Performing right

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In copyright law, the right of performance refers to the author's exclusive right to decide whether and how to perform his work. It belongs to the bundle of exploitation rights that an author is exclusively entitled to. A performing right is recognized in the vast majority of countries in the world, but remains unmentioned in the copyright laws of some countries because it is seen as part of a broader (reproduction) right. Under convention law, the right to perform is provided for in all central international copyright agreements.

overview

According to general understanding, a “performance” is the representation of a work in a non-representational form, either directly by a person (e.g. an actor or a musician) or by means of a mechanical process by which the representation of the work is made perceptible. The performance is differentiated from the reproduction, in which the making perceptible is effected by the production of a physical copy. Their distinguishing feature with regard to other forms of intangible reproduction, such as broadcasting ( broadcasting right ) and transmission via the Internet, is that the performance takes place in the direct presence of a public or directly at a location accessible to the public, so that no additional transmission channel is required. In the reality of national legal systems and international copyright regulations, the definitions vary in detail. For example, on the one hand - as in German law - performances are delimited from lectures, i.e. the reading out of a poem is not assigned to performance, but to a separate performance right. In contrast, other legal systems - for example the British - would also subsume the last-mentioned acts of use under the term performance.

The right to perform was recognized early on in most national legal systems, but followed the protection against reproduction and reprinting for literary works. This chronology can also be traced back to the bilateral copyright treaties of the 19th century: They usually only related to reproduction or reprinting rights and only rarely contained (also) regulations on performance rights. In 1886, the Bern Convention (BÜ) initially only provided that national equality should apply to the performance of dramatic and dramatic-musical works as well as certain musical works. Nationals of other signatory states to the Berne Convention were therefore to be granted the same protection that was granted to nationals - whether such protection even existed, however, was left to the national legislature. In the Berlin version (1908) there was still no general right to perform. The concerns of the member states were based not least on the increasing power gain of collecting societies ; some states that wanted to counteract their monopoly tendencies at the national level by legislative means feared that their scope for such measures could be restricted by a binding general performance right.

A general right of performance only found its way into the Bern Agreement with the Brussels revision (1948). Art. 11 para. 1 RBÜ [Brussels version] granted authors of dramatic, dramatic-musical and musical works the exclusive right to allow their works to be performed in public. The regulation has remained essentially unchanged since then. The performance of language works - the so-called lecture - has also enjoyed protection since the Brussels version (Art. 11 ter RBC). The “distinction that seems quite artificial to the legal layperson” (Nordemann / Vinck / Hertin) is based on the fact that the right to perform in relation to the right to perform dramatic / musical works was a “latecomer” in most countries; This can also be attributed to the fact that the lecture, unlike the performance, has not yet found any expression in the original version of the agreement.

Germany

The German Copyright Act (UrhG) recognizes the right to perform as one of the rights to which the author is exclusively entitled to his work ( Section 15 (2) No. 1 UrhG). It is defined in Section 19 (2) UrhG as follows:

The right to perform is the right to publicly make a work of music heard through personal performance or to present a work publicly on stage.

literature

  • Isabella Alexander: 'Neither Bolt nor Chain, Iron Safe nor Private Watchman, Can Prevent the Theft of Words': The Birth of the Performing Right in Britain . In: Ronan Deazley, Martin Kretschmer, Lionel Bently (Eds.): Privilege and Property: Essays on the History of Copyright . Open Book Publishers, Cambridge 2010, ISBN 978-1-906924-19-5 , pp. 321-346 .
  • Gustav Bock: The right to perform dramatic and musical works . Heymanns, Berlin 1907.
  • Hermann Rüfenacht : The right to perform musical works according to Swiss legislation and the international treaties, as well as de lege ferenda . In: Negotiations of the Swiss Lawyers' Association . 1898, p. 1-109 .
  • Elmar Wadle : The Prussian Copyright Act of 1837 as reflected in its prehistory . In: Robert Dittrich (Ed.): Where does copyright come from and where does it go? Roots, historical origin, intellectual historical background and future of copyright law . Manz, Vienna 1988, ISBN 3-214-07705-8 , pp. 55-98 .
  • Elmar Wadle: The beginnings of the right to perform in Prussia and in the German Confederation . In: Günther Hönn, Horst Konzen, Peter Kreutz (eds.): Festschrift for Alfons Kraft on his 70th birthday . Luchterhand, Neuwied 1998, ISBN 3-472-03617-6 , p. 645-663 .
  • Sebastian Wündisch: The fairy tale of the New York Grail Robbery - Aspects of the international protection of performance rights in the 19th and early 20th centuries . In: Intellectual Property and Copyright Law, International Section . tape 56 , no. 4 , 2007, p. 302-308 .

Remarks

  1. ↑ Ricketson / Ginsburg, International Copyright and Neighboring Rights , Vol. 1, 2nd ed. 2005, § 12.04.
  2. ^ Von Lewinski, International Copyright Law and Policy , 2008, § 5.137. See also perform, v. in Oxford English Dictionary (online edition), March 2017, Oxford University Press, accessed June 10, 2017 (not freely accessible): “ To present (a play, ballet, opera, etc.) on stage or to an audience; to play or sing (a piece of music) for an audience. ”
  3. ↑ Ungern-Sternberg in Schricker / Loewenheim, copyright , 5th edition 2017, § 19 marginal no. 18, 27.
  4. ↑ Davies / Caddick / Harbottle, Copinger and Skone James on Copyright , Vol. 1, 17th ed. 2016, §§ 12–21 ff.
  5. ^ Ricketson / Ginsburg, International Copyright and Neighboring Rights , Vol. 1, 2nd ed. 2005, § 12.07.
  6. ↑ Bock, The right to perform in dramatic and musical works , 1907, op.cit., P. 13.
  7. ^ Von Lewinski, International Copyright Law and Policy , 2008, § 2.08.
  8. ↑ Ricketson / Ginsburg, International Copyright and Neighboring Rights , Vol. 1, 2nd ed. 2005, § 12.07 (however, with reference to the fact that the founding members of the Bern Union all provided, at least in principle, appropriate protection, which, however, by varying degrees Exceptions was limited).
  9. ↑ This was only introduced for two special cases. In addition Ricketson / Ginsburg, International Copyright and Neighboring Rights , Vol. 1, 2nd ed. 2005, § 12.08.
  10. ^ Ricketson / Ginsburg, International Copyright and Neighboring Rights , Vol. 1, 2nd edition 2005, § 12.09.
  11. ^ Ricketson / Ginsburg, International Copyright and Neighboring Rights , Vol. 1, 2nd ed. 2005, § 12.13.
  12. ^ Ricketson / Ginsburg, International Copyright and Neighboring Rights , Vol. 1, 2nd ed. 2005, § 12.12.
  13. ↑ Nordemann / Vinck / Hertin, International Copyright and Ancillary Copyright Law , 1977, RBÜ Art. 11 Rn. 1.