LW4641 Chap.9 Performers' Rights, Remedies and Enforcement
Performers' Rights, Remedies and Enforcement
Why performers need their own rights
Performers contribute to works, but a live performance is transitory, and for a long time their interests were treated as subordinate to those of copyright owners. Part 3 of the Ordinance now protects them through rights related to copyright, drawing on the Rome Convention, the Geneva Phonograms Convention and the WIPO Performances and Phonograms Treaty.
A performance includes dramatic, musical, recited, artistic, folklore and variety performances by one or more individuals, and a performance qualifies if the performer is domiciled, resident or has a right of abode in Hong Kong or elsewhere.
Three sets of performer's rights
The non-economic rights require consent to make the first fixation of a live performance or to communicate it live, subject to a private use exception, and reach those who use or deal with fixations made without consent if they know or have reason to believe it.
The economic rights control reproduction, distribution, making available and rental of a fixation made with consent, and can be assigned in signed writing. Performers also have moral rights to be identified and to object to derogatory treatment of live aural or recorded performances.
Rights last fifty years from the performance or its release.
Civil remedies and interim orders
Infringement is actionable by the copyright owner, and the lecture lists damages, injunctions, an account of profits, delivery up and disposal of infringing copies.
Hong Kong cases in the course materials add the interim orders: a final injunction is prima facie available once infringement is shown, a disclosure order can require an innocent party mixed up in wrongdoing to identify wrongdoers, and a search order needs a very strong case, very serious damage and a real risk that evidence will be destroyed.
Criminal liability
Prosecution offers publicity and deterrence.
Section 118 makes it an offence, without licence, to make copies that infringe, for selling or hiring out, import or export them other than for private use, deal in them in business, or distribute them to an extent that prejudices the owner, and s120 covers making them abroad for export to Hong Kong. HKSAR v Chan Nai Ming treated sharing digital files through BitTorrent as distribution.
What this chapter covers
- 01
What counts as a qualifying performance
- 02
Consent rights over first fixation
- 03
Economic rights in fixations made with consent
- 04
Performers' moral rights
- 05
Duration under s214
- 06
Civil remedies and interim orders
- 07
Criminal offences under ss118 to 120
Worked example · free
Match each party to a performer's right
- 4Confirm the performance qualifies and identify the fan's infringements.
- 4Assess the radio station's position, including the identification right.
Key terms
- Fixation
- The recording of a performance in a form from which it can be reproduced; the first fixation of a live performance needs the performer's consent.
- Search Order
- An order permitting entry and search of premises to preserve evidence of infringement, granted only on a very strong case and a real risk of destruction.
- Disclosure Order
- An order requiring a party innocently mixed up in wrongdoing to disclose information that identifies the wrongdoer, on cogent evidence and never for fishing.
- Account Of Profits
- A civil remedy that makes the infringer hand over the profits made from the infringement, as an alternative to damages.
- Delivery Up
- An order that infringing copies be handed over to the copyright owner.
- Commercial Scale
- The qualifier, alongside wilfulness, that TRIPS Article 61 attaches to the criminal procedures members must provide.
Performers' Rights, Remedies and Enforcement FAQ
Do performers in Hong Kong own copyright in their performances?
Not copyright as such. Part 3 of the Copyright Ordinance gives performers related rights: consent over the first recording and live communication of their performances, economic rights over authorised recordings, and moral rights to be identified and to object to derogatory treatment of their performances.
How long do performers' rights last?
Fifty years, counted from the close of the year of the performance or, where a recording of it is released inside that period, from the close of the year of release. A release counts only if it was authorised, so an unauthorised publication does not start the clock.
Can sharing files online without payment be a crime in Hong Kong?
Yes, in some cases. Most offences need a trade or business element, but distributing infringing copies otherwise than for trade to an extent that prejudices the owner is an offence, and HKSAR v Chan Nai Ming treated sharing files through BitTorrent as distribution.
What is the difference between damages and an account of profits?
Damages compensate the owner for the loss the infringement caused, while an account of profits strips the infringer of the profit it made. The lecture lists them among the civil remedies alongside injunctions, delivery up and disposal of infringing copies, and the owner normally has to choose which financial remedy to pursue.
Exam move
Separate this chapter into two lists: who can sue for what, and what a court or prosecutor can order. Learn the performer's rights by the question of consent, and the remedies by the stage of the dispute at which each one is sought. In a problem, the stage usually tells you which remedy to discuss first.
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