works or works whose term of copyright protection has expired. In the digital world, the extension of the copyright scope to the mere use of these works,[1] which stems from the enforcement of a very broad exclusive right of digital reproduction, concerns the rights of the authors as well as the rights of performers, recording producers and broadcasters.[2] The rationale for the legal protection of the type of creativity and economic investment which characterise acts of performance, recording and broadcasting of creative works is very similar to that of copyright, from both an economic and moral point of view. According to the basic economics of intellectual property, performances, recordings and broadcasts are non-excludable and non-rival goods (i.e. “public goods”) that are very costly to produce but very cheap to copy and reuse. To avoid underproduction of these goods, a suitable copyright system should seek to foster cultural innovation by providing an incentive (or reward) to performers, recording producers and broadcasters. In addition to that, there is also a moral argument which underlies the protection of performances in all those jurisdictions (mainly civil law jurisdictions) where performers’ rights include moral prerogatives which seek to protect the reputation of performers against prejudicial uses which might call into question their paternity or affect the integrity of their performances.[3]
In European copyright systems, the enforcement of neighbouring rights depends on the enforcement of the author’s rights, in such a way that each act of performance, recording and broadcasting of a work protected by copyright shall be authorized by the copyright owner in
order to be lawful.[4] Before the adoption of Directive 2011/77, the most significant distinction between the exclusive rights of authors and those of performers and record producers was made, at least in the copyright laws of the European Union, by their respective terms of duration: 70 years
- ↑ See Séverine Dusollier, “Technology as an Imperative for Regulating Copyright: From the Public Exploitation to the Private Use of the Work”, European Intellectual Property Review, 27 (2005), 201–04 (p. 201).
- ↑ See articles 1(1), 2, 3(2) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L167/10, 22 June 2001.
- ↑ See for instance articles 81 and 83 of the Italian Copyright Act, i.e. Act n. 633/1941 and later amendments.
- ↑ See article 12 of Directive 2006/115 on the rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version), OJ L 376/28, 27 December 2006 (“Relation between copyright and related rights”): “Protection of copyright-related rights under this Directive shall leave intact and shall in no way affect the protection of copyright”.
