Commentary on provisions of Act Section 5: Performers’ rights
Section 5 amends the Copyright, Designs and Patents Act 1988 (the "CDPA") to extend the eligibility criteria by which performers can qualify for rights in their performances in the UK.
	Section 5(1) amends Part 2 of the CDPA by substituting section 181 and amending section 206, as set out in section 5(2) and 5(3) respectively.
	Section 5(2) substitutes section 181 (qualifying performances) of the CDPA and sets out what a "qualifying performance" is for the purposes of qualifying for rights in performances under UK law. Section 181 as amended provides that a performance is a qualifying performance if it meets any of the four specified conditions (Conditions A to D) set out in new subsections 181(2) to 181(7). Conditions A and B replicate the bases for protection in pre-existing law. Conditions C and D go beyond the effect of pre-existing law and expand the bases on which a performance can qualify for rights in UK law. The following sub-paragraphs deal with section 181 as amended.
Subsection 181(2) sets out Condition A and provides that a performance is a qualifying performance if it is given by a qualifying individual. The meaning of a "qualifying individual" is set out in the CDPA under section 206(1).
Subsection 181(3) sets out Condition B and provides that a performance is a qualifying performance if it takes place in a qualifying country. The meaning of a "qualifying country" for the purpose of Part 2 of the CDPA is set out in section 206(1).
Subsection 181(4) sets out Condition C and provides that a performance is a qualifying performance if it is included in a sound recording, and either the producer of that sound recording meets certain criteria as set out in subsection 181(4)(a), or the sound recording is either first published in a qualifying country, or published in a qualifying country within 30 days of the original publication. Subsection 181(5) provides for when Condition C will be considered to have not been met. The term "producer" used in Condition C in subsection 181(4)(a) is defined in subsection 181(7).
Subsection 181(6) sets out Condition D which provides that a performance is a qualifying performance where the performance has not been included in a sound recording, the performance has been broadcast and the broadcast is made from a qualifying country, or the headquarters of the broadcasting organisation are situated in a qualifying country.
	Section 5(3) amends section 206(4) of the CDPA to insert new paragraph (za) in subsection (4). It allows for the making of an Order in Council to make provision for specific restrictions to be applied in relation to rights afforded to performances as a result of qualifying for protection by virtue of meeting Condition C or Condition D in section 5(2).
	Section 5(4) provides that the provisions in section 5(2) apply to performances which have taken place before, on or after the Act comes into force.
	Sections 5(5) and 5(6) provide that any rights that arise as a result of these amendments are not to be regarded as infringed or affected by: any act done before the coming into force of the section; or any act done on or after the coming into force of the section, if the act done on or after the coming into force of the section was in pursuance of arrangements made before that date, except where those arrangements are an agreement that attempts to exclude or restrict a right or to prevent a person from questioning such a right or to restrict the powers of the Copyright Tribunal in relation to such a right which Part 2 of the CDPA provides cannot be excluded or restricted or prevented by agreement.
	Section 5(7) provides that the amendments made by section 5(3) enable an Order in Council made under new paragraph (za) of section 206(4) of the CDPA to apply to performances taking place before, on or after the date on which the Order in Council comes into force or the Act comes into force.
	Section 5(8) provides definitions relevant to section 5.