-- JonathanMo - 14 Sep 2015

Performers/performances

Prior to amendments to the CA in 2004, performers gained virtually no protection for their live performances, although playwrights, composers, set designers and choreographers acquired copyright protection for their work. If the performance was recorded the copyright belonged to the maker of the recording. The unsatisfactory convention was that performers relied on some form of protection through a contractual arrangement with the producer or entrepreneur. The limited form of performers' rights was not proprietary in nature, and only lasted for 20 years. Consequent upon changes arising from the US-Australia free trade agreement, as given effect by the US Free Trade Agreement Implementation Act 2004, performers now have proprietary rights over the recording (by sound or cinematograph film), for a period of up to 50 years [CA ss.248A, 248CA] of their live performance, and hence have the same exclusive rights as other owners of recordings. These changes are also retrospective to 1994.

A performer can:

• refuse any request to allow a performance to be taped, recorded or filmed
• stipulate, as a condition of entry to a performance, that any taping, recording or filming done is to be used for domestic and non-commercial purposes only
• negotiate a contractual arrangement with anyone filming, taping or recording for commercial purposes with regard to any or all subsequent uses of the filmed, recorded or taped material.

Note also that a person who records a performance may be infringing on the rights of the writer or musician who wrote the work being performed [CA Pt.XIA].

The inclusion in the definition of performance of an expression of folklore has significance, since it may extend protection to certain indigenous performers whose work has not otherwise been reduced to material form.