Performers’ rights and collective management :

It is worth briefly recalling the typology of the rights that can be granted to performers,  before presenting their possible collective management.

a. The moral right

Like the moral right of authors, it is generally considered that the moral right of performers can not be subject to collective management because this right is directly related to the personality rights of performers.

b. Exclusive rights

b. 1.
Many national laws and certain international normative texts (European Directives, WIPO Treaties of 1996) grant performers a certain number of exclusive rights, either named simply exclusive rights, or rights to authorize or to forbid, or, as under the WIPO Performances and Phonograms Treaty of 1996 (WPPT), exclusive rights to authorize.

The first of these rights generally granted to performers is the right to authorize or not the recording of his performance or right of fixation.

Another essential right granted to performers is the right to authorize or not the reproduction of this fixation (or in other words the recording of his performance).

Performers can also be granted an exclusive right of distribution being the making available to the public of the original or copies of recording realized through sale or other transfer of ownership and a right of rental for the commercial rentalof their recordings.

Performers are also often granted exclusive rights for the broadcasting and communication to the public of their unfixed performances (live performances).

Finally, performers were granted a new type of exclusive right under the WIPO treaty and the European Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society, being the right of making available to the public (article 10 of WPPT for fixed performances on sound media; article 3 of Directive 2001/29/EC). This right concerns situations, within the framework of digital networks, where members of public can access fixed performances through cable or wireless means “from a place and at a time individually chosen by them”.

The nature of this right can be related to the right of communication to the public or to the right of distribution.

b. 2.
Some exclusive rights can be collectively managed.

The specificity of performers' rights (their performance is firstly a live performance) requires distinguishing which exclusive rights can be collectively managed based on the concept of destination (concept familiar to authors' rights).

The performance of a performer will, during its realization, have one principal destination, which can be named “first destination”, and  this performance can subsequently be subject of other uses, called “secondary uses”.

When a musician goes to a recording studio at the request of the record producer, he goes to participate in the recording of a record, or cassette, or, in other terms, of a “commercial phonogram”.

His participation in the recording and his (generally written) agreement to make this recording can be analyzed as the exercise of following rights:

• the right of fixation (he authorizes the sound recording of his performance)
  
• the right of reproduction (he authorizes the making of copies of the initial recording)
  
• the right of distribution (he authorizes the making   available to the public of these copies in commerce)

This constitutes the normal activity of a performer, within the scope of his agreement with the phonographic producer.

In recognition of the work done and the realization of this “first destination”, the performer receives remuneration.

This concept of first destination is already included in article 7, 1, c) ii) of the Rome Convention of 1961 which grants performers an “almost” exclusive right (a faculty to “prevent”) concerning the reproduction without their consent of a fixation of their performance “when the reproduction is made for purposes different from those for which the performers gave their consent”.

Other uses made of this commercial phonogram (a sound track for a film, for an advertisement...) are secondary uses for which a new authorization must be obtained.

b.3.
The performer holds exclusive rights corresponding to  secondary uses of the recording which can be subject of collective management.

Should the commercial phonogram be used in a movie, it will be reproduced for this purpose. This right of reproduction can be exercised by the collective management organisation, on behalf of the performers concerned. The collective management organisation will deliver on their behalf the corresponding authorizations, collect the rights that are owed and distribute them.

The same is true for the rental of these recordings and making them available to the public on demand on networks.

Exclusive rights of reproduction, of rental, of making available, can thus be subject of collective management.

(This applies mutatis mutandis to secondary uses of a recording intended to be included in the soundtrack of a film. If its first destination is the music of a movie, the other uses, called secondary, can be subject of collective management: edition of the music of this film as a commercial phonogram...)

b. 4
If the performer, hired to record a commercial phonogram, is famous, and if his fame gives him the possibility of negotiating with sufficient economic weight, or simply if the producer wants to make sure that he has an exclusive relationship with the performer, then a contract of a particular type is signed between both, commonly called “contract of artist” or more precisely “contract of exclusivity”.

This contract has the following characteristics:

- the performer grants the producer exclusive rights to make recordings for a given period of time, possibly for a determined number of recordings.

- the performer transfers to the producer all - or a substantial part - of his exclusive rights, and in counterpart, the producer grants him a percentage of his earnings from the exploitation of the recording:  the so-called royalties (generally a percentage of the sale price of the recording and if the case arises, and the contract not unbalanced, a percentage of the sums collected by the producer for other uses of the recording).

In such an agreement, the performer will usually transfer to the producer all his rights for the “first destination” of the recording (the commercial phonogram sold to the public) as well as for the “secondary uses” (to add a sound track to a film, to an advertisement...).

It is therefore far more difficult to organize the collective management of these rights, except for limiting, in the interest of the performers, the content of the authorizations given in the contracts of exclusivity with the consent of the producers, or to make a certain number of performers' rights legally unavailable because of their membership to a collective management organisation.

It has to be noted however, that the phonographic and audiovisual industries try hard to make such collective management of exclusive rights impossible:

- either as far as the phonographic industry is concerned, by forcing performers to transfer their rights by contracts, even performers who have not signed any contract of exclusivity and only receive a fee without any royalties,

- or, as far as the audiovisual industry is concerned, by trying to obtain a non rebuttable presumption that performers have transferred their rights to their benefit, making the situation of performers even more difficult.

c. The rights to remuneration

For certain uses or exploitations of performances, the law does not grant performers an exclusive right to authorize, but only a right to remuneration.

The main systems in place are the right to equitable remuneration and the right for private copying.

There is no natural incompatibility between the exclusive right and the right to remuneration and certain laws recognise both rights.

c. 1.
Under article 12 of the Rome Convention of 1961, performers are granted a right to equitable remuneration instead of an exclusive right to authorize.

When a phonogram is published for commercial purposes (see definition article 3 of the Rome Convention) and is broadcast or communicated to the public, performers (and phonograms producers) have a right to an equitable and single remuneration.

In reality, the Rome Convention does not impose such recognition of a right to remuneration for the benefit of performers, because it provides that this right has to be recognized either for performers, or for phonograms producers or for both.

Moreover, the possibility of reservations provided by article 16 of the Rome Convention makes it possible for a State that has ratified the Convention to totally or partially remove this right to remuneration.

The WPPT treaty of 1996 has repeated this solution in its article 15.

Nothing though prevents States that have ratified these conventions, from combining the exercise of the right to equitable remuneration with the existence of an exclusive right, as the right to equitable remuneration constitutes only a minimum guarantee of protection.

It has to be pointed out that the WPPT of 1996 provides, contrary to the Rome Convention of 1961, that such a right must be granted both to performers and phonogram producers. Nevertheless, similar reservations to those provided under the Rome Convention have been maintained, making it possible to ratify the treaty removing totally or partially these provisions.

Article 8.2 of the European Directive 92/100 on rental right and lending right and on certain rights related to copyright contains a similar right. Member States shall provide a right to ensure that a single equitable remuneration is paid by the user for the broadcasting and communication to the public of commercial phonograms and to ensure that this remuneration is shared between the relevant performers and phonogram producers.

Taking into account that:

these uses are massive uses,
these uses concern many users (public places in which music is communicated; discotheques, radios, televisions...),
these uses concern many rightholders,
the remuneration distributed to performers and phonogram producers is “equitable” but also “single”, meaning that it consists only in one payment, that has to be shared between performers and producers,

... this right to remuneration can and has to be subject of collective management, generally carried out in common, in conformity with systems that may vary at national level, by performers and phonographic producers.

Usually, the remuneration is equally shared between performers and phonographic producers (this is disappointingly not imposed under the WPPT and the Directive) and the share is often determined by national law itself.

The collective management organisation can also be entitled by law to collect the rights to remuneration for all performers, even for non-members.

c. 2.
In a certain number of national laws, notably European, systems of remuneration for the copy for private use of phonograms or videograms have been instituted.

The European Directive of 22 May 2001 imposes on Member States, of which the national legislation contains an exception to the reproduction right for private copying, the duty to provide for a “fair compensation" for the benefit of rightholders.

Faced with the impossibility of exercising an exclusive right to authorize the reproduction of phonograms or videograms for private purposes by private individuals, a fee or remuneration can be collected for the manufacturing or importation of blank recording media destined to be used to copy phonograms or videograms, like sound or audiovisual cassettes, minidisks or digital recordable CDs...

In every country where such right has been recognized, the remuneration is distributed at the same time to authors, performers and phonogram or videogram producers.

For the same reasons as those indicated concerning equitable remuneration and notably because this remuneration for private copying has to be paid in a single way for different categories of rightholders, its management can only be collective, by an entity representing these different categories.

The share is calculated according to percentages generally fixed by national law (for example 1/3 authors, 1/3 performers, 1/3 producers or 40% authors, 30% performers, 30% producers...but other possibilities exist).

Advantages of rights to remuneration for performers

The rights to remuneration which by law are shared between different categories of right holders are not transferable, contrary to the exclusive right which is continuously under pressure from the performers' interlocutors (producers and broadcasters who want to obtain the transfer of the performers' rights to their benefit).

Independently from what has been agreed between a performer and producer, the share between both (and also of the author in the case of private copying) must be done as legally provided and can not be contractually modified (notion of public order in certain laws).

This is a very important advantage of the rights of remuneration over exclusive rights.