法律英语Performers'rightsmuddled.doc

European Intellectual Property Review
2012
Performers' rights: muddled or mangled? Bungled or boggled?
Deming Liu
© 2012 Sweet & Maxwell and its Contributors
Subject: Intellectual property. Other Related Subject: International law
Keywords: International law; Legal history; Moral rights; Performers' rights
Legislation: Copyright, Designs and Patents Act 1988  
Performances and Phonograms Treaty 1996 (WIPO) art.2, art.5, art.15 
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations 1961 
*374 This article first examines the history of the protection of performers. Thereafter, it reviews performers' rights under the CDPA 1988; here, it evaluates the adequacy of the definition of performance, and instructs the direction for amendments. In discussing the rights as granted to performers, it proposes eliminating the distinction between property and non-property rights; criticises the inconsistency and complexity of the law in its treatment of the equitable remuneration right; and addresses the current international efforts in evening out the moral rights with respect to performances embodied in different media. Moreover, the piece argues against the protection of live performance per se.
Introduction
Historically, performers had not been well respected and, as far as rights are concerned, they had long been denied entitlement. With the advent of the recording and broadcasting technologies, the protection of performances became an issue, and the law slowly reacted to offer some protection. In recent decades, the United Kingdom acceded to some international conventions and, in compliance with its obligations, granted more rights to performers. It apparently gave even more rights to performers with its membership in the European Union and hence obligations in implementing certain Directives dealing with performers' rights. However, performers are still not granted copyright; instead they are protected through performers' rights. Though performers' rights arguably match up to copyright,1 they are different in many respects. Given the fragmented history of performers' protection, the law is full of ambiguities and inconsistencies, and needs reforming.
Following this brief introduction, the article first looks at the history of the protection of performers and their performances. It examines what kind of treatment performers received from society, why historically performers were not granted copyright, and how they dealt with copying or imitation of their performances in the competitive market before the emergence of technologies posed a threat to their performances. Thereafter, the article reviews performers' rights under the current 1988 Act.2 It discusses the definition of performance, evaluates its adequacy and instructs the direction for amendments. It also examines the rights as granted to performers, i.e. non-property rights, property rights, equitable remuneration rights and moral rights. During the examination, it criticises the distinction between property and non-property rights and proposes eliminating such a distinction. It also seeks to find out whether the equitable remuneration right would apply if the soundtrack of a film is played in public or broadcast to the public; it criticises the inconsistency and complexity of the law in its treatment of the right, and proposes reform. In addition, when analysing the reason why moral rights are extended to live performances broadly and sound recordings only, the article also discusses the international efforts currently underway in reforming the law to even out the treatment of performances embodied in different media. Furthermore, the piece evaluates the non-protection of live performance itself and argues against protection. Finally, the article concludes the discussion.
History
It is trite that human society, ancient or recent, embodies many prejudices; nowhere is this better reflected than in its treatment of performers. Historically, many governments were reluctant to “recognise the creative contribution” of performers to their cultures.3 In 18th and 19th-century England, performers were held in low esteem; the general public regarded female performers as nothing but prostitutes; theatres and opera houses as “dens of potential insurgency”.4 During the period, the law was once changed in 1788 to the effect that actors were no longer classified as rogues and vagabonds, but as craftsmen.5 However, for a long time thereafter, the profession of acting “retained the stigma of immorality and vagabonds”.6 The Government controlled performances through censorship; it feared “crude” performances as having “a direct and pernicious impact on public order”.7 Those “crude” performances celebrated “delinquent morality” which “fosters a restless and *375 criminalized population”.8 Moreover, they might also advocate anti-government ideologies which would result in unrest.9
With time, those prejudices against performers had waned; but the law was slower in extending protection to performers and their performances than it did to authors of books in the form of copyright. Traditionally, it is perceived that authors should be protected for their works because they are creative; but performers when performing only exhibit talent, which is not as important as creativity.10 But Kaminstein argues:

“[T]here is no doubt in my mind that recorded performances represent the ‘writings of an author’ in the constitutional sense and are fully as creative and worthy of copyright protection as translations, arrangements, or any other class of derivative work.”11
Similarly, Cornish argues that “in principle, performances are an independent activity deserving and needing copyright”.12 The question arises, why did the performers not receive copyright for their performances in the same way that authors did for their creation? To answer this question, let us look at the historical background of copyright law in England.
Copyright was not needed in ancient times as the making of books was a technical and burdensome process which was restricted to the monks in monasteries and a few others who were able to read and write.13 The situation changed when William Caxton introduced into England the printing press in 1476, hence making copies of books on a large scale possible. That initially led to the publishers' copyright as established through the regulation of the Stationers' Guild and then strengthened through the establishment of the Star Chamber and through the licensing acts.14 Finally, when the licensing acts were abolished as restraint on trade, the publishers pressed the passage of the Statute of Anne in 1711 which, despite giving the authors copyright over their writings, in effect the publishers used as a strategy to maintain their monopoly over the book trade since the authors would not have the necessary financial or business acumen but simply assign their copyright to the publishers. The argument that copyright was granted to give recognition to the authors' intellectual fruit was not borne out, but that argument was employed by the publishers to press for the passage of the statute. The argument gained momentum in the subsequent landmark cases of Millar v Taylor 15 and Donaldson v Beckett.16 Anyway, the black letter law granted copyright to authors, but the practice of the publishers being assigned copyrights and hence in effect controlling them had been sustained for a long time and, to a large extent, still prevails in many industries today.
As far as performers are concerned, the situation was different. Arnold has argued that “performers did not need protection, for the only way in which their performance could be exploited was by the public paying for admission to a performance”.17 That was a situation where “artists could trade their performance for admission fees on a ‘no money, no performance’ basis”.18 But there was the issue of protecting performances from being imitated. In fact, as with publishers, the operators of places of performances such as theatres behaved similarly in monopolising performances, though they did so indirectly through letters patent and the licensing acts.
King Charles II in 1662 granted letters patent to Thomas Killigrew and William Davenant for performances, giving them the exclusive rights to perform “tragedies, comedies, plays, operas, music, scenes and all other entertainments of the stage”. They established Theatres Royal for such exclusive productions of English drama in London. Other theatres were “technically illegal” and subject to “constant threat of interference by the authorities”.19
The Theatres Licensing Act 1737 was passed to “protect the patents” and “suppress political attacks on the government”.20 It provided that, without patent or licence from the Lord Chamberlain, any person appearing in a performance was “a Rogue and a vagabond” subject to penalties, and that a true copy of new plays must be submitted for licensing, failure to comply with which the theatre was subject to £50 fine and would be “silenced”.21 The Act in effect was a censorship lasting until 1968.22 *376 In this respect, the business of performances was protected by a monopoly similar to the business of publishing and the book trade.
Now it may be useful to compare the practices of other ancient societies in protecting performances from being imitated. Those societies appeared to employ different methods in controlling imitation. In Asia, custom dictates that performers have the exclusive rights to perform certain plays, roles and styles” as created by them.23 Where custom does not prevail, performers of a certain genre protect their unique styles of performance from rival performers by restricting apprenticeship to family members or a couple of trusted pupils.24 For example, only a master's pupil may continue the style of performance of the master, as was the case with the actor Meilanfang in China.25
In the United States, performers or their performances traditionally were not protected by copyright for immorality or non-fulfilment of the constitutional requirements. Unable to invoke the law to protect their performances, vaudevillians, for example, self-policed their industry.26 Performers used trade papers to “name and shame” imitators and impostors, engaged theatre owners to root out copied acts and established some institutions to settle disputes about who was the originator of acts.27 However, mostly, imitation was simply allowed and likely expected: “Live vaudeville performers could only cover so much territory, so there was more room for duplication.”28 Indeed, contrary to the perception that “the presence of emulators or counterfeiters would ruin” the career of a performer, “audiences were willing to pay in proportion to the dancers' levels of talent and acclaim” and popular performers such as Fuller actually fared better in performing to sold-out crowds than rivals because of her original dance.29
Coming back to England, such indirect protection of performances as through the Theatre Royal was not effective30 and that became even more so with technological advances. As discussed above, when the printing press threatened the monopoly of the London publishers' book trade, they pressed for the passage of copyright law under the pretext of procuring the statutory right for authors over their books. In contrast, initially, there was no need for those in the performing business to press for a similar law. Indeed, “as long as there were no technical possibilities of fixing, or otherwise ‘reusing’, the artist's performance as such, as long as it, literally, vanished in the air”.31 Then with the emergence of the recording and broadcasting technologies, managers of theatres and performers were faced with serious problems of piracy and free use of recordings of their performances.32 Furthermore, there developed “a situation in which the artists were competing, in live situations, with themselves on record or film”.33 Then, theatregoers would not go to theatres and, for a period, theatres experienced reduced audiences and struggled to make profits.34
Arguably against such historical background, the Dramatic and Musical Performers Protection Act 1925 was passed, thereby making covert recording an offence and giving “protection to performers against secret or illicit recording and exploitation of their work”.35 But the Act “does not create ‘performers' right’. It merely prohibits making, distributing or performing a record which is made without the consent of the performers”; “no right of civil action”; no judgment for damages or for claiming a proportion of the offenders' profits made from doing the above prohibited act.36 The 1925 Act was subsequently amended but finally repealed by the Dramatic and Musical Performers Protection Act 1958. In complying with the obligations under the Rome Convention 1961,37the United Kingdom passed the Performers' Protection Acts 1963 as amended in 1972. Performers' rights are now embodied in the 1988 Act38 as amended by the EC Rental Rights Directive39 and the WPPT.40 In the ensuing discussion the article reviews performers' rights under the CDPA 1988.
Performance and its adequacy
The 1988 Act defines “performance” as:
“[A] dramatic performance (which includes dance and mime), a musical performance, a reading or recitation of a literary work, or a performance of a *377 variety act or any similar presentation, which is, or so far as it is, a live performance given by one or more individuals.”41
This definition is exhaustive and, in a sense, quite restrictive. For example, both Cornish and Laddie et al. argue that it excludes the live performances of sportsmen from protection, though Laddie et al. qualify the exclusion to the extent that “sports such as ice dance and perhaps synchronised swimming and the gymnastic floor exercise” would probably be dance and hence fall within “dramatic performance” in the definition.42
As from the definition, the performance must be a live performance; this is to prevent performers' rights from being created anew each time the recording of a performance is played, hence performed.43 The term “live” indicates that the performance “must be given in person and in real time”; there is no need for it to be done before an audience.44 This interpretation appears to go along the line with the WPPT to which the United Kingdom is party. Article 2(a) of the WPPT defines “performers” as “actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore”. The WPPT makes no reference as to “whether the performance should take place in front of a live audience or not”; nonetheless, it is believed that:
“[A] performance … takes place when the performer is on his or her own, for example, carrying out a private rehearsal or