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Protection for performers, copyright and moral rights

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Under the Copyright Act, performers have the following rights:

Performers’ rights in relation to their performances

Generally, the consent of the performer is required to make a sound recording or film of, or to communicate to the public, their live performance. In addition, the performer’s consent is required for some uses of recordings of their performance in certain circumstances.
What performances are protected?
- The performers’ rights apply to live performances of:
  - dramatic works (including improvisations and puppet shows)
  - musical works (including improvisations)
  - literary works (ie reading, reciting or delivery of literary works (or improvised literary works))
  - dance
  - circus or variety acts, or any similar presentation or show
  - expressions of folklore
  The following are not performances:
  - certain performances by teachers in the course of giving, and students in the course of receiving, educational instruction
  - a reading, recital or delivery of news and information
  - performances of sporting activities
  - participation in a performance as a member of an audience
What rights are given to performers?
- Subject to certain exceptions, the Copyright Act requires that permission is obtained from a performer for the following activities in relation to their live performance:
  1. making sound recordings or films of the performance either directly from the live performance or indirectly from a communication of the performance (eg from a broadcast or cable transmission)
  2. communicating the live performance to the public either directly from the live performance or from a recording of it that has not been authorised by the performer
  3. certain additional activities or dealings with recordings of the live performance that the person undertaking the activity or dealing knows, or ought to have known, will be done using recordings made without the permission of the performer
  4. copying, for use in a film sound-track, a sound recording of a performance made with the permission of the performer where the person making the copy knows, or ought to have known, that the performer had not authorised the making of the sound recording for that purpose
  Generally, these rights apply to performances given on or after 1 October 1989.
  
  Performers’ rights are separate from copyright, and are not protected as copyrights.
How long do performers’ rights last?
- The protection period for live performances varies depending on the circumstances. Generally, for example:
  - in relation to sound recordings of live performances covered by paragraphs (a) and (c) in the section above, the protection period commences on the day when the performance was given and ends 50 years after the year of the performance
  - in relation to films of live performances covered by paragraphs (a) and (c) in the section above, the protection period commences on the day when the performance was given and ends 20 years after the year of the performance
  - in relation to the rights described in paragraphs (b) and (d) in the section above, the protection period commences on the day when the performance was given and ends 20 years after the year of the performance

In relation to sound recordings of live performances made on or after 1 January 2005, performers will generally co-own the copyright in the sound recording of their performance with the other makers of the sound recording, subject to a number of exceptions. This co-ownership only applies to audio recordings of performances, it does not apply to filmed or videoed performances. Please refer to Who owns copyright? for further information on copyright ownership generally.

Separate rules apply to sound recordings made before 1 January 2005.

Moral rights of performers

In relation to performances given on or after 26 July 2007, performers have moral rights in their live performances and sound recordings of their performances. These moral rights are:
- the right of attribution of performership in respect of the performance
- the right not to have their performership falsely attributed
- the right of integrity of performership in respect of the performance (ie the right not to have the performance subjected to derogatory treatment)
The right of attribution of performership, and the right not to have performership falsely attributed, in sound recordings of performances continue until the copyright in the sound recording expires. However, the right of integrity of performership in a sound recording of a performance continues until the performer dies.

Only individuals have moral rights and these cannot be assigned. However, a performer can consent to their moral rights in respect of their live performances or sound recordings of their performances being used in a particular way that would otherwise be an infringement of the performer’s moral rights.

This information is provided as general information only. It provides a basic introduction to copyright and is not intended to be comprehensive.

Reviewed December 2017