ECONOMIC RIGHTS OF PERFORMERS IN THEIR LIVE PERFORMANCES
37. In the memorandum for the first session of the Committee, the International Bureau described the rights of performers in respect of their unfixed (live) performances, and proposed that such rights be recognized in the possible instrument. Article 7(1)(a) and (b) and Article 2(1) of the Rome Convention establish the protection of performers in respect of their unfixed (live) performances. Article 7(1)(a) and (b) of the Convention provide that "[t]he protection provided for performers by this Convention shall include the possibility of preventing: (a) the broadcasting and the communication to the public, without their consent, of their performance, except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation; (b) the fixation, without their consent, of their unfixed performance"; while under Article 7(2) (1), "[i]f broadcasting was consented to by the performers, it shall be a matter for the domestic law of the Contracting State where protection is claimed to regulate the protection against rebroadcasting [and) fixation for broadcasting purposes."
38. The International Bureau proposed that performers have an exclusive right to authorize--rather than a "right to prevent"--the communication to the public, and the fixation, of their unfixed (live) performances. The International Bureau also referred to the limitations on the rights of broadcasting and recording (reproduction) of works to be broadcast contained in Article 11bis of the Berne Convention, i.e., Article 11bis (2), which allows the application of non-voluntary licenses, and Article 11bis (3), which provides for the possibility of "ephemeral" recording of works to be broadcast. It was stated that it did not seem to be justified, in the case of the economic rights of performers in respect of their unfixed performances, to exceed the limitations allowed in such cases in respect of copyright. Accordingly, it was proposed that the said limitations should apply, mutatis mutandis, to the rights of performers in their unfixed performances.
39. The TRIPS Agreement contains provisions in respect of the rights of performers in their unfixed performances. Specifically, Article 14(1) provides as follows: "In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance.... Performers shall also have the possibility of preventing the following acts when undertaken without their authorization; the broadcasting by wireless means and the communication to the public of their live performance." Under Article 14(6), moreover', "[a]ny Member may, in relation to the rights conferred ... above, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention." It is to be noted, however, that Article 14(1) of the Agreement itself contains a very important limitation, since it grants performers a right of fixation only against a fixation in a phonogram. The TRIPS Agreement does not protect performers against unauthorized fixation of their live performances (bootlegging) if an audiovisual fixation is involved.
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40. Based on the Committee's general support of the aforementioned proposals, it seems appropriate that the possible instrument provide that performers have the right to authorize the broadcasting, the communication to the public and the fixation of their live performances. As is indicated in the discussion the definition of "fixation" in chapter I, above, the proposed right to authorize fixation would extend to the fixation of individual Sounds, whatever their duration, which may be subsequently manipulated and reused commercially in the context of digital sampling or for other purposes. While there was some discussion concerning the possible use of the phrase "to authorize or prohibit" rather than "to authorize" in respect of the rights involved, the latter formulation is retained because the notion of a right to prohibit or prevent is implicit in the notion of a right to authorize.
41. Accordingly, it is proposed that the instrument provide for the exclusive right of performers to authorize.
(a) the broadcasting of their live performances;
(b) the communication to the public of their live performances; and
(c) the fixation of their live performances.
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