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28 2000

COPYRIGHT AND RELATED RIGHTS ACT, 2000

PART IV

Performers' Moral Rights

Paternity right.

309. —(1) Subject to the exceptions specified in section 310 , a performer shall, where practicable, have the right to be identified as the performer of his or her performance.

(2) Where a performer uses a pseudonym, initials or other form of identification that form shall be used to identify his or her performance.

(3) The right conferred by this section shall be known and in this Part referred to as the “paternity right”.

Exceptions to paternity right.

310. —(1) The paternity right shall not be infringed by anything done under section 222 , 223(2), 237 or 238.

(2) The paternity right shall not apply in relation to a performance or a recording of a performance made for the purpose of reporting current events.

Integrity right.

311. —(1) Subject to the exceptions specified in section 312 , a performer shall have the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his or her performance or a recording thereof, which would prejudice his or her reputation.

(2) The right conferred by this section shall be known and in this Part referred to as the “integrity right”.

Exceptions to integrity right.

312. —(1) Subject to subsection (2), the integrity right shall not apply in relation to a performance or a recording of a performance made for the purpose of reporting current events.

(2) The integrity right is not infringed by anything done for the purposes of—

(a) avoiding any contravention of civil or criminal law,

(b) complying with a duty imposed by or under an enactment, or

(c) in the case of authorised broadcasters or authorised cable programme service providers, avoiding the inclusion in a programme which is broadcast or included in a cable programme service by those broadcasters or providers, of anything which offends public morality or which is likely to encourage or incite to crime or to lead to public disorder.

(3) Subsection (2) shall not apply unless the performer is identified at the time of the act concerned or has previously been identified in or on recordings of the performance which have been lawfully made available to the public and there is a sufficient disclaimer.

(4) In this Part “sufficient disclaimer”, in relation to an act capable of infringing the integrity right, means a clear and reasonably prominent indication given at the time of the act, or where the performer is then identified, appearing along with the identification, that the recording has been subjected to an action to which the performer has not consented.

Secondary infringement of integrity right: possessing or dealing.

313. —A person infringes the integrity right where he or she—

(a) sells, rents or lends, or offers or exposes for sale, rental or loan,

(b) imports into the State, otherwise than for his or her private and domestic use,

(c) in the course of a business, trade or profession, has in his or her possession, custody or control, or

(d) makes available to the public,

a recording of a performance which has, and which he or she knows or has reason to believe has, been subjected to any distortion, mutilation or other modification or other derogatory action within the meaning of section 311 .

False attribution of performances.

314. —(1) A person has the right not to have a performance falsely attributed to him or her as performer.

(2) The right conferred by subsection (1) is infringed by a person where he or she—

(a) sells, rents or lends, or offers or exposes for sale, rental or loan,

(b) imports into the State, otherwise than for his or her private and domestic use,

(c) in the course of a business, trade or profession, has in his or her possession, custody or control, or

(d) makes available to the public,

a recording of a performance, in or on which there is a false attribution, knowing or having reason to believe that the attribution is false.

(3) The right conferred by subsection (1) is infringed by a person where he or she—

(a) sells, rents or lends, or offers or exposes for sale, rental or loan,

(b) imports into the State, otherwise than for his or her private and domestic use,

(c) in the course of a business, trade or profession, has in his or her possession, custody or control, or

(d) makes available to the public,

a recording of a performance which has been altered as being a recording of the unaltered performance, knowing or having reason to believe that the recording has been altered.

(4) In this Part, “attribution”, in relation to a performance, means a statement, express or implied, as to who is the performer.

Duration of moral rights.

315. —The rights conferred by this Part shall expire 50 years from the end of the calendar year in which—

(a) the performance takes place, or

(b) where within that period a recording of the performance is lawfully made available to the public, that recording is first so lawfully made available to the public.

Waiver of rights.

316. —(1) Subject to subsection (3), any of the rights conferred by this Part may be waived.

(2) A waiver made under this section shall be in writing and signed by the person waiving the right.

(3) A waiver made under subsection (1)

(a) may relate to a specific performance or a recording thereof, to performances or recordings thereof of a specified description or to performances or recordings there of generally, and may relate to existing or future performances or recordings thereof, and

(b) may be conditional or unconditional, and may be expressed to be subject to revocation,

and where a waiver is made in favour of the owner or prospective owner of the rights in the performance or recording thereof, or performances or recordings thereof, to which it relates, that waiver shall be presumed to extend to his or her licensees, successors in title or other persons, claiming under them unless a contrary intention is expressed.

(4) Nothing in this Part shall be construed as excluding the operation of the general law of contract or estoppel in relation to an informal waiver or other transaction in relation to any of the rights referred to in subsection (1).

(5) It shall not be an infringement of any of the rights conferred by this Part for a person to undertake any act where the person entitled to the right conferred by this Part has consented to the use of those rights by that other person.

Performers' moral rights not assignable or alienable.

317. —The rights conferred by this Part shall be incapable of assignment or alienation.

Transmission of moral rights on death.

318. —(1) On the death of a person entitled to the paternity right or the integrity right—

(a) the right passes by testamentary disposition to such person as the person entitled to the right may direct,

(b) where there is no direction as to whom the right passes but the performer's property rights in the recording of the performance concerned forms part of an estate, the right passes to the person to whom the performer's property rights pass, and

(c) where the right does not pass under paragraph (a) or (b), it is exercisable by the personal representatives of the person entitled to the right.

(2) Where a performer's property rights forming part of an estate pass in part to one person and in part to another, so as to apply—

(a) to one or more, but not all, of the acts the rightsowner has the right to authorise or prohibit, or

(b) to part, but not the whole, of the period for which the performer's property rights are to subsist,

any right which passes with the performer's property rights by virtue of subsection (1) is divided accordingly.

(3) Where, under subsection (1), a right becomes exercisable by more than one person—

(a) it may, in the case of the paternity right, be exercised by any of them,

(b) it is, in the case of the integrity right a right exercisable by each of them, and

(c) any waiver of the right under section 316 made by one of them shall not affect the rights of the other persons.

(4) A consent or waiver binds any person to whom a right passes under subsection (1).

(5) An infringement of the right conferred by section 316 in relation to a false attribution of a performance after the death of a person is actionable by the personal representatives of that person.

(6) Any damages recovered by personal representatives under this section in respect of an infringement after a person's death shall devolve as part of the person's estate as if the right of action had subsisted and been vested in that person immediately before his or her death.

Remedies for infringement of moral rights.

319. —(1) An infringement of the rights conferred by section 309 , 311 or 314 is actionable as a breach of statutory duty owed to the person entitled to the right concerned.

(2) A person may apply to the appropriate court for damages or other relief in respect of an infringement of a right conferred by section 309 , 311 or 314.

(3) In proceedings for infringement of the right conferred by section 311 , the appropriate court may grant an injunction prohibiting any act unless a sufficient disclaimer is made, on such terms and in such a manner as is approved of by the court, dissociating the person entitled to the right from the treatment of the performance or of a recording of the performance.