Performers in Australia have no copyright in the audio-visual works in which they perform. Director of Equity Simon Whipp spoke to the Australian Copyright Symposium and called for reform so that the contribution of performers to audio-visual work can be appropriately acknowledged. He also addressed the threats of the so-called “creative commons” licence to performers’ rights. The licence currently allows for the modification, adaptation and reuse of a film without performer consultation or payment.

Simon Whipps full speech to the Australian Copyright Symposium follows.

PERFORMERS AND THE CREATIVE COMMONS

The Media Entertainment and Arts Alliance (formerly Actors Equity) is the professional association and union representing performers in Australia.

Like other professional associations and unions the Alliance has sought to advance the interests of its members and, over the 65 years of its history the Alliance has a proud record of achievement.

But, like any organization, there are arguments yet to be won.

For performers one of these is copyright recognition in the audio-visual productions in which they perform.

Unlike in most European countries, including the UK with whom Australia shares the common law copyright tradition rather than the civil law copyright tradition, and many other countries including Japan, performers in Australia have no copyright in the audio-visual works in which they perform.

This state of affairs is not satisfactory and requires reform so that the contribution of performers to the audio-visual work in which they perform can be appropriately acknowledged.  As some of you may know, there are ongoing efforts at an international level through WIPO for an international treaty on the issue of performers rights in audio-visual production which could address this situation.

Meanwhile, the only right granted to Australian performers under the Copyright Act is to consent or withhold consent to the recording of a performance.

It is in this context therefore that all the negotiations between the Alliance on behalf of performers and producers are undertaken.

So, over the last 30 years or so the Alliance has fought for and won what are basic protections for performers including such rights as:

• The right to not have their performance dubbed in the English language;
• The right to only have their performance used in the one agreed film;
• The right to a credit;
• The right not to have their performance or image associated with any commercial goods or services;
• The right not to have a body double used to replace their performance;
• The right not to have “blooper” or outtake material used;

And the right to additional payments (called residuals) when the film in which they have performed is exploited outside the “primary market” which is the first intended market.  For example in the case of an Australian film the primary market is theatrical release within Australia.

These rights are obtained as a condition of the consent provided to record the performers performance.

These rights have not always been easy to achieve but have been thought necessary by performers.  These rights are not unique to Australia.  Most of our English speaking counterpart countries (Canada, the UK and the USA) and many other countries as well have union agreements which provide equal or in some cases superior protections for the performers in those countries.  Some of these countries, as I indicated above, such as the UK, also have legislated performers rights.