Equitable Remuneration Rights under the Copyright, Designs and Patents Act

Performers are conferred with two rights to equitable remuneration under the Copyright, Designs and Patents Act 1988.

In the context of Part II of the Copyright, Designs and Patents Act, equitable remuneration is a payment or series of payments made to performers for reproduction of work in which they performed. The payments may be made as a lump sum. A payment for this reason alone will not be considered inadequate: s 191H(4). Equitable remuneration is usually paid on a per use basis and payments are periodic. The alternative, a single lump sum payment may not account for the extent of use in the market, where it is not known what the extent of the exploitation will be in the future.

Sound Recordings

The first instance of the right to equitable remuneration takes place when a sound recording is played in public or is communicated to the public otherwise than by an electronic transmission. The sounding recording must commercially published and provided what is known as a ‘substantial part’ is reproduced the right accrues: s182D. The equitable remuneration is payable by the owner of copyright in the sound recording and may not be excluded from operation by contract.

The right to payment may not be assigned to any third party other than a collecting society. A collection society has power to collect remuneration on behalf of the performer or by operation of law, such as under a will the rights owner entering bankruptcy.

If the amount of equitable remuneration to be paid cannot be agreed between the parties, the Copyright Tribunal has jurisdiction to order the remuneration payable on an application by the person entitled to the payment. In addition, the Copyright Tribunal may also vary the terms and conditions of a licensing agreement reached by the parties or made by an order from the Tribunal.

When performer’s rights subsist in a sound recording that is played in public or communicated to the public (other than by electronic transmission, as distinguished from a broadcast), the performer is entitled to equitable remuneration from the owner of the copyright in the sound recording: s 182D. Such instances may include where the sound recording is played in a restaurant, television or radio commercial.

The copyright owner rather than owner of the performer’s rights or recording right is liable to pay the equitable remuneration.

Equitable Remuneration and the Rental Right

The second right conferred under the Act arises when the rental right in a film or sound recording is assigned to a producer, whether under a contract or pursuant to the operation of section 191F: Copyright, Designs and Patents Act.

Under s 191G, the right to equitable remuneration applies to both sound recordings and film. As with the public performances and communications to the public, the right to remuneration may not be assigned other than to a collecting society or by operation of law, and the parties may not contract out of the entitlement of the performer to equitable remuneration.

The Copyright Tribunal is empowered to determine the sum of equitable remuneration payable to the parties. The performer or the party required to pay equitable remuneration may make an application for a determination, taking into account the importance of the contribution of the performer to the film or sound recording. The remuneration is payable by the person entitled, or in control of the rental rights.

The Role of Collection Societies

Collection Societies are organisations that receive assignments of copyright works, performers’ rights and recording rights, licence their use on behalf of rights owners and distribute royalty payments by user to rights owners.

Acting as a central repository of works, the collective licensing system simplifies the management and licensing of copyright works in the UK and worldwide. Collection societies categorise works and charge tariffs based on the exploitation of the work. Different types of use attract different level of tariff.

A user is required to make payments depending on the extent of the use made of works controlled by the collection society, which are passed from the society to the rights owners.

The Performing Right Society Ltd licenses the performing and broadcast rights in music and lyrics, with the Mechanical-Copyright Protection Society Ltd administering the reproduction rights for music and lyrics, thus licensing the production of music and lyrics on CS, tapes, and DVDs.

Phonographic Performance Ltd is the collection society for sound recordings and administer the performance, broadcast and cable diffusion rights.