Concept and Significance of the Right of Performance
Das Right of Performance is a central exploitation right under copyright law, granting the author of a work the exclusive right to make their work accessible to the public by so-called “direct performance.” It plays a particularly important role in works of music, literature, performing arts, as well as in cinematographic works and similar types of works.
In Germany, the right of performance is primarily governed by the Copyright Act (UrhG) and is subject to strict requirements and regulations. It protects both the personal interests of the author in their work, as well as their economic interests in exploiting it.
Legal Foundations of the Right of Performance
Right of Performance in the Copyright Act
According to Section 19(2) of the UrhG, the right of performance comprises the exclusive right to make a work perceptible to the public through personal presentation. This applies to numerous types of works, including literary works, musical works, dramatic works, choreographies, and pantomimes. The decisive factor is the immediacy of the performance, which includes live concerts, theatre productions, and readings, as well as other forms of presentation where no physical copies are used.
Distinction from Related Rights
The right of performance differs from other copyright exploitation rights such as the broadcasting right (Section 20 UrhG), the right of making available to the public (Section 19a UrhG), or the reproduction right (Section 16 UrhG). While the right of performance regulates the traditional presentation before a physically present audience, the other rights concern transmissions via radio, the internet, and the production of reproductions.
Requirements and Scope of the Right of Performance
Public Nature of the Performance
A key feature of the right of performance is the public nature of the presentation. A performance is deemed public if it is made accessible to an undefined group of people that can be determined by objective criteria. Events within the family circle or the closest group of friends are typically not subject to the right of performance.
Forms of Performance
Typical forms of performance include:
- Theatre performances, plays, operas, musicals
- Musical performances (concerts, music sessions)
- Readings and lectures
- Choreographic productions and pantomime
Performances held during festivals, in schools, clubs, or commercial events may also fall under the right of performance, provided they are public within the meaning of the UrhG.
Right Holders and Transfer of Rights
Author as the Original Rights Holder
The right of performance is reserved to the author as the original rights holder. These are usually authors, composers, lyricists, or set designers.
Transfer and Exercise of the Right of Performance
The right of performance, like other exploitation rights, can be transferred entirely or in part. Rights management by collecting societies such as GEMA (for music) or VG Wort (for literature) is especially relevant. Organizers, theatres, or concert promoters must regularly obtain appropriate licenses or enter into usage agreements for public performances.
Duration and Limitations of the Right of Performance
Term of Protection
The right of performance generally exists as long as copyright in the respective work exists – that is, as a rule, until 70 years after the author’s death (Section 64 UrhG). After the expiry of the term of protection, the work falls into the public domain, at which point the exclusive right of performance also ceases.
Legal Limitations and Exceptions
The Copyright Act provides several exceptions to the right of performance, for example for private performances (Section 53 UrhG), educational use (Section 52 UrhG), or within the context of legally permitted quotations (Section 51 UrhG). There are also remuneration claims and special regulations, e.g. for the blind and visually impaired.
International Context of the Right of Performance
The right of performance is harmonized through numerous international agreements, in particular by the Berne Convention for the Protection of Literary and Artistic Works (BC), the directives of the European Union, and agreements of the World Intellectual Property Organization (WIPO). This ensures that the right of performance also applies across borders.
Infringements and Legal Consequences
Copyright Infringements
Unauthorized public performances constitute a copyright infringement and can give rise to claims for injunctive relief, damages, information, and destruction (Sections 97 et seq. UrhG). Criminal sanctions (Section 106 UrhG) are also possible in cases of intentional infringement.
Enforcement and Exercise
The enforcement of performance rights often takes place through collecting societies, but also through legal proceedings by the rights holders themselves. In the event of infringements, civil law claims may be accompanied by criminal prosecution.
Conclusion
The right of performance is an important protective and exploitation right under copyright law and includes the right to publicly present works in a variety of forms. It protects both the intangible and economic interests of authors and represents a complex interface between artistic freedom, commercial use, and the balancing of social interests. Compliance with the regulations as well as clarification of usage rights are essential for any kind of public performance to avoid infringements and fully protect the rights of authors.
Literature and Further Sources
- Copyright Act (UrhG) – Text of the Law
- GEMA – Society for Musical Performing and Mechanical Reproduction Rights
- Berne Convention for the Protection of Literary and Artistic Works
Frequently Asked Questions
When is a performance permit required for protected works?
A performance permit is always required when a copyrighted work is to be performed or presented publicly. This applies, for example, to plays, films, music, operas, or similar artistic performances. Copyright grants the right holder the exclusive right to perform the work publicly or to permit such use. Public performances are generally deemed to take place if they occur outside a private or close family environment. For any use beyond this, prior consent of the rights holder or a collecting society (such as GEMA for musical works) must be obtained. Without such permission, civil claims for injunction and damages may arise, as well as, in certain cases, criminal penalties.
Which works are subject to the right of performance?
The right of performance applies to all copyrighted works, in particular to literary works (plays, literature), musical works (compositions, songs), works of performing art (choreographies, pantomimes), and cinematographic works. Adaptations or arrangements of these works may also only be performed with the consent of the authors, provided the respective protection period has not expired. Once a work becomes public domain – in Germany 70 years after the author’s death – the right of performance for the original work lapses, but not for any new adaptations or certain other performance rights (e.g., to recordings).
What legal consequences face infringements of the right of performance?
In the case of unauthorized public performance of a protected work, severe legal consequences may result. Rights holders can demand that the performance cease and claim damages. In addition, there may be significant criminal and civil claims, for example due to copyright infringement under Sections 97 et seq. UrhG (Copyright Act). Breaches are particularly serious if they are commercial or repeated, which can even result in criminal prosecution. Legal fees, court costs, and in some cases flat contractual penalties may also apply.
How does one obtain a performance permit and whom should one contact?
Obtaining a performance permit depends on the work and the rights holder. For many musical works, GEMA (Society for Musical Performing and Mechanical Reproduction Rights) is the main point of contact for licensing. For plays or literary works, direct requests usually need to be made to the publishing house or author. For cinematographic works, there are specialist collecting societies or film distributors who grant performance rights. It is important to scrutinize licence agreements in detail, as they stipulate scope, duration, location, type of performance, and fees.
Must permission be obtained for non-commercial or school performances?
As a rule, the requirement to obtain permission is independent of whether a performance is commercial or non-commercial (e.g., at schools, non-profit associations, or charitable events). Even in a non-commercial context, performing is generally subject to permission, provided the audience is not exclusively private. Depending on the rights holder or collecting society, there may be special rules and sometimes reduced rates for non-profit, educational, or cultural purposes. However, a formal permit must always be obtained that clearly regulates any fees or conditions.
What is meant by a public performance under copyright law?
The term “public performance” is interpreted broadly in the Copyright Act. Public is any presentation intended for a number of people outside the closest family or friends circle. It is sufficient if third parties could have access to the event – regardless of whether they actually participate. As soon as a performance takes place, for example, in club premises, schools, businesses, or public places, this is generally considered a public performance within the meaning of copyright law and requires the rights holder’s consent.
When does the right of performance in a work expire?
The right of performance expires with the end of the copyright protection period. In Germany, this ends 70 years after the author’s death (Section 64 UrhG). After this period, the work becomes public domain and can be performed without a special permit. However, this only applies to the original work; adaptations, translations, or special performance rights to specific versions may still be protected if they constitute independent copyright. Rights to recordings (such as audio or film recordings) may also be subject to separate protection and do not automatically expire at the same time as the copyright in the work itself.
