 MORAL RIGHTS OF PERFORMERS

30. In the memorandum for the first session of the Committee, the International Bureau noted that the Rome Convention did not provide moral rights for performers. It was also noted, however, that the manipulation of recorded performances made possible by digital technology might amount to distortion, mutilation or other modification of such performance in a way that it would be prejudicial to the honor or reputation of the performers, and that certain other techniques, such as dubbing (that is, adding sounds to images, sounds that might also be different from the sounds originally fixed along with the images) and play-back (that is, imitation, by the same performer,, or by a different performer, of a performance previously fixed in a phonogram, with the simultaneous performance of the phonogram) might have the same effect. Furthermore, it was stated that performers deserved a right to claim that they were the performers of their performances, provided that the exercise of the right was subject to a consideration of reasonableness, for example, that the name of an individual performer--or in case of a performance by several performers (such as an orchestra), the name jointly used, the name of the artistic leader, and the names of the main performers--would be indicated as far as was practicable under the given circumstances.

31, The International Bureau proposed that the possible instrument provide that performers, independently of their economic rights, and even when they are no longer the beneficiaries of such rights, have the right to claim that they are the performers of their performances (the right of paternity), and the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, their performances that would be prejudicial to their honor or reputation (the right of integrity). In respect of the right to be named as the performer, the International Bureau proposed that, as far as, practicable, the following name or names be indicated on copies of fixed performances, and in connection with all public uses of unfixed and fixed performances: in the case of the individual performer, his name; in the case of a performance by several performers (for example, an orchestra), the name jointly used by the performers (for example, the name of the orchestra), the name of the artistic leader of the performers (for example, the conductor), and the names of the featured performers (for example, the soloists).

32. There was general support in the Committee for inclusion of provisions on moral rights in the possible new instrument. However, it was suggested that the obligations be worded more generally. In respect of the relationship between the moral right of integrity and the economic right of adaptation, it was pointed out that the modification of performances was becoming increasingly common with the advent of digital technology; it was said that not all modifications to, or adaptations of, performances should be considered "derogatory" within the meaning of the right of integrity, and that the exercise of economic rights in respect of digital modifications of performances might become an important source of income to performers, Thus, it was suggested that a limitation based on practicability should apply to the right of integrity as well as to the right of paternity. Opinions were divided in respect of the term of protection of moral rights, and three possibilities were mentioned, namely, a term identical with the term of protection of the economic rights, the lifetime of the performer, and a term without limitation.

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33. On the basis of the Committee's discussion, it seems appropriate that provisions on the moral rights of performers be included in the possible instrument. It seems also that such provisions should be phrased in general terms, which would allow each State party to the instrument to implement moral rights protection for performers based on its own legal traditions and with due regard to the requirements of the cultural industries in its national territory. Furthermore, it seems necessary to take into account that for performers and performances it is more difficult to identify those cases where a modification or other derogatory action prejudices honor or reputation than for authors and literary and artistic works. It should also be taken into account that, in the case of performances, parody is a much more widespread phenomenon than in the case of literary and artistic works, and that restricting the possibility of that form of free expression would be undesirable. Therefore, the language proposed in paragraph 35(a), below, is different from the language used in Article 6bis of the Berne Convention; it is intended to cover only the obviously serious cases where the application of such a right is clearly justified.

34. In respect of the term of protection, it seems justified, as in the case of Article 6bis of the Berne Convention, to provide that the moral rights of performers shall last at least as long as the economic rights (see the discussion and proposals under chapter VI, below, in respect of the term of protection of economic rights in phonograms and performances fixed in phonograms). The second sentence of paragraph (2) of Article 6bis contains an exception, allowing certain countries to provide that the term of protection of moral rights may be limited to the life of the author, provided the legislation of such countries so provided at the time of their becoming party to the 1971 Paris Act of the Berne Convention. The interests of performers in respect of moral rights are largely the same as the interests of authors, i.e., the interest in being recognized as the creator and in ensuring the integrity of the work or performance involved. Thus, it seems justified that those countries which limit the moral rights of authors to the lifetime of the author under paragraph (2) of Article 6bis, should be allowed to provide a term of protection for the moral rights of performers that would expire on the death of the performers. It seems, in any case, given the parallel nature of the moral rights of performers and authors, that the term of protection of the moral rights of performers should not be shorter than the term of protection of the moral rights of authors.

35. Accordingly, it is proposed that the instrument provide that performers, independently of their economic rights and even where they are not or are no longer the beneficiaries of such rights, have

(a) the right to claim that they are performers of their performances, including the right that, as far as it is practicable, their names be indicated, in the customary way, on the copies of the fixations of their performances and in connection with any public uses of their performances or fixations thereof; and

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(b) the right to object to any serious distortion, mutilation or other modification of, or other derogatory action in relation to, their performances, that would result in grave prejudice to their honor or reputation.

36. It is also proposed that the instrument provide that the rights granted in accordance with the preceding paragraph shall, after the death of the performer, be maintained at least until the expiration of the economic rights of the performer, and shall, after the death of the performer, be exercisable by the persons or institution authorized by the legislation of the country where protection is claimed. However, those countries which do not provide for the protection of the moral rights of authors after the death of the authors, may provide that the rights set out it the preceding paragraph, after the death of the performer, cease to subsist.