the impact of Brexit on performers’ rights, noting that EU law will remain relevant for a long time. Naturally, having followed closely the streaming inquiry, this Kat was keen to read chapter 3 on ownership, licensing, equitable remuneration and the copyright tribunal. Arnold walks the reader step by step through each concept, explaining clearly the proper interpretations and meanings of all the factors involved in each. Likewise, chapter 4 sets out the relevant law and legal tests for infringement of performers’ rights, which, as Arnold explains, are actionable as breaches of statutory duty. 

Permitted acts and defences are discussed in chapter 5, including the permitted acts under the CDPA 1988, plus the defences of consent, free circulation within the UK-EEA area, lack of knowledge, private and domestic use/private purposes, and arrangements made before commencement. Chapter 6 turns to consider enforcement of performers’ rights under civil proceedings, including who can bring an action, against whom, and where, as well as extensive coverage of what remedies are available and the factors considered in their calculation. Chapter 7 covers relevant moral rights for performers, before chapter 8 turns to criminal matters, including offences, defences, enforcement and penalties.

Whilst the book is mainly concerned with performers’ rights under the CDPA 1988, chapter 9 covers contracts, as Arnold notes that in practice, for most performers, contract law is the most important area of law. 

It is contract law that regulates performers’ relationships with each other, with promoters of performances and with producers of recordings of performances. The provisions of, say, a musician’s recording contract will have a much greater effect on him or her both financially and artistically.

The chapter focuses on three main problem areas that commonly affect performers’ contracts; assignment of performers’ property rights, licensing of performers’ rights and enforcement, in particular restraint of trade and undue influence. 

 "I believe in good moves” Bobby Fischer
Image: Riana Harvey

Chapter 10 continues the broad coverage of rights and remedies available to performers’ by scoping out other forms of protection that might be relevant to a performer. As Arnold notes, there may be situations where the rights afforded to a performer under Part II of the CDPA 1988 still leave them vulnerable to situations where they are either unprotected or not properly rewarded for their contribution. Therefore, looking further afield, remedies might instead be found in passing off, copyright infringement, breach of confidence, invasion of privacy, image rights or defamation. 

Lastly, chapter 11 provides a summary of performer’s rights around the world. It does so, first by reviewing the rights accorded to performers under the Rome Convention, TRIPs agreement, WIPO Performances and Phonograms Treaty and under the Beijing Treaty on Audiovisual Performances. This is followed by a table which sets out which countries have acceded to each of these international instruments. The final part of the chapter provides an overview of performers’ rights in Australia, Canada, Hong Kong, India, Ireland, Israel, Jamaica, Kenya, New Zealand, Nigeria, Pakistan, Singapore, South Africa, Sri Lanka and the United States.

Arnold provides thoughtful critique and insight into the application of performers rights which is both detailed and specific, whilst at the same time providing a broad and holistic approach to the protection and enforcement of performers’ rights. It almost goes without saying therefore that this book is essential reading for those practising or researching in the area of performers’ rights, and will no doubt be a well-thumbed bible for those of us with an interest in the protection of performers’ rights.

Details:

6th Edition

ISBN:  9780414087309

Published by:  Sweet & Maxwell

Format:  Hardback and eBook - ProView

Price: £285.00 from the publisher

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