Neighbouring Rights: Protecting The Life Of The Party

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 Neighbouring Rights: 

Protecting The Life Of The Party

Aliyah Clarke

 LLB LEC


People attend parties and events to be entertained, to experience something that will arouse their interests and keep them occupied. One way to make it memorable, fun and successful is to have live entertainment, showcasing music, dance or theatre. Performers give life to the literary and artistic works created by authors. The authors of these works are protected by copyright. But what about the performance itself? Are performers not deserving of similar protection as authors? 


A performance involves significant creative effort and technical skills but it is still not technically compatible with the traditional notion of copyright authorship and, as such, does not necessarily fit well within the purview of and qualify for copyright protection. All hope is not lost however. It was felt that these works, because of their nature, were still deserving of some form of protection against commercial exploitation by third parties and the need for strengthened protection against certain acts of unfair competition. The solution was to give the creators of these works the ability to enjoy a right neighbouring to copyright.

Neighbouring rights, also referred to as related rights, were developed by the intellectual property system to ensure that persons who are “auxiliaries” to the creation and/or production of copyrighted works can have more control over their creative endeavours.[1] This right is recognized by international treaty law[2] as well as by national law. Part V of the Copyright Act of Trinidad and Tobago, Chapter 82:80 (hereinafter referred to as “the Act”) sets out the law relating to neighbouring rights. Section 20 of the Act provides that neighbouring rights are property rights which subsist in performances, sound recordings and broadcasts. As such, these rights were primarily created for three categories of people. They are: performing artists, producers of sound recordings and radio and television broadcasters. 

 

Rights of Performers

It may be difficult for younger generations to imagine that there was a time in human history where the internet, social media and smartphones did not exist. People stored memories solely using their eyes and ears. Performances could not be captured and fixed on a recording nor be reproduced nor electronically transmitted to the public. This presented an opportunity for performers to monetize the viewing of their performances, for example, by selling tickets for entrance into a venue. 


In modern society, however, this reality has dramatically changed and it is now possible to give a performance permanence. With greater user generated content flooding the internet, this can yield undesired results for performers. Recording technologies enable bootlegging to thrive. If there are hundreds of unauthorized uploads of a live performance, this can deter the public from purchasing concert tickets and instead generate large revenue for websites that facilitate the questionable user generated content. Performers have become vulnerable to unauthorized exploitation by third parties who can easily record, reproduce, and broadcast their performances.[3]


Under the protection offered by the Act, a performer can claim ownership over their original works and prevent third parties from using their works without their permission. Performers have the right to do, authorize or prohibit the fixation (recording), broadcasting, communication to the public, rental, and the reproduction of fixations of their performances.[4] This helps to guarantee adequate control over and remuneration for the exploitation of recordings of their performances.

 

Rights of Producers of Sound Recordings

No one wants to attend a party that is lifeless and boring. People want to get on their feet and have a good time. The perfect tool to make this happen is music, one of the most important prerequisites for dancing. While the average party goer may not be concerned with dissecting a song to identify all the separate parts which make it whole, it is important for musicians to be aware of all the possible streams of income they can earn from their music. 

When a song is recorded, you may be creating two works that are protected by copyright: a musical work and a sound recording. These works are subject to different rules and may be owned and licensed separately. The owner of the sound recording is referred to as the producer and this is the person or entity entitled to neighbouring rights every time the song is played, for example, on the radio, television, or at a public performance.[5]


Producers of sound recordings utilize their financial, creative and organizational resources to make recorded sounds available to the public. Their rights are recognized because of their legitimate interests in having access to the necessary legal resources to take action against unauthorized use. They have the right to do, authorize or prohibit the reproduction, importation, rental and distribution of their sound recordings[6] and a right to equitable remuneration for the broadcasting and communication to the public.[7]

 

Rights of Broadcasting Organizations 

In this digital age, broadcasting media may seem ‘old school’ but it is still one of the most efficient and the quickest ways to disseminate information to the public. For example, its role as an essential service became prevalent during the COVID 19 pandemic when most people were locked away in their homes and unable to gather at events. We relied on broadcasting organizations, not only as a primary source to receive critical information, but also to provide us with entertainment by broadcasting live “at home concerts” put on by performing artists.

Broadcasting organizations are legally obligated to ensure that they have first obtained the permission of the copyright holder before broadcasting their work.[8] When this permission is obtained and the work is broadcasted, the organization will be the original owner of the neighbouring right in this broadcast and entitled to the associated legal rights. They have the exclusive right to do, authorise or prohibit any of the rebroadcasting, communication to the public, fixation of and reproduction of its broadcast.[9]


Their rights are justified because they input significant financial and organizational resources to facilitate the dissemination of creative content to the general public. Similar to producers, they have a legitimate interest in having the legal resources that are necessary to initiate an action against any person, entity or similar organization for unauthorized transmission and retransmission of their broadcasted programs.

 

In conclusion, it is the creative and technical intervention of performers, music producers and broadcasters that give life to literary, musical, dramatic and choreographic works. They hold great value as they are the ones who help the creators of literary and artistic works communicate their work to the public. Neighbouring rights reward the creative efforts of their right holders by affording them legal safeguards against exploitation and this incentivizes further creation and production. If we continue to respect and protect them and their work, the party will never end. 


*Author can be contacted at aliyahfclarke@gmail.com 

[1] “Understanding Copyright and Related Rights” (World Intellectual Property Organization 2016) <https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf> accessed January 5, 2022 

[2] See the Rome Convention, 1961 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations

 

[3] Herman Cohen Jehoram, 'The Nature of Neighboring Rights of Performing Artists, Phonogram Producers and Broadcasting Organizations' (1990) 15 Colum-VLA JL & Arts 75, pg 77 

[4] Section 21, Copyright Act of Trinidad and Tobago, Chapter 82:80

[5] Gauberti A, “Neighbouring Rights in the Digital Era: How the Music Industry Can Cash In” (LexisNexis® Legal Newsroom 2015) <https://www.lexisnexis.com/legalnewsroom/intellectual-property/b/copyright-trademark-law-blog/posts/neighbouring-rights-in-the-digital-era-how-the-music-industry-can-cash-in> accessed January 5, 2022 

[6] Section 22, Copyright Act TT 

[7] Section 23, Copyright Act TT 

[8] Section 8(1)(i), Copyright Act TT

[9] Section 24, Copyright Act TT 


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