16-02-06

New Copyright Law: Moral Rights Extended To Performers New copyright law has come into force extending "Moral Rights" to performers. Since 1 February 2006, performers have the legal right (with exceptions) to be identified as the performer and to object to derogatory treatment of their recorded or broadcast performances. The new laws have been inserted into the existing Copyright, Designs and Patents Act 1988, by way of the "The Performances (Moral Rights, etc) Regulations 2006". In the UK, copyright law is divided generally into three types: the best-known "copyright" laws which protect the works of authors, the lesser-known "rights in performances" laws which protect the live performances of musicians and other performers, and the little-known "Moral Rights" which protect the reputations of authors (and, now, also performers). This new extension of "Moral Rights" to performers includes the right to be identified as the performer when his performance is broadcast or when a recording of his performance is communicated to the public. He (or his stage name or the name of his group) must be identified in a manner likely to be noticed by the audience. Exceptions include where identification is "not reasonably practical" and where the performance is given for reasons relating to advertising or news reporting. No guidance is given as to when identification may not be reasonably practicable and this may or may not cover a radio presenter that fails to name all musicians performing on a recording. The performer also has the right to object to "derogatory treatment" of his performance which is defined as any "distortion, mutilation or other modification that is prejudicial" to his reputation. Exceptions include where the modification is consistent with "normal editorial practice" and where the performance is given for reasons relating to advertising or news reporting. Again, no guidance is given as to what would constitute "normal editorial practice" but it is arguable that the inclusion of an "outtake" in a bloopers programme would not be covered. In practice, these new Moral Rights for performers are unlikely to be of much real effect since the right to be identified is not infringed unless the performer has first asserted his moral rights in writing. Furthermore, the law specifically states that these new Moral Rights can also be waived by the performer in writing. Before February 2006, the relevant contract is likely to have governed when a performer has the right to be credited and the limitations applying to the credit. Similarly, producers have long been well advised to ensure that they secure unrestricted editing rights. The practical result is that record companies and broadcasters should now ensure that all "consent forms" in recording sessions are signed, whilst musicians should understand that (if they do not sign any waiver and do assert it in writing) they now have a new right that may help to enhance their profile and protect their reputation. The new regulations can be accessed at http://www.opsi.gov.uk/si/si2006/20060018.htm
Article by Tom Frederikse