9 - Performers' rights  pp. 338-364

Performers' rights

By Pascal Kamina

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Introduction

The protection of performances is an area in which the law and practice in the European Union has undergone major changes in the last twenty years. This evolution led to a situation in which performers are granted a level of protection which, in most countries, is close to the protection granted to authors (subject to a shorter term, to different rules on transfers and remuneration and to the absence of moral rights in some jurisdictions). The economic and practical significance of these changes is enormous. In most European Union Member States not only has contractual practice had to be adjusted to take into account the new rights, but the entire rights clearance system had to be changed under the influence of emerging collecting societies or of performers' unions with increased bargaining powers. In order to understand fully this change, it is necessary to describe briefly the evolution of protection before European harmonisation in this field took place.

The situation in the European Union before harmonisation

The development of mechanical reproduction of sounds and of cinematography at the beginning of twentieth century prompted the introduction in several European countries of legislation to counter the unauthorised fixation of performances. In the UK, the Dramatic and Musical Performers' Protection Act 1925 established criminal sanctions to prevent the act of bootlegging, i.e. recording without authorisation the live performances of artists, and subsequent acts of dealing with such illicit recordings.