Wednesday, 5th September, 2018

New Zealand Copyright Act review: International copyright treaties and performers' rights

There are many international treaties (or ‘conventions’) governing copyright law worldwide. They set out the minimum rights each signatory country must provide and require that each signatory provide the same protection to authors and other creators from the other countries as they do for their own citizens.

The oldest treaty is the Berne Convention, which was adopted in 1886. It has been revised over the years, the last revision being in 1971. It covers literary, dramatic, artistic, and musical works. The Rome Convention 1961 deals with copyright protection for performers, phonogram (recording) companies and broadcasting organisations. An upsurge in record piracy in the 1960s led to a more detailed treaty for phonogram producers in 1971 – the Geneva Convention.

The more recent major copyright treaties are the World Trade Organisation Trade Related Intellectual Property Rights (TRIPs) Agreement 1994 and the World Intellectual Property Organisation’s two so-called Internet Treaties, namely the Copyright Treaty 1996 (or WCT) and the Performers and Phonograms Treaty 1996 (WPPT). The WCT was intended to bring the Berne Convention into the digital world and clearly has relevance to the current Copyright Act review.

Unfortunately, New Zealand does not have a good history in adopting new copyright treaties or even keeping up with revisions of the Berne Convention. It has not fully implemented the Rome Convention, WCT or the WPPT provisions. This has disadvantaged not only corporate players, but also many individuals. By way of example, consider the music recording industry, where everything starts with singers and musicians – the ‘performers’. The WPPT, improving on the Rome Convention, not only better protected recording companies against piracy, but also provided new rights for performers. WPPT provides that performers (as well as ‘producers of phonograms’) shall have the right to receive remuneration for the broadcasting or communication of their recordings to the public. This includes session musicians as well as ‘featured artists’.

While there are some ‘voluntary’ industry agreements in New Zealand to give performers some of the royalties paid to record companies by broadcasters, these arrangements do not apply to overseas performers. There are no reciprocal agreements providing New Zealand performers with a share of fees paid by overseas broadcasters either. Updating New Zealand’s Copyright Act to include the currently omitted WPPT provisions for the benefit of performers clearly should be an issue considered in the upcoming review.

If the review does recommend that performers’ remuneration rights should be addressed, the old-fashioned approach of simply adopting UK law would be grossly unsatisfactory in today’s digital world. This is because section 182D(1) of the UK Copyright Act 1988 is limited to providing performers with equitable remuneration for recordings ‘communicated to the public’ otherwise than by internet transmissions comprising online downloads and streaming. While the exclusion of online downloads (being equivalent to the purchase of a physical record or disk) is understandable, the exclusion of reception by online streaming is not. Streaming is directly analogous to a radio broadcast, albeit a more sophisticated version delivered via the internet.