Section 192 of the Copyright Act 1994 provides that an independent tribunal, the Copyright Tribunal, may make an order giving consent to the making of a copy of a recording. In making any order under the Section, the Tribunal must consider a number of matters. These matters include consideration of whether the withholding of consent by the performer relates to the protection of any legitimate interests of the performer and whether payment should be made to the performer.
New Zealand considers that the applicable Rome provision is Article 15.2. This permits limitations in respect to the rights of performers where similar limitations are provided for in respect to copyright. As New Zealand provides for licensing schemes in regard to copyright (Section 153 of the Act refers), Rome Article 15.2 permits similar limitations in respect to performers.
[Follow-up question]
To the extent that compulsory licenses are granted in New Zealand for the reproduction of fixations of live performances or other sound recordings, what criteria are applied to the grant of such licenses and what limitations are incorporated into such licenses? How is the grant of such licenses consistent with TRIPS Article 13?
The making of an order by the Copyright Tribunal requires that the Tribunal has regard to a number of matters before making an order thereby ensuring consistency with TRIPs Article 13. These include the following matters (section 192 of the Act):
- There has been compliance with the serving or publication of notices.
- The performer's reasons for withholding consent do not include the protection of any legitimate interests of the performer.
- The recording from which it is proposed to make a copy was made with the performer's consent and is lawfully in the possession of the person proposing to make the copy.
- The making of a copy of the recording is consistent with the obligations of the parties to the arrangement under which the recording was made or is otherwise consistent with the purposes for which the recording was made.
If an order is made after taking these matters into account and the parties do not agree on payment, then the Tribunal shall make an order as it sees fit.
