Of the many provisions of the Copyright Modernization Act (Bill C-11) which came into force on November 7, 2012, few have received as little attention as new sections 17.1 and 17.2 of the Copyright Act, which extend "moral rights" to "performers". Indeed, most descriptions of the CMA (even the Library of Parliament’s Legislative Summary of Bill C-11), are relatively generic in their description of the change: "Clause 10 of the bill provides that a performer will enjoy moral rights in his or her performance for the same term as the copyright in that performance, as required by Article 5 of the [WIPO Performances and Phonograms Treaty]". I suspect that the extension of moral rights to "performers" has gone largely unremarked because the realities of commercial deal-making mean that, in practice, in most circumstances (particularly when dealing with commercial-level projects) the moral rights which are being granted to performers will be waived by means of written contracts (e.g., the performer playing an instrument on the recording of a musical composition will in all likelihood be required to waive their moral rights in the performer’s agreement which they are required to sign by the maker of the sound recording). However, it should be noted that not all "performers" will be granted moral rights in their "performances" as a result of the CMA – instead, the extension of moral rights appears to apply only to a subset of performances. Thus, as an analytical matter, before worrying about whether a performer has waived their moral rights, it will be necessary to determine whether they had any moral rights to begin with.
The extension of moral rights under the CMA applies only prospectively: performers will only have moral rights in respect of qualifying performances which take place on or after November 7, 2012. The content of the moral rights accorded to performers in qualifying performances is the same as the moral rights which authors of works enjoy: the rights of attribution and integrity (as described in Section 28.2 of the Copyright Act); they can be waived but not assigned; they subsist for a term equivalent to that of the copyright in the performance (i.e., roughly fifty years from the date of the performance – but for the details see Section 23 of the Copyright Act); and they can be bequeathed by will or other operation of succession law.
What is interesting about the extension of moral rights under the CMA is that it does not apply to all "performances" (I am ignoring for these purposes the various "technical" requirements for copyright subsistence in performances which are set out in Sections 15-23 of the Copyright Act, such as those relating to where the performance took place). Recall that the term "performance" is a defined term under the Copyright Act (the definition is set out in Section 2), and it means
"any acoustic or visual representation of a work, performer’s performance, sound recording or communication signal, including a representation made by means of any mechanical instrument, radio receiving set or television receiving set"
It is also worth recalling that the phrase "performer’s performance" is also defined (again in Section 2), as follows:
“performer’s performance” means any of the following when done by a performer:
(a) a performance of an artistic work, dramatic work or musical work, whether or not the work was previously fixed in any material form, and whether or not the work’s term of copyright protection under this Act has expired,
(b) a recitation or reading of a literary work, whether or not the work’s term of copyright protection under this Act has expired, or
(c) an improvisation of a dramatic work, musical work or literary work, whether or not the improvised work is based on a pre-existing work;
It is critical to note for these purposes that both of the defined terms encompass an enormous range of activity – while it seems that for many people the archetypal performer’s performance is (as used in the example above) a musician performing a musical work, the defined terms encompass activities such as singing, speaking, dancing and miming.
The extension of moral rights in the CMA applies only to a certain subset of performer’s performances – as indicated by Section 17.1 of the Copyright Act moral rights are accorded only to performers who perform:
"a live aural performance or a performance fixed in a sound recording"
That language (taken, it should be noted, almost verbatim from Article 5 of the WPPT) is clearly premised on the "colloquial" nature of "performer’s performances" I noted above: it applies only to performances which result in an aural event occurring (aural: of or relating to the ear or to the sense of hearing) – and so performers of non-aural performances (such as dancers) do not enjoy moral rights in their performances, even post-CMA.
This is, admittedly, an observation of rather narrow application. But on such "trivialities" are lawyer’s insurance premiums founded. Many descriptions of the "extension" of moral rights to "performer’s performances" (including those which have been made by this writer and on this blog) have glossed over the fact that not all performers now enjoy moral rights in their performances – instead, reflecting a structural bias in favour of protecting sound recordings and the various components thereof, only performers whose performances create an acoustic result are treated akin to authors of works and therefore enjoy moral rights in their performances.