A COMPARATIVE LOOK AT PERFORMERS' RIGHTS PROTECTION IN CANADA, THE UNITED STATES OF AMERICA, THE UNITED KINGDOM, AND THE REPUBCIC OF CHINA (TAIWAN) Tm-Lane Lin A thesis subrnitted to the Faculty of Graduate Studies in partial fulfilment of the requirernents for the degrce of ;Master of Laws Graduate Programme in Law Osgoode Hall Law School York University Toronto, Ontario, Canada National Library Bibliothéque nationale of Canada du Canada Acquisitions and Acquisitions et Bibliographie Sewices senrices bibliographiques 395 Wellingron Street 395, nie Wellington Ottawa ON K 1A ON4 Ottawa ON K 1A ON4 Canada Canada The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or sel1 reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de rnicrofiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts kom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. A Comparative Look at Performers' Righis Protection in Canada. The United States of America, The United Kingdom and the Republic of China (Taiwan) Tm-Lane Lin a thesis submitted to the Faculty of Graduate Studies of York University in partial fulfillment of the requirements for the degree of h4astt.r of Laws O 1998 Permission has been granted to the LBRARY OF YORK UNIVERSITY to lend or seIl copies of this thesis, to the NATIONAL LIBRARY OF CANADA to microfilm this thesis and to lend or seIl copies of the film, and to UNIVERSITY MICROFILMS to publish an abstract of this thesis. The author reserves other publication rights, and neither the thesis nor extensive extracts from it may be printed or otherwise reproduced without the author's written permrssion. Abstract Performers' protection has become acute since the technoIogica1 advancements during the turn of this century. However, the legislation in this am, compared with the other regime of inteliectual propeny, is novel to many counuies. Several questions rernain controversial: (1) whether performers should be granted some rights in their performances; and (2) what scope of such protection would be adequate. In addressing these questions, this thesis examines the two main underlying theories of inteiiectual property: economic incentive theory and natural Iaw theory. A!so, it compares the different legislation modeis adopted by two major copyright systerns: "copyright" and "droit d'auteur". The thesis concludes that a two-sided approach might be a more persuasive way to justfi performers' rights. Currently, the international harrnonization of inteiiectual property laws has ken triggered by the TRIPS Agreement of World Trade Organhtion. For sorne countries where intellectual property has been historically disregardeci, for exarnple, Taiwan, the reform of UiteUrctual property laws is only one of many areas that require transformation. In order to secure the enforcement of law, efforts are required to rehabilitate the legal concepts and notions of inteliectud property. The recent copyight refom in Canada, the United Kingdom, the United States and the Republic of China (Taiwan) show a tendency to strengthen the protection for performers. The question remains whether some categories of performers' rights, such as iv the Article 12 rights of the Rome Convention and the rights to receive bhnk tapes levy, should be administered by performers' collective societies. The weii-developed collective administration of musical performing rights in some countries, such as Canada, provides a good example for the establishment and operation of a performers' collective society. In contrast, where the collective system for musical performance rights has not ken successhiiiy created (as in Taiwan), the issue of performers' nghts administration sho uld be considered before the making of legislation. Acknowledgments 1 would iike to thank my thesis supervisor. Professor Toni Williams, for her helpful çomments and suggestions. 1 am also grateful for the vaiuablr advice provided by Pro fessor Joyce Co hnstaed t and Professor Paul Tackaberry. Without their assistance. t his thesis would not have been reaiized. A special debt of gratitude to Professor David Vaver. who provided immeasurable guidance during the early stages of the project, to Albert Wailrap. who provided editorial assistance, and to Lea Dooley, who provided administrative assistance throughout the graduate experience. 1 dedicate this thesis to my parents. They support and encourage me always. TABLE OF CONTENTS Abstract i v Chapter 1: Introduction 1 Chapter 2: Justification of Performers' Rights 14 1. The Underlying Theories of Intellectual Property A. Economic Incentive Theories B. Natural Law Theories C. The Third Approach II. Justifjing Perfomrrs' Rights 30 III. Performen' Riçhts - Grneral Concepts of Copyright A. Originality B. Fixation C. Moral Rights D. Perfomers' Rights and Authors' Rights Chapter 3: International Protection of Performen' Rights 48 1. The International Convention of Performen, Producers of Phonograms 48 and Broadcasting Organizations - The Rome Convention 196 1 A. Historical Background 48 B. The Basic Principles of the Rome Convention 53 II. The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) 60 A. Introduction 60 B. Performers' Rights Provisions 62 m.The WIPO Performances and Phonograms Treaty A. Introduction B. Performers' Rights Provisions Chapter 4: Perforrners' Kights Protection in Canada, 7 1 the United States of Arnerica, and the United Kingdom 1. Performers' Rights in Canada A. Performers Rights Protection Before 1994 E. Copyright Act Amendment in 1994 C. The Copyright Act Amendment in 1997 II. Pertormers' Rights in the United States of America A. Performers' Rights Protection Before 1976 B. Performers' Rights Protection Under Copyright Act 1976 ( 1 7 U.S.C.) C. The Copyright Act Amendment in 1994 D. The Digital Performing Rights in the Sound Recording Act 1995 III. Performers' Rights in the United Kingdom A. Performers' Rights Protection Before 1988 B. Performers' Rights Protection Under the Copyright, Designs and Patents Act 1988 Chapter 5: Performers' Right3 Protection in the Republic of China (Taiwan) 1. Background to the Copyright Protection in the R.O.C. II. Performers' Rights Protection A. Copyright Law 1985 B. The Copyright Amendment in 1992 C. The Copyright Amendment in 1998 Chapter 6: The Contractual Status of Performers 1. htroduction A. Music Publishing 1 Recording Agreements B. Copyright / Performers' Rights Assignments II. Employment 1 Work-For-Hire Doctrine A. Canada, United Kingdom, and United States B. The Employment Relationship Under the R0.C. Law Ill. Inequality of Barçaining Power - Unconscionability Chrpter 7: Administration of Performers' Rights 1. Introduction: Collective Administration of Creative Rights II. Collective Administration of Performers' Rights A. Collective Administration of Public Performance Rights in Sound Recordings - Article 13 Rights of the Rome Convention B. Blank Tape Levy for Private Home Copying C. Performers as Cornposers / Lyricists D. Performers' Societies III. Specialized Collective Administration Organizations for Performers' Rights A. Mandatory Collectivization in Relation to Performers' Rights B. The Potential for Sprcialized Prrfomers' Rights Collectives Chapter 8: Conclusion Chapter 1 Introduction This thesis addresses two fundamental issues in relation to the legal protection of performers' rights under an intellectual property scheme. The first issue centres on whether a need exists for legislative protection of performers in respect to their performances, and, if so, what should be the fom of legislation. The second issue involves the question of emciency in the administration of performers' rights while srcuring performance interests. Intellrctual property is said to comprise a set of laws which balance the interests of the rights owners and the public.' It deals with questions such as: which activities do we as societies want to reward? And what degree of reward is necessary? Should we also consider the conflict between the protection of individual rights owners and the protection of the public interests? This thesis explores the latter questions against the backdrop of the legal arrangements for perfomers' rights protection in the above mentioned countries. The main focus of the thesis is a comparison of different legal regimes of performers' rights. The thesis also considers theories that purport to explain or to justify the use of intellectual property for the protection of performen. The introduction of the printing press in Europe during the latter half of the ' David Vavw, Inteliechrai Properîy Law (Concord, Ontario: Irwin Law, 1997) at 5. 1 tifteenth crntury opened the way for the recopition of copyright. This tschnological advance tinally separated the identification of a work from its matenality.' At that tirne, the printing press was the only technoloby that involved bringing literary works to the public. When the first copyripht law, the Sraiute ofAnne, emerged in England in 17 10, the main