The Copyright Act 1994 gives performers limited rights to control the exploitation of their performances where they haven’t given consent.
About performers' rights
Performers' rights are a type of intellectual property right. They are related to copyright but are independent from the copyright that may exist in a work that may be performed.
The Copyright Act defines protected performances by reference to the main categories of works protected by copyright. These are:
- dramatic performances
- musical performances
- readings and recitations of literary works
- performance of a variety act or any similar presentations.
However, certain types of activities are excluded from protection as performances. For example, reading, reciting or delivering news and information, playing or performing a sport and audience participation in a performance are activities excluded from protection under the Copyright Act.
The Copyright Act gives performers certain rights in relation to the communication (for example, broadcasting) of their live performances to the public and recordings made from their performances. Performers’ rights in relation to their performances expire 50 years from the end of the calendar year in which the performance takes place.
Performers’ moral rights
Performers have certain moral rights in relation to their performances given in public, the live communication of their performances and by means of a recording of the performance any playing or communication to the public, of their performance. These include the right to be identified as the performer and to object to derogatory treatment by any distortion, mutilation or other modification of the live communication, or by means of a recording the playing or communication to the public, of their performance.
A performer’s moral rights are not transferable or otherwise assignable to another person, except on the death of the performer.
Exceptions to performers' moral rights
Activities that are excluded from being covered by the performers’ moral rights include:
- incidental inclusion of a performance in a communication work or its recording
- transient reproduction of a performance or its recording
- performances by students or staff of an educational establishment
- criticism, review or news reading
- Parliamentary and judicial proceedings
- Royal Commissions and statutory inquiries
- copying of sound recordings for private and domestic use
- normal editorial or production practices.
Performers’ consent required for live communication and recording of their performances
The performers’ consent is required for the live communication and the recording of their performances (unless the recording is made for private and domestic use). Any recordings of their performances made without their consent (other than a recording made for private and domestic use) is referred to as an “illicit recording”. Performers may take legal action to prevent the copying and distribution, including the sale of illicit recordings, and the playing in, or communication to, the public of illicit recordings.
The performers’ rights relating to consent for live communication and recording of their performances are not transferable or otherwise assignable to another person, except on the death of the performer.
Performers’ property rights in sound recordings
The Copyright Act gives performers property rights in sound recordings made from their live performances. Where a sound recording of a performance has been made (with the performer’s consent), the performer’s authorisation is required for any communication to the public, copying and issuing copies of the recording to the public.
The performers’ property rights in sound recordings of their performances are in addition to the exclusive rights producers of sound recordings are given to under the Copyright Act. This means that in some cases both the performer’s and the producer’s authorisation may be required too. For example, issue copies of the sound recording to the public.
A performer may assign or otherwise transfer their property rights in a sound recording to the producer or any other person.
Exceptions to performers’ rights
A range of the exceptions apply to the performers’ property rights in a sound recording. Many of the exceptions and limitations are consistent with those provided under the Copyright Act in relation to the rights given to producers of sound recording. Generally, when an action is undertaken that does not infringe copyright in the recording, the action will not infringe the performer’s property rights in the recording.