Having spent 20 years working in various roles in television production, Jaqua Page has recently qualified as a solicitor in NSW. She now resides in Vancouver, Canada and is pursuing a career in Media and Entertainment law. Jaqua was previously a volunteer with Arts Law.
With the advent of digital technology, performers require adequate protection from and remuneration for exploitation, unauthorised use and digital manipulation of their performance. New technology is being used to create high quality content, which is delivered online to sophisticated audiences. As the demand for content rises, producers are either repackaging conventional content or creating original content for new media platforms.
The grant of copyright can provide the performer some measure of control over how and when his or her work is used. Moral rights legislation ensures attribution and prevents false attribution and derogatory treatment of the work (for example making significant changes without the performer's consent). There have been modifications to copyright law benefiting performers in relation to sound recordings but it is questionable whether the numerous international conventions, bilateral agreements, multilateral agreements and domestic laws have adequately addressed the rights that should be afforded to audiovisual performers in the new digital era.
History of copyright and performers' rights in Australia
Performers' rights have come in to existence in Australia through a process of development and ratification of international treaties. Australian copyright law was formally introduced in the early part of the 20th Century and was based on the British Statute of Anne 1709. The 1959 Spicer Committee Report was the main influence behind the drafting of the Copyright Act 1968 (Cth) (Copyright Act), which replaced the 1905 act. However, until 1989, the Copyright Act was silent on the rights of performers.
Copyright harmonisation between participating nations was effected by the 1886 Berne Convention, a mechanism providing specific categories of copyright, minimum protections and standardisation of the duration of copyright. A number of subsequent conventions and treaties have attempted to keep pace with the advancement of technology including Berlin (1908) integrating photography, film and sound recordings, Rome (1928) adding broadcasting and Brussels (1948) adding television.
The Rome Convention (1961) for the Protection of Performers, Producers of Phonograms & Broadcasting Organisations developed the concept of “neighbouring rights”. These are rights that “neighbour” on copyright, giving protection to performers in their performances, record producers in their sound recordings and broadcasters in radio and television transmissions. In contrast to the well established argument that only creators should enjoy the benefits of copyright with these neighbouring rights producers and broadcasters are given similar rights to creators despite using the works of others as raw material for the purpose of communicating the product to the public.
These rights were incorporated into Australian domestic law as Part XIA of the Copyright Act, following a report on the issue of performers' rights by the Copyright Law Review Committee (CLRC) in 1987. Part XIA gives performers the right to prevent unauthorised recordings of a live performance and the right to prevent the copy, sale or distribution of unauthorised recordings. Only “neighbouring” rights were given under these amendments as a majority of the committee believed that granting performers copyright would create practical problems for producers and broadcasters resulting in a disincentive to use and exploit Australian performances.
Developments in performer's rights internationally
The World Intellectual Property Organisation (WIPO) was established in 1967 to administer international treaties in the field of intellectual property. WIPO operates in tandem with the World Trade Organisation (WTO) and the 1993 Agreement on Trade Related Aspects of Intellectual Property (TRIPS). In 1996, the WIPO Copyright Treaty (WCT) and the WIPO Performance and Phonograms Treaty (WPPT) were concluded. The WPPT grants protection including moral rights to performers in relation to sound recordings and to record companies. These rights are only available for fixed, purely aural performances.
During the 1996 diplomatic conference in Geneva, the 127 participating WIPO member countries were unable to agree on a method for harmonising legislation that would guarantee protection of the rights of audiovisual performers. The resulting WPPT treaty does not provide any mechanism for protection to be granted to actors. The subsequent Diplomatic Conference on Audiovisual Performances in 2000 provided the 120 member countries with a forum to continue discussions. Again, no resolution was reached on the outstanding issue of how audiovisual performers could transfer their rights. The issue is important as it would enable producers or directors to control the bundle of rights within the audiovisual production, thus allowing for an easier means of administering and licensing the production. Had agreement been reached, performers who were nationals of countries ratifying the agreement would enjoy rights over distribution and public broadcast of audiovisual works embodying their performances.
It has been suggested that the inability to agree on adequate protection of audiovisual performers at the international level was attributable to US trade representatives. The American entertainment industry is the second largest export industry in the US after the aerospace and aviation sector. Seemingly influenced by the power of Hollywood producers, the US opposed setting universal standards for the protection of audiovisual performers, content to rely on national protection found via its employment law, labour law, the Screen Actors Guild (SAG) agreement and individually negotiated contracts, all of which generally ensure an automatic transfer of rights to the producer.
Differences in protection for audio performers versus audiovisual performers
With Australia's accession to the WPPT and WCT and the implementation of the Australia–United States Free Trade Agreement (AUSFTA), copyright legislation was significantly amended to give performers copyright in audio, but not audiovisual, recordings of their performances. Since 1 January 2005, aural performers are considered first owners of the copyright in a sound recording of their performance along with the owners of the master recording – traditionally the record company.
Being co-owner of copyright, the performer has the right to copy the sound recording, cause it to be heard in public, communicate or broadcast it and exercise commercial control over rental of the recording. Under the Copyright Act, a performer may bring an action for unauthorised use or distribution of his or her aural performance as embodied in a sound recording, and may seek remedies including an injunction or damages. Audiovisual performers remain outside of these provisions and once permission for the recording or broadcast of their audiovisual performance is given, they have no further rights.
Most of Australia's obligations under the WCT and WPPT treaties were met with the implementation of the AUSFTA and the Digital Agenda Amendment Act 2004 (Cth). However, moral rights for performers (found in Part IX of the Copyright Act) could not take effect until the treaties had been ratified and came into force in Australia on 26 July 2007. Once again, the “privilege” of moral rights is only applicable to those performers who contribute to the sounds of a recorded performance. Moral rights are particularly important to performers as they are recognition of the creative act of performance.
There are slight differences in the protection for performers provided at law in Canada and the UK, but essentially, like Australia, performers' rights are restricted particularly with regard to audiovisual performances and the use of a performance once permission to record a performance has been granted. In contrast, French law insists on remuneration for exploitation.
The digital era enables both producers and consumers to easily copy and manipulate audiovisual work. Changes in speed and bandwidth have enabled the internet to become an efficient platform for both creating and circulating copyright material. The ability to share and develop content can be done at virtually no cost and generally without the rights holder's approval. The rapid movement to DVD and new delivery platforms such as Video On Demand (VOD), mobile phone downloads and YouTube illustrate how quickly the law needs to respond if it is to keep step with technology.
Currently, there is an important dispute over the exploitation of DVD and other media delivery platforms. The Writers Guild of America, West (WGA) have staged a strike demanding that Hollywood producers adequately remunerate writers for DVD residuals for material broadcast over the internet, mobile phones and other devices. SAG, being the US equivalent of Australia's Media Entertainment and Arts Alliance (MEAA), will be renegotiating their contract with producers in June 2007 and is rumored to be focused on the same issue. It is expected that this will become an international issue.
In addition to new media platforms, technology is potentially creating new categories of copyright. Digital characters are a burgeoning trend in film production. Several movies, including Final Fantasy: The Spirits Within (2001), The Polar Express (2004) and Beowulf (2007) have substituted real actors for computerised ones. This has been achieved with 'motion capture' or 'mocap' technology, where actors' movements are digitised and applied to computer-generated characters. A growing number of other films have used graphic technology to create crowd scenes where once hundreds of extras would have been hired.
Virtual Celebrity Productions, based in Los Angeles, employ reconstructive 3D modeling based on the life-casts of once great stars like Jimmy Cagney, Vincent Price and Marlene Dietrich. Combining the movements of a live actor, a voice over artist mimicking the style and delivery of the deceased actor and the original performance, the creator is able to achieve a lifelike but virtual performance. With the advancement of technology like this, we could potentially see films with Tom Cruise starring alongside James Dean. The current law protecting audiovisual performers does not make provisions for actor's 'motion rights', that is, it does not protect the rights of the actor providing the movement. It is evident that new language will have to be introduced to existing law if the law is to contend with such developments in technology.
Once an audiovisual performer has granted permission to record a performance, his or her rights are severely limited. As discussed, digital technology allows the performance to be manipulated in a number of ways. In Australia, film makers such as Michela Ledwidge are producing films that can be "ripped apart, sampled and reused", believing that there is a demand for reusable content. Ledwidge relies on the strength of a creative commons licence to control the manipulation or derogatory treatment of the work. However, MEAA the peak organisation primarily responsible for negotiating additional rights and payment scales for performers is concerned. Simon Whipp the National Director of MEAA believes that "if the performer's performance is able to be mixed or altered in a way which may be derogatory or detrimental to the performer's reputation, there will be no restrictions on the ability of others to take excerpts of the film or, indeed, take the film as a whole and adapt and alter the performer's performance." A film that is being structured to be pulled apart encourages subsequent users to adapt and alter the actor's performance for purposes for which the actor will probably be unaware. One of the main issues for performers in the digital age is protecting secondary use and knowing in advance the value of rights being assigned to producers. In Australia, the audiovisual performer remains without a right of action against infringers who are not party to a contract or agreement with the performer.
Contracts and industry agreements
In reality, legal provisions are often out of step with technological developments and also generally overridden by contracts, awards and industry agreements. As a result, audiovisual performers will increasingly have to rely on the industrial strength of the unions and lobby groups to protect both their economic rights and the right to control third party use of a performance.
The problems associated with performers having adequate rights are universal. The International Federation of Actors (FIA) and the International Federation of Musicians (FIM) have both highlighted the issues raised by performance rights in new electronic media. The FIA claims that "the balance of power in the bargaining relationship between the performer and producer means that rights can be easily transferred to the producer, and in most film contracts the actor is required to assign to the producer all rights in all media in perpetuity." Despite the inequalities, some progress is being made. Equity UK recently reported that it has a new deal with the BBC to receive a percentage of revenue from Google and YouTube deals, SAG is filing claims against producers for reuse of traditional theatrical clips in new media, asking for three times the performer's rates in compensation and ACTRA in Canada has recently negotiated a provision for new media residuals in their agreement with producers.
Performers and collective bargaining groups have to be one step ahead of technological developments to adequately protect audiovisual performers' economic rights and third party use. International conventions, multilateral agreements and domestic law should be compelled to provide audiovisual performers with greater confidence and power to exploit their creations. The power of audiovisual performers to negotiate substantive rights would improve dramatically should copyright law be amended to mirror the co-ownership that aural performers have already been granted.
 Copyright Act1905 (Cth).
 Jacob Varghese Guide to copyright and patent law changes in the US Free Trade Agreement Implementation Bill 2004 Information and Research Services, Parliamentary Library Department of Parliamentary Services, Canberra 2004 at page 10.
 Adler B, “The Proposed New WIPO Treaty for Increased Protection for Audiovisual Performers: Its Provisions and Its Domestic and International Implications” (2002) Vol 12 Fordham Intellectual Property, Media & Entertainment Law Journal. 1089-1118 at 1094.
 Ibid at 1114.
 Copyright Amendment Act1989 (Cth) enacting new Part XIA.
 U.S. Free Trade Agreement ImplementationAct 2004 (Cth) and Copyright Legislation Amendment Act 2004 (Cth).
 The rights are limited if the recording was made prior to 1 January 2005.
 Note 3 at 1098.
 Last minute meeting underway to avert Hollywood writers' strike, Canadian Broadcasting Corporation (online), 4 November 2007 http://www.cbc.ca/story/arts/national/2007/11/03/writers-strike-sunday.html
 In touch with technology series “Dead Actors”, http://home.intekom.com/intouch/archive/intouch_tech/episode3/actingdead.htm
 ABC, “Unrepresented Litigants who incur Unnecessary Costs; Remixable”, The Law Report, 31 May 2005, http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s1379751.htm
 Actors Equity, “English-Speaking Unions of Int'l Federation Meet in LA” (Press release, 27 July 2007)