Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:10215 |
| Date | January 2011 |
| Creators | Wagenaar, Tanya |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, LLM |
| Format | x, 239 leaves, pdf |
| Rights | Nelson Mandela Metropolitan University |
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