By Melvina Valerii, Arts Law Intern and Delwyn Everard, Arts Law Deputy Director
From the perspective of most performing arts practitioners, performers play a vital role in the artistic creative process. An actor’s or musician’s interpretation of a theatrical work or musical composition can add unique and unforgettable nuances to the performance. Although not regarded as the author of the work in the way that the playwright, choreographer or composer is, they are an essential link between the author and the audience. In recognition of the special contribution made by performers in the communication of copyright works, Australian law now gives performers a limited class of legal rights. In France, the intrinsic significance of the performers’ role has long been understood to be deserving of protection and the rights of performers are substantially greater. This article examines the differences between the two systems.
Comparing the Australian legal regime with the French legal system requires an understanding of different historical and cultural contexts. While performer’s protection is relatively new in Australia, French protection is more established. Moreover, France has a long history as a centre of artistic creativity and of respecting and valuing the members of its artistic communities. Its artistic traditions have influenced movements in music, literature and the visual arts throughout the world.
French performers’ protection, also called “droit des artistes interpretes”, and Australian performers’ rights seem to have some similarities. But a closer look reveals that there are some fundamental differences between the two systems.
What is a performance?
Australian Law and French law seem to define a performance in the same way. In both jurisdictions, the concept of performing covers several situations including live dramatic, musical, dance or circus performances, and live recitals of literary works, as well as expressions of folklore. So, a performer may be a musician or a dancer or any other person who acts, sings, recites or otherwise performs.
What kind of protection?
Under French law, performers don’t have copyright but enjoy a strong “neighbouring right” in their performance. It means that they have the exclusive right to authorise all recording, reproduction or communication to the public of their performance. Further, subject to certain conditions, the sound and the visual images comprising an audio-visual work cannot be separated from each other without the performer’s permission. There is an exception concerning audio-visual works: the contract created between the producer and the performer for the creation of the audio-visual work implies authorisation by the performer for the recording, reproduction and communication of the performer’s performance to the public unless expressly stated otherwise.
Additionally, French law follows an important principle of strict contractual interpretation which creates an important level of protection for performers: all use (reproduction, distribution, rental or making available of fixed performances) in all media (internet, newspaper, digital recording, etc.) which is not expressly authorised by the performer in writing is unauthorised and represents an infringement of the performer’s rights. Thus it is not possible to make an express assignment or licence of ‘all’ rights – each use and media must be separately identified in the contract. If a performer agrees to a reproduction of an audio recording on compact disc, that cannot be extended by implication to allow the performance to be made available digitally for internet sale.
In contrast, in Australia, performers can withhold consent only in broad general terms – to the recording of their live performance, and to its communication to the public. Once the performer has given permission for his performance to be recorded (audio or video), the performer generally has no further rights in relation to that recording and, with one exception, cannot control or prevent its use (copying, broadcasting, transmission, etc). The exception is that an authorised audio recording cannot be synchronised as the soundtrack to a film without specific consent. There is no requirement that such consent must be in writing.
However, since 1 January 2005, Australian law does grant limited co-ownership rights of copyright to unpaid performers who contribute to the sounds in a non-commissioned recording of a live performance. Such ownership rights however are not extended to performers whose performances are caught on film rather than in a sound recording, performers who do not contribute to the sounds (dancers, non-speaking acting roles, mime artists etc), performers who are paid to perform or performances where the sound recording is commissioned. In the limited circumstances where the performer is entitled to a share of copyright, they will enjoy a stronger degree of control over the use of the recording of the performance.
Under French law, the duration of performer’s protection is currently 50 years from the performance or from the first communication to the public. However, on 27 September 2011, a new European Directive was adopted by the European Parliament which increases the duration of musical performers’ rights to 70 years after the communication of the performance to the public or from the publication of the performance – bringing musical performers’ protection more in line with that already given to copyright authors. This Directive is yet to be enacted into law by the French Parliament.
Under the Australian Copyright Act, performers’ rights are shorter. The rights to control the communication of a live performance to the public and the inclusion of a recorded performance in a soundtrack expire at the end of 20 years after the year in which the performance was given. Rights in respect of the use of unauthorised sound recordings last 50 years in the case of sound recordings and 20 years in the case of audiovisual recordings. Once again, the gap between the French and the Australian systems is only narrowed in relation to the limited class of performances embodied in sound recordings where the Australian law confers rights of copyright on the performer – rights which last for 70 years from the end of the calendar year in which the sound recording is first published.
Under both French and Australian law, performers have moral rights including the right to attribution, the right not to have performance falsely attributed and the right to integrity of the performance. However, the duration and the scope of these rights are very different.
Under the Australian Copyright Act, moral rights are limited to performances consisting of sounds. The rights of attribution and false attribution in recorded performances continue until copyright in the sound recording expires. The right of integrity in a recorded performance continues until the performer dies. On the other hand, French moral rights are more extensive: they cover all types of performance not just those consisting of sounds. They also continue indefinitely: a performer’s heirs always have the right to sue for infringement of the performer’s moral rights.
A matter of perspective
French protection is more potent and more effective than the protection afforded under Australian law. French jurists believe one explanation could be found by examining cultural attitudes to creativity and artistic expression, something that has historically always been at the heart of French identity.
The role of copyright in each legal system could provide another explanation. In Australia, copyright is seen first and foremost as an economic right, a means for creators to engage in the market economy and use their rights of reproduction and communication to put their copyright to work as an economic asset. Performer’s rights are not seen as economic rights but personal rights.
In France, the fundamental focus of copyright law is not the market and the generation of economic value but the protection of the link between the creator and his or her work. Performer’s rights are seen as an integral and essential part of preserving the integrity of the work. Protecting the performance is a means of protecting the work itself.
In both legal systems, copyright and related rights are considered to have an important economic and cultural impact. These protections provide encouragement and incentives for the creation of, and investment in, new works, performances and other protected matter (music, films, print media, software, broadcasts, etc.). A vigorous creative community contributes not only to the cultural life of the nation but also to its competitiveness, employment and innovation.
A promising future for the protection of audiovisual performances?
After more than 12 years of negotiation, a new international treaty called the “Beijing treaty” was concluded on June 24, 2012. It recognises audiovisual performers’ rights in their performances and gives them exclusive economic rights in their live performances fixed in a sound recording or audiovisual record, including the rights to broadcast and communicate to the public, reproduce, distribute, rent and make available to the public by wire or wireless – as well as moral rights. This treaty brings performers’ protection much closer to the protection already conferred by French law.
However, to be effective in Australia, the Treaty needs to be ratified by 30 eligible parties (including Australia) and the Australian Government then needs to amend the Copyright Act in line with the Treaty. Disappointingly, the final version of the Treaty includes an Article 12 which has the potential to reduce the beneficial impact on performer’s rights by facilitating the transfer of the authorisation rights back to audio visual producers. If Australia chooses this option, the impact of the treaty will be largely symbolic. Nevertheless, a symbolic victory for performers is sweeter than no victory at all.
 Under the Copyright Act 1968 (Cth), performers’ were granted limited rights in relation to unauthorised recordings and communication date from 1989, while co-ownership of the copyright in sound recordings of live performance dates from 2005 and performers' moral rights from 2007.
 If the French performer’s protection was still at an early stage from the first part of the 20th century, the performer status has been definitively established with the Rome Convention of 26 October 1961 and the French law of 3 July 1985.
 Articles L.212-1 and following of Code de la Propriete Intellectuelle
 Article L.211-4 of Code de la Propriete intellectuelle
 Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyright and certain related rights