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Consent and Performance Rights

Protection against having musicians' performance recorded without their consent.

Last updated: 05 November 2020

Consent is usually given through the use of MU Standard Agreements and Consent Forms and the manner in which consent is given is important as it can affect payment for secondary and further uses.

Under current legislation someone only has to 'reasonably believe' that they have a performer's consent. For example, consent could be construed as having been given by the fact that a musician knew the recording was taking place and did nothing to prevent it.

The standard agreement signed by all Approved Contractors states that they must ensure that the consents of performers required by the CDP Act is of the form approved by the Union.  

Further consent is required in writing before a producer, label or broadcaster, can:

  • Reproduce the recording
  • Distribute the recording
  • Rent or lend copies
  • Make available to the public

Performers property rights (and can be assigned) in relation to a recording of a performance:

  • The reproduction right - a performer’s property rights are infringed by any person who, without the performer’s consent, makes a copy of a recording of their performance.
  • The distribution right - a performer’s property rights are infringed by any person who, without the performer’s consent, issues copies to the public of a recording of their performance.
  • The rental and lending right - a performer’s property rights are infringed by any person who, without the performer’s consent, rents or lends copies of a recording of their performance to the public.
  • The making available right - a performer’s property rights are infringed by any person who, without the performer’s consent, makes available a recording of the whole or a substantial part of a performance by electronic transmission in such a way that members of the public may access the recording from a place and at a time chosen by them.

What are performers’ non-property rights?

In short, the rights are:

  • Not to be recorded live (except for private use).
  • Not to be broadcast live.
  • Not to be recorded off a live broadcast (except for private use).
  • The so-called “use it or lose it” right.
  • The right to supplementary annual remuneration.

N.B. Performers’ non-property rights are not assignable.