1. Residuals

As I indicated above residuals are payments made by the producer or distributor of the film to the performer for the exploitation of the film in which they appear.

Under the creative commons licence these payments are put at risk.

It may be the view of some that where the licence is restricted to non-commercial uses performers concerns in this regard would not be valid.  However, the non-commercial licence expressly permits program swapping as within its terms.  Currently, under residuals agreements fair market value for such swapping would need to be acknowledged and residual based on this amount.  The swapping exemption would permit swapping which is already undertaken between public broadcasters (which is regularly undertaken) to occur without compensation to the performer.

2. Non-agreed uses

The creative commons licence will permit use of the performers performance in an end product not known to or agreed by the performer.  Even in the case of the non-commercial licence this could include for example use in an advertisement for the Federal Government’s industrial relations reforms or for the ACTU’s campaign against the reforms as the definition of commercial only requires that the undertaking is “primarily for commercial advantage” and not that commercial advantage may be a consequence of such use.

3. No credit

While the creative commons licence does require a credit be given to the “author” of the work no such credit is required for the performer whose image is actually used.

4. Manipulation of performance

This concern relates broadly to all those issues such as dubbing and doubling and which have the potential to have the performer portrayed in a negative light.  While the creative commons licence protects the “author” of the work from manipulation of the work that would be prejudicial to the author’s honour or reputation the performer is not similarly protected in the licence.

The performer would not be in a position to object to the attaching of a donkey’s body to their head or the revoicing of their performance with entirely different dialogue intending to ridicule the performer.

To be frank, the creative commons licence seeks to trample all over the rights of performers in ways which the big US studios, who are supposedly the very thing which the creative commons is set up in opposition to, would no longer even dream to do.  The phrase “copyleft” therefore in the view of the Alliance sits uncomfortably with the potential outcomes from the creative commons approach as they would be visited upon performers.

But I don’t think it is the intention of the creative commons to trample on rights.    And indeed, as I understand it, in those countries where performers are afforded moral rights and copyright by legislation such rights are honoured in the creative commons licence.