Copyright

2. Performance Rights?

The Canadian Copyright Act also creates a special class of rights, called "performance rights", in performances, such as, for example, vocal, musical or theatrical performances (as distinguished from the copyrights to the lyrics, score or screenplay of the underlying work being performed). Briefly stated, the performance rights provide to performers, inter alia, the sole right to "fix" their performances (i.e. film, tape or otherwise record same); the sole right to communicate their unfixed performances to the public by telecommunication; and the sole right to rent out a sound recording of the performance.

It will be evident that the performance rights encompass only a small sub-set of the entire bundle of rights which normally arise under copyright. As such, certain rights are available to authors which are, ostensibly, not available to performers, including, inter alia, the sole right of reproduction; the sole right to present in public; and the sole right to communicate to the public by telecommunication. However, it should not necessarily be taken from the foregoing that the law intends to extend to authors a greater ambit of protection than performers. Since performances, by their very nature, are transitory, portions of the bundle of rights granted under copyright are inapplicable in the context of performances and performers. For this reason, performers require a different type of protection than do authors. For example, it is obvious that a performer's "performance", per se, cannot be reproduced or presented to the public, except with permission of the performer. While only fixations of the performance might be reproduced and/or publicly presented, the sole right to fix a performance resides with the performer. Accordingly, that performer, indirectly, has the complete ability to control reproduction and public presentation of any fixation in which he is a performer. Thus, no express rights in this regard need be granted to the performer, but arise, pursuant to the Copyright Act. As such, notwithstanding that the bundles of rights respectively granted to authors and performers under the Act are not identical, the legislation meets, arguably, the reasonable needs of each.