Performer’s rights
Personal rights - natural persons only, can’t be assigned or transferred
‘Performance’ protected - Copyright Act 1968?
Copyright Act in 1989 – Pt XIA
• ‘neighbouring rights’ to copyright
• Previously under the CA only authors protected not performers – even if a performance was
recorded copyright belonged only to the maker of the film or sound recording
Protected - dramatic, musical and literary works and improvisations, dance, circus and variety
acts, and expressions of folklore 民间艺术 s248A(1)
Performance not protected
Not protected: news and documentary presentations with an informational content, sporting
activities and judicial proceedings: s248A(2)
If there is a recording, is it an ‘exempt recording’?
Exceptions recording (of broadcasts of performance):
• for the purpose of reporting news or current affairs or for criticism and review – s248A(1)
definition of ‘exempt recording’
• for educational purposes – s248A(1) definition of ‘exempt recording’ & s248B
• for private or domestic use – s248A(1) definition of ‘exempt recording’ & s248D
• for scientific research purposes – s248A(1) – definition of ‘exempt recording’
Is the ‘performer’ within the meaning of the Act and not subject to a denial of rights?
‘Performer’ Australian citizens/residents AND from countries that offer reciprocal protection
‘Bern Convention’ – s248U
Denial of rights to certain performers pursuant to s248V: e.g., citizens of countries not giving
adequate protection to Australian performances
Has the performer’s right to withhold or grant consent to a broadcast or recording been violated?
Rights: performer’s consent is required for the broadcast or recording of a live performance –
s248G, unassignable civil rights – unlike copyright they are not property rights
Has additional consent been granted if there is a sound recording that is incorporated into a film soundtrack?
No further consent once given - an authorised recording may be used in any way (*display)
without further consent being obtained
Additional consent – ‘sound recording’ used in the soundtrack of a film
Is the broadcast or recoding within the duration of protection?
Duration of protection:
• 20 years for most performances– s248CA(1) BUT 50 years for sound recordings of
performances – s248CA(3)
• Performers may take action against makers and distributors of unauthorised recordings –
s248J
• These rights to bring action are not assignable – s248N
Remedies
Remedies: ss248J(2)-(5) - injunction, damages and Div 3, Pt XIA
offences: unauthorised recordings – 2-5 years
Personal rights - natural persons only, can’t be assigned or transferred
‘Performance’ protected - Copyright Act 1968?
Copyright Act in 1989 – Pt XIA
• ‘neighbouring rights’ to copyright
• Previously under the CA only authors protected not performers – even if a performance was
recorded copyright belonged only to the maker of the film or sound recording
Protected - dramatic, musical and literary works and improvisations, dance, circus and variety
acts, and expressions of folklore 民间艺术 s248A(1)
Performance not protected
Not protected: news and documentary presentations with an informational content, sporting
activities and judicial proceedings: s248A(2)
If there is a recording, is it an ‘exempt recording’?
Exceptions recording (of broadcasts of performance):
• for the purpose of reporting news or current affairs or for criticism and review – s248A(1)
definition of ‘exempt recording’
• for educational purposes – s248A(1) definition of ‘exempt recording’ & s248B
• for private or domestic use – s248A(1) definition of ‘exempt recording’ & s248D
• for scientific research purposes – s248A(1) – definition of ‘exempt recording’
Is the ‘performer’ within the meaning of the Act and not subject to a denial of rights?
‘Performer’ Australian citizens/residents AND from countries that offer reciprocal protection
‘Bern Convention’ – s248U
Denial of rights to certain performers pursuant to s248V: e.g., citizens of countries not giving
adequate protection to Australian performances
Has the performer’s right to withhold or grant consent to a broadcast or recording been violated?
Rights: performer’s consent is required for the broadcast or recording of a live performance –
s248G, unassignable civil rights – unlike copyright they are not property rights
Has additional consent been granted if there is a sound recording that is incorporated into a film soundtrack?
No further consent once given - an authorised recording may be used in any way (*display)
without further consent being obtained
Additional consent – ‘sound recording’ used in the soundtrack of a film
Is the broadcast or recoding within the duration of protection?
Duration of protection:
• 20 years for most performances– s248CA(1) BUT 50 years for sound recordings of
performances – s248CA(3)
• Performers may take action against makers and distributors of unauthorised recordings –
s248J
• These rights to bring action are not assignable – s248N
Remedies
Remedies: ss248J(2)-(5) - injunction, damages and Div 3, Pt XIA
offences: unauthorised recordings – 2-5 years
