Part III of the Copyright and Neighbouring Rights Act 2000 protects the people whose work carries a creation to an audience. Section 21 deals with performers.
Who counts as a performer
“Performers” includes singers, musicians and other persons who sing, deliver, declaim, play in or otherwise perform literary and artistic works or expressions of folklore.
“Includes” makes the list open. Actors, dancers, orators and narrators are within it.
And note the closing words: performers of expressions of folklore are protected. That matters greatly in Papua New Guinea, where singsing groups, string bands and traditional dancers perform material that is not itself a copyright work but an expression of folklore under Part V. The performance is protected under section 21 even though the underlying material is dealt with elsewhere.
Under section 3(5), the protection applies to performers who are citizens, and to non-citizens whose performances take place here, are incorporated in protected sound recordings, or are included in protected broadcasts.
Section 21(1) — the exclusive rights
(a) the broadcasting or other communication to the public of his performance — except where it (i) is made from a fixation of the performance, other than a fixation made under section 25 or otherwise made without the performer’s authorisation; or (ii) is a re-broadcasting made or authorized by the organization initially broadcasting the performance;
(b) the fixation of his unfixed performance;
(c) the direct or indirect reproduction of a fixation of his performance, in any manner or form;
(d) the first making available to the public of a fixation of his performance, or copies thereof, through sale or other transfer of ownership;
(e) the rental to the public or public lending of a fixation of his performance, or copies thereof, irrespective of the ownership of the copy rented or lent;
(f) the making available to the public of his fixed performance, by wire or wireless means, in such a way that members of the public may access them from a place or at a time individually chosen by them.
The broadcasting right applies to the live performance. Once the performer has authorised a fixation, broadcasting from that fixation is outside paragraph (a) — unless the fixation was made under section 25 or without the performer’s authorisation.
Similarly, a re-broadcast made or authorised by the organisation that first broadcast the performance is excepted. The performer’s control is exercised once, at the point of first authorisation.
Fixation is defined in section 2 as the embodiment of sounds, or of representations of sounds, from which they can be perceived, reproduced or communicated through a device. Paragraph (b) — the right over fixation of an unfixed performance — is the anti-bootlegging right: recording a live performance without permission.
Paragraph (d) is a first sale right, exhausted once the fixation has been made available with authorisation. Paragraph (e), by contrast, applies irrespective of the ownership of the copy — the same structure as section 6(1)(e) for works. Paragraph (f) is the on-demand right, in the same terms as section 6(1)(j).
Section 21(2) — the audiovisual rule
Where a performer has authorized the incorporation of his performance in an audiovisual fixation, subsection (1) shall have no further application.
Once an actor consents to being filmed, their economic rights under section 21(1) cease to apply to that performance. They do not retain a reproduction right, a rental right or a making-available right over the film.
Performers on sound recordings are in a much stronger position: their rights continue, and they also share in the equitable remuneration under section 23. Screen performers have neither.
The practical consequence is that a screen performer’s protection lies almost entirely in the contract — which is what section 21(5) is about.
Note that section 21(2) is triggered by authorised incorporation. An unauthorised audiovisual fixation does not extinguish the rights; it infringes paragraph (b).
Sections 21(3) and (4) — performers’ moral rights
Independently of the economic rights, and notwithstanding the transfer of those rights, the performer has, in respect of his live aural performances and performances fixed in phonograms —
the right to claim to be identified as the performer, except where omission is dictated by the manner of the use of the performance; and
the right to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.
(4) Section 7(3) and (4) apply mutatis mutandis — so the same rules on transmission on death and on written, specific waiver apply.
Note the subject matter: live aural performances and performances fixed in phonograms. Consistently with section 21(2), performers’ moral rights do not extend to audiovisual performances.
Section 21(5) — freedom to contract
Nothing in this section shall be construed to deprive a performer of the right to agree by written agreement on such terms and conditions that are most favourable to him in respect of his performances.
- Scope of the authorisation. Given section 21(2), an actor should treat consent to audiovisual fixation as the whole of their bargaining power and price it accordingly.
- The share of equitable remuneration. Under section 23(2), unless otherwise agreed, half the remuneration received by the producer goes to the performers. That default can be varied — so read the contract.
- Attribution. Section 21(3) gives a right to be identified — but it yields where omission is dictated by the manner of the use. An express credit clause is worth more.
- Limits on modification. Any waiver of the integrity right must comply with section 7(4) and (5) — in writing, specifying the rights, the circumstances, and the nature and extent of the modification permitted.
- Rental and lending. Paragraph (e) applies irrespective of who owns the copy, so a performer keeps leverage over rental of sound recordings.
Section 21(6) — how long the rights last
The rights are protected until the end of the fiftieth calendar year following the year in which the performance was fixed in a phonogram — or, in the absence of such a fixation, from the end of the year in which the performance took place.
Fifty calendar years, measured from fixation or from the performance. That matches the terms for producers (s 22(2)) and broadcasters (s 24(2)), and runs to the end of a calendar year rather than from an exact date — simpler than the author’s life-plus-50 term in section 17(1).
All of these rights are subject to section 25, which removes them for short excerpts used in reporting current events, for reproduction solely for scientific research, for face-to-face teaching, and wherever a work may be used without the author’s authorisation under Part II.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 3, 6, 7, 17, 21–25, 30
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.