Guidance on moral rights for performers

The following guidance is being issued before the Statutory Instrument that will introduce moral rights for performers is laid before Parliament. Therefore it is possible that Parliament may change some aspects. If this happens the guidance will be updated accordingly.

Regulations are being introduced that will provide a legal basis for performers’ moral rights in the United Kingdom for the first time in a similar manner to the moral rights for authors that were introduced in the Copyright, Designs and Patents Act 1988. The background to these Regulations and rights can be found in the consultation document (365Kb) issued by the Patent Office.

This guidance seeks to explain in simple terms the intended effect of the Regulations and reference should be made to the Regulations themselves for further details. Inevitably the guidance cannot deal with every instance where the Regulations may have an effect and it would be wise to seek legal advice when dealing with such rights. It should be borne in mind that the interpretation of the wording of the Regulations in a particular case would be a matter for the courts and that this guidance would be in no way binding upon the courts.

What are moral rights?

The Regulations provide for two rights for performers: the right to be identified as the performer in a performance (subject to asserting the right, see below) and the right to object to modifications made to performances that are prejudicial to the performer’s reputation.

Who gets the rights?

A performer in a live performance given in public, a performance that is broadcast live or a performance of which a sound recording is made and subsequently communicated or issued to the public. The performance must either be given by a person who is a citizen of a qualifying country or given in a qualifying country, which means the United Kingdom, another member State of the European Economic Community or a country designated as enjoying reciprocal protection with the United Kingdom, for more information see Statutory Instrument 2005 No. 852, The Copyright and Performances (Application to Other Countries) Order 2005 .

Who must give the rights?

The onus of identifying the performer would be on the person putting on or broadcasting the performance or communicating or issuing copies to the public of a sound recording of the performance. However, the performer must have asserted the right, in certain circumstances it may be sufficient to identify a group giving a performance and there are certain exceptions (see below). The right to object to modifications would be exercised against the person making the modifications, although once again there are certain exceptions.

How do I get the rights?

The right to object to modifications arises automatically and covers the whole or any part of a performance. The right to be identified must be asserted in an instrument in writing signed by or on behalf of the performer and then any person is bound by the assertion once it has been brought to their notice. It applies to the whole or any significant part of a performance.

What does it cost?

There are no official fees associated with these rights. However, as with any legal regime, there may be costs arising from seeking professional legal advice or from pursuing claims for the infringement of rights. Since the new regime should increase certainty and because the identification of artists is already well established, it is not envisaged that these costs will be significant

How long do they last?

The moral rights in a performance last for as long as the property rights in the performance, that is 50 years from the end of the year in which the performance takes place or 50 years from the end of the year in which a recording of the performance is released, see section 191 of the Copyright, Designs & Patents Act 1988 for more details.

Can the rights be transferred?

The rights cannot be transferred, except upon the death of the performer, when they can be passed on by e.g. the terms of a will. A performer or someone acting on his or her behalf can however consent to any act that would otherwise infringe his or her rights. It is also possible for a performer to waive his or her moral rights.

Are there any exceptions?

In order to avoid impractical situations the Regulations include a variety of exceptions and other provisions. Where a performance is given by a group it may be sufficient to identify the group rather than all of the individual performers; it is permissible for the manner of the identification to be agreed between the parties; there is no obligation to identify a performer where it would not be reasonably practicable to do so, nor in relation to performances given for the purposes of reporting current events or advertising any goods or services; and there are exceptions from the right to be identified for acts concerned with news reporting, incidental inclusion, things done for the purposes of examination, parliamentary and judicial proceedings and Royal Commissions and statutory inquiries.

Similarly the right to object to modifications does not apply in relation to any performance given for the purposes of reporting current events and is not infringed by modifications made to a performance which are consistent with normal editorial or production practice, nor by anything done for the purpose of avoiding the commission of an offence, complying with a duty imposed by enactment (such as the Acts licensing and monitoring broadcasters), or, in the case of the British Broadcasting Corporation, avoiding e.g. the inclusion of anything which offends against good taste. In the latter cases there may have to be a disclaimer that the modifications were made without the performer’s consent.

When will the rights come into force?

The Regulations will come into force on 1 February 2006.

What about old performances?

The Regulations do not apply to performances given prior the Regulations coming into force.

For further details contact Karl Whitfield:

Intellectual Property Office
Concept House
Cardiff Road
Newport
South Wales
NP10 8QQ
United Kingdom

Tel: + 44 (0)1633 814734