Protection of acting and performing artists’ rights

A cura dell’Avv. Giovanni Bonomo

Ultima revisione (a cura della redazione): 3 gennaio 2014

1. With Legislative Decree n. 68 of 9 Aprile 2003, turned into law on 29 April, lawmaker incorporated the provisions by Article 30 of the 2001 Community law (law of 1 March 2002, n. 39), regarding implementation of Directive 2001/29/CE on harmonizing some aspects of authorship rights and of relative rights in the ambit of the information society.

It was in fact necessary, given the ongoing evolution in the field of digital technologies, to adjust, while rendering coherent, relative legislation to the new utilities offered by modern information society [1].

Among the legal adjustments introduced by the mentioned Legislative Decree 68/2003 into the basic legal structure constituted by law n. 633 of 22 April 1941 – via addition and coordination of the five previous laws governing relative authorship rights [2] – is the protection afforded to “acting and performing artists“, according to the new expression introduced in the same headed Paragraph III, Title II of the law (Art. 80 – 85-quinquies), starting with the heading re-titled “Rights of acting and performing artists“.

Said individuals were already almost completely protected by Legislative Decree n. 685 of 16 November 1994, although there remained insufficiencies and conceptual gray areas already noticed by the doctrine and then by the community lawmaker, which called for a “higher level of protection[3].

Legislative Decree 68/2003 introduced important definitions relative to rights recognized to authors, clarifying their scope, and extending them to artists and performers. To be noticed, first of all, are the new definitions included in the phrase “reproduction, communication, or made available to the public” with the relative “exceptions and limitations“.

2. According to the new formulation of Art. 80, comma 1 contains the following defining norm:

Considered to be acting and performing artists are: actors, singers, musicians, dancers, and other persons who perform, sing, act, recite, or in any way perform intellectual works, should this be protected or of public domain“.

The definition is completed with Art. 82, in as much as it is extended, to the effects of the preceding provisions, to those who, in a theatrical or musical work, have a role of considerable artistic importance, even if as co-starring performing artists; to orchestra conductors and the chorus; to orchestral or coral groups that perform a work having artistic value, and not of simple accompaniment.

The present definition of the above-mentioned norms remains identical to that formerly in effect, as provided for by Legislative Decree 685/1994; instead, as regards paragraph 2 of Art. 80, attention is drawn to the list of acting and performing artists’ rights, with such modifications as introduced by Legislative Decree 68/2003, which is here quoted and highlighted as follows.

Acting and performing artists have, regardless of payment due them for their live performances, the exclusive right [4] to:

– authorize recordings of artistic performances;

– authorize the replication of said recordings, whether direct or indirect, temporary or permanent, in whatever manner or form, either entirely or in part;

– authorize communicating with the public, in whatever manner or form, including making available to the public one’s own artistic performances in such a way that anyone can have access to them from individually selected times and places; said performances, furthermore, may be broadcast via airwaves and satellite communications systems (unless said performances are delivered on the basis of broadcasting aims or are already the object of a recordings utilized for their broadcasting). If the recording consists of a phonographic support, or is utilized in terms of financial gain, the fee is to be acknowledged as per Art. 73. Should there be no finalities of financial gain, then a fair compensation is to be paid to the artist as per art. 73-bis;

– authorize public availability of the recordings of the artist’s own artistic performances, and relative replications in such a way that any person can have access to them from individually selected times and places;

– authorize the distribution of the recordings and of their performances;

– authorize the hiring or loan of recordings of their artistic replications. Even in case the artist has ceded, to a producer of phonograms, or of audiovisual material, his right to authorize hiring, he still has the right to an equitable remuneration for the hiring procedures worked out by the producer with third parties;

– authorize rebroadcasting via cable, according to Art. 85-bis, of broadcasts; said authorization can be granted via contract among parties having authorship rights, parties having related rights, and cable-distributors (art. 110-bis).

There is added a third and final comma to art. 80, which specifies that communication rights to the public are not exhausted as the result of any act of communication, even if they should be made available to the public.

The rationale of the law lies in the consideration that the artist has to be protected in the event – which then becomes a certainty with the duplication possibilities offered by the new digital technologies – of his performance constituting an object of further economic utilization not covered by contract, or not in compliance with contractual conditions.

Artistic performance, in as much recorded on some material support that enables it to be diffused and duplicated, becomes the object of unlimited fruition by a broader audience with respect to that having immediate and direct fruition. Thus, an artist’s work becomes under-remunerated, and any intermediary seeing to its diffusion, would be unfairly appropriating an added value offered by the duplication of that artistic performance.

Hence the need to assure not a mere compensation right on behalf of the acting or performing artist, but, and more justly, an exclusive right authorizing recordings and duplications of one’s own performance.

Said exclusive right, which is manifest in the above mentioned cases of possible preemptive authorizations, is absolute and enforceable erga omnes, but to be exercised in primis against any employer wanting to exploit the artistic performance beyond the limits of the object itself, and of contract finalities.

As regards hiring, recording, duplication, radio-diffusion and distribution rights, art. 84, in its unchanged formulation [5], mitigates art. 80, paragraph 2, lett. f), specifying that, except for diverse willingness by the parties, said rights are presumed to be yielded at the same time that a contract is drawn up for the production of a cinematic or audiovisual work, or sequence of moving images.

Said provision resolves incongruities and potential conflicts with authors participating in the negotiations with cultural and performance agencies because of preceding legislative innovations that failed to discriminate between rights of authors and rights of artists in terms of certain utilizations (and which compelled the authors and companies assignees to carefully provide for the rights of the artists entrusted with the interpretation or performance of the protected works), thus reestablishing a balance in favour of the authors and of the free circulation of their works, which was implicit in the traditional principles underlying the 1941 law

Legislative Decree 68/2003 does not affect this provision, which has been in effect since 1997, thus implicitly acknowledging that any diverse could only constitute an impediment to the circulation of the intellectual property work to the detriment of the reasons of performance, art, and culture.

Moreover, the law nevertheless acknowledges the right of acting or performing artists, who have played a part of considerable artistic importance, to equitable compensation, which is both mandatory and inalienable, as recompense for further economic utilizations of the artistic performance in question, to be borne by the broadcasting bodies (art. 84, paragraph 2).

But, also for any utilization of cinematic, or similar, works, different from that provided for by paragraph 2 of art. 80, lett. f), the acting or performing artist is entitled in any case to an equitable compensation, by those exercising exploitation rights, for each distinct utilization (art. 84, paragraph 3).

It is to be noted that assumption of cession has been expressed with regard to the production of a cinematic, or audiovisual, work, or sequence of moving images, whereas, in terms of equitable compensation, reference is made only to the cinematic work, or its similar.

It would therefore appear that the acting or performing artist is not entitled to an equitable compensation for audiovisual works, or moving image sequences, that are different from cinematic or similar works. In response to this possible interpretation, and consequent disparity from a remunerative standpoint, the new Legislative Decree 68/2003 could have added some clarifying modifications.

The presumption of cession of economic utilization rights to the producer of cinematic or proximate works, also justifies what is established in previously mentioned art. 80, paragraph 2, at the letter f), on preservation of the acting or performing artist’s right to equitable compensation in the case of cession of economic utilization rights to the producer of phonograms or cinematic, or audiovisual works, or of moving image sequences, under penalty of voidance of any other different agreed provision.

In said case, not only the actors, and those performing a role of considerable importance, but also singers, dancers, and musicians, are entitled to equitable remuneration.

Lastly, the norm states that the amount of remuneration is to be agreed between the IMAIE (Mutualistic Institute for Acting and Performing Artists) and the competent trade-union associations of the confederation of industrialists; in case of failure to reach an agreement, compensation is established following the procedure as specified by art. 4 of deputy legislative decree of 20 July 1945, n. 440 [6].

3. Besides property rights, acting and performing artists are also entitled to the moral right pertaining to works acted or performed – and within the precise purview of personal and imprescriptable rights – to oppose any public communication, or duplication of their performance, representation, or execution, should they be prejudicial to their honour or reputation (art. 81).

Limitation to honor and reputation rights, without considering that of respect for the complete and decorous execution of the artistic performance, is justified in light of the need not to jeopardize the rights and interests of the author in terms of reproducing and diffusing the work (the latter author still clearly having the power to activate full and complete protection of his moral rights).

Formulation of art. 85, as to the duration of property rights to which acting and performing artists are entitled, which was previously set at 50 years, similarly remains unvaried [7].

Art. 83, instead, has been partially modified to include additions consequent upon the new concepts of “public communication” and of “support“: the provision now states that artists performing lead roles in a work, or in a theatrical, literary, or musical composition, have the right to have their names included in public acknowledgements of their performance, execution, or representation, and to the permanent appearance of the same on “supports” containing relative recordings, such as phonograms, videograms, or cinematic films.

Said right extends therefore also to any possible reproduction of the work in digital format, and on any type of support.

4. The matter of the so called equitable compensation for the private duplication of phonograms and videograms for personal use warrants special mention, as art. 9 of the Legislative Decree, bearing on this matter, has substituted paragraph V of title I of Law 633/1941 governing authorship rights (and originally including articles 65 through 71), with present paragraph V, including articles 65 through 71-decies.

Of this renewed Capo V, the new Section II, entitled “Private Duplication for personal use” includes the new articles from 71-sexies through 71-octies. Reference to acting and performing artists, as beneficiaries of equitable compensation in addition to other parties, is contained in art. 71-septies.

The provision defines said compensation as a “share on the price” paid by the final purchaser to the seller “for equipment exclusively geared to analogical or digital recording of phonograms or videograms“, or by a “sum commensurate with recording capacity” for audio and video-recording supports “such as analogical supports, digital supports, fixed or transferable memories geared to the recording of phonograms or videograms“.

The second comma refers to a special ministerial decree on Cultural Assets and Activities, after having consulted those associations that best represent the producers concerned, and on determination of compensation, whereas the third comma specifies such parties as are held to effect payment.

However, art. 39 of Legislative Decree 68/2003, as transitory and final norm, already sets the amounts of compensation valid up to 31 December 2005, and, at any rate, until issuance of the ministerial decree, for recording equipment and supports, distinguishing, among the latter, between dedicated and non-dedicated digital supports, and also between analogical supports, and providing a Euro-cent criterion to be multiplied by the number of recording hours.

A clear explanation of the difference between a “dedicated” and “non-dedicated” support may be found in the report illustrating the legislative decree in question, which also specifies the lawmaker’s intention of aligning, via said transitory norm, the compensation-gauging criteria to be applied to “virgin” supports and to recording equipment (previously provided for by law n 93 of 5 February 1992), with those in effect in the major European countries.

Basically, dedicated supports are those that are exclusively destined to sound, or videographic recordings; whereas non-dedicated supports (CD-Roms, data, and CD-RW data) are those destined to the recording of data in general (texts, sounds, fixed or moving images, etc.).

Extending compensation to the category of acting and performing artists is not thought to contribute to increasing consumer costs with respect to the law previously in effect, which is substituted, in terms of the same wage-measuring criteria, thanks to an effort geared to harmonizing community transactions.

According to the report, the advantage to the consumer – the beneficiary of the exemption norm on private use – nevertheless continues to be considerable, even after the compensation increase, compared with the current price of phonographic and videlographic products.

Giovanni Bonomo
Attorney at law in Milan

Footnotes

[1] Said need is expressed in the same directive that, at the considerando n. 5, affirms the need, stemming from the multiplication and diversification of creation vehicles, and of production and exploitation of intellectual property, to “adopt and incorporate present laws governing authorship rights and related rights so as to adequately respond to economic realities, such as the new forms of exploitation.

[2] Herein are chronologically listed, starting from the most recent, preceding laws governing this matter: Law of 18 August 2000, n. 248, New Norms protecting authorship rights; Legislative Decree of 26 May 1907, n. 154, Implementation of EU directive 93/98/, concerning harmonization of protection duration of authorship rights and of some related rights; Legislative Decree of 23 October 1996, n. 581, Implementation of EU directive 93/83/ governing coordination of laws bearing on authorship rights and related rights, applicable to radio-broadcasting and cable re-broadcasting; Legislative Decree of 16 November 1994, n. 685, Implementation of EU directive 92/100, concerning leasing rights, loan rights, and some rights related to authorship rights in the area of intellectual property; Law of 5 February 1992, n. 93, Norms in favour of phonografic companies and compensations for private non-profit duplications.

[3] At the considerando n. 9, the cited directive states that “Any harmonization of authorship rights and of related rights, should begin from a high level of protection, since said rights are essential from the standpoint of intellectual creation. Their protection contributes to the safeguarding and development of creativity in the interest of authors, actors and performers, producers and consumers, and also of culture, of industry, and of the overall public. Thus, it has been acknowledged that intellectual property constitutes an integral part of property rights.

[4] In this case, however, highlighting does not imply any substantial modification, but only a nominal change effected by the lawmaker, which does not alter the concept in substance with respect to the preceding expression: “exclusive power” Instead, it is important to stress that as per the law previously in effect as to Legislative Decree 685/1994, acting artists and performers had no exclusive right, or power, to authorize their performance or execution, as their property protection was limited to the acknowledgement of the right to receive compensation for non-authorized utilizations. Starting in 1961, with the Rome International Convention on protection of acting artists and performers, of producers of phonograms and of radio-broadcasting agencies, known as “Rome Convention on rights related to authorship rights“, the right was granted by art. 7 to acting artists and performers to be able to oppose any recording, without their consent, of any live performance on any material support; the radio broadcasting or public communication of their artistic performance (unless it was specially prepared for radio-broadcasting, or for public communication); the duplication of recorded artistic performances, in case the original recording was effected without their consent, or the duplication was effected for purposes other than those for which the recording was orginally authorized.
Problems linked to coordinating art. 80, l.d.a., which was then in effect, and art. 7 of the Rome Convention, were solved by EU directive 92/100 of 19 November 1992, governing leasing rights, loan rights, and some rights related to authorship rights in the area of intellectual property, which committed the EU member states to recognizing the rights of acting artists and performers to “authorize or deny” the hiring or lending of recordings of their artistic performances, their direct or indirect reproduction, their radio-broadcasting, etc.; and the 1994 Legislative Decree n. 685 governing implementation of the directive, applied the provisions as per the previously in effect (with respect to the latest Legislative Decree, n. 68 of 2003) formulation of art. 80, which acknowledges for the first time a real and absolute protection afforded erga omnes to acting artists and performers (“exclusive authorization power“). Therefore, from an initial credit right to that of equitable compensation what has been reached is an exclusive and absolute right that is manifested in the power to authorize, and not simply to interdict (“creating obstacles“).

[5] Introduced by Legislative Decree of 26 May 1997, n. 154, art. 12, which is not affected by Legislative Decree 68/2003.

[6] Art. 3 of law n. 93 of 5 February 1992, Norms in favor of phonographic companies and compensations for private non-profit duplications, established the right to compensation stemming from the sale of “virgin” audio tapes, and art. 4 of the same law constituted (recte: recognized) the I.M.A.I.E.: “The IMAIE is made up by the trade union organizations that are primarily representative nationwide of the categories of acting artists, executors and signatories of national collective bargaining contracts, having as its statutory objective that of protecting the rights of acting artists and performers, and also activities of defense and promotion of the collective interests of these categories“. Actually, the IMAIE, at the time of its “constitution” had already been in existence for almost fifteen years (since 16 September 1977), as a non-certified association, constituted by the same parties, and having finalities analogous to those now provided for by the law. This, then, was the legal recognition of a body that, in practice, was already in existence, more than an actual constitution.

[7] Even before the present formulation, which has remained unvaried, and established by art. 13 of Legislative Decree of 26 May 1997, n. 154, the duration of rights was set at 50 days by the law of 6 February 1996, n. 52, art. 17.

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