The Rights Stuff

The issue of ownership, control over and remuneration from the product of one's labour has been one that performers have had to fight to defend since time immemorial. Over the years Australian performers have for the most part succeeded in this regard, collectively negotiating a significant number of rights through the agreements Equity have reached with producers. These rights among others include:

  • the right to receive a credit;
  • the right for the Artist's name or image not to be used in connection with commercial advertising without their written consent; and
  • the right to share in the financial success of a film once a production has entered into profit.

These are not insignificant economic and moral rights, all of which have led to significant improvements for the sustainability of performance careers and ensured greater control by performers over the use of their work and own image.

However a major problem has arisen for performers – a problem also faced by producers and in fact the entire entertainment and arts community from film and television to music and visual art. Digital technology, increased download speeds and capacity and increased ease of copying and transference of entertainment products has enabled audiences to access media content almost instantaneously. And the fast pace that these changes are taking place means that now more than ever a producer cannot control the exploitation of the content they have developed in collaboration with performers and crew.

Piracy – be it 'accidental' or other wise – is rampant. Recent figures produced by the Australian Federal Against Copyright Theft (AFACT) showed thatin the film environment there were 92 million pirate movies estimated to have been viewed or obtained either by downloading or buying pirate DVDs over the past 12 months. This has an impact not only the financial viability of the industry and performers who will lose out of eventual residuals but will also impact on our rights to control the material we create.

In order to protect these rights performers have had to seek legislative measures to deal with the actions of third parties. As is obvious, performer contracts only control the rights as they pertain between performers and producers. However, digital technology and piracy means that performers need protection to deal with the actions of third parties to these contracts.

Unless producers and copyright owners are inclined to address the situation themselves, the performer is powerless to, say, control the use of their image on the Internet and the context in which it is viewed. These images may be digitally altered and inserted into works that are for example offensive – all of which would be unknown to a viewer watching it on their computer. The performer is also impacted negatively in a financial sense as they will receive less residuals in the long term when it is being pirated over the Internet. While there may be cases where the producers and the performers interest coincide they are also likely to be times where those interests are diametrically opposed.

To counter this, there has been movement internationally to solidify the position of performers' rights. At the World International Property Organisation (WIPO), discussions regarding a treaty for performers working in audio-visual productions have been ongoing for many years. Currently performers copyright is recognised under the WIPO Performance and Phonograms Treaty (WPPT) but is quarantined only to sound recordings and record companies.

Recognition of rights in film and television has been held up for over 15 years due mainly to a disagreement between European delegates and the US Trade Representative (USTR). The USTR's position (influenced by the Motion Picture Association of America) has been that its employment laws should not be overridden. These laws as well the Screen Actors Guild (SAG) agreements and individually negotiated contracts assume an automatic transfer of rights to the producer. The Europeans on the other hand expect these rights to remain in place.

It is this issue and this issue alone that has upheld the finalisation of the treaty. In 2000, a provisional agreement was reached on 19 out of 20 Articles at a WIPO Diplomatic Conference. However, there has been recent significant movement – particularly in the US side. Negotiations between the Screen Actors Guild/American Federation of Television and Radio Artists (SAG/AFTRA) and the Motion Picture Association (MPA) have led to a set of words acceptable to both parties and therefore the United States' position with regards to the Treaty. Once this garners broad international support, and the signs at this point are positive we would hope it will be just a matter of time until the treaty is signed off and ratified by the Australian government.

If and when this occurs, performers will be looking to the government to ensure that these rights are protected under the law and not subverted in a similar fashion to those held in sound recordings. While the Howard Government's WIPO Performances and Phonograms Treaty ratification legislation superficially supported the concept of performers' copyright, it included the ability for producers to override this with agreements signing over all their rights. In most other countries where performers copyright is acknowledged, performers are granted a stand alone performers right – producers are not able to require a performer to assign their rights to the record company as a condition of getting the record deal. With this power it is likely that a significant number of record deals which have been signed since the introduction of this law have required an assignment of rights. This means that what the Government has given, in practical reality, the record companies have taken away and performers in the audio sector are not seeing the benefit from these new rights.These rights should only assignable to a collecting society set up in a similar way to the Resale Royalty Scheme.

Copyright is the fundamental way in which performers, like producers, can earn income, maintain a career and be rewarded for the work they undertake. It is critical that the Government and the law recognise and acknowledge this in order to ensure the ongoing viability and sustainability of performance as a career. The laws that were put in place in 2005 essentially provided lip service to this. In practice performers in the audio sector continue to miss out on being rewarded for their labour. It is important more than ever to ensure that these laws are corrected and that performers copyright in the audiovisual sector are introduced sooner rather than later.

Simon Whipp is the head of the Media, Entertainment and Arts Alliance

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