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A fine performance

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

To his acute embarrassment, the IPKat has only just, and rather belatedly, got round to reviewing the fourth edition of Performers' Rights by Richard Arnold (now Mr Justice Arnold, of the Patents Court for England and Wales). Despite only a four-year gap since the publication of the third edition, this authoritative and comprehensive review of the subject has many new issues to tackle and this task is undertaken with the author's obvious enthusiasm for the subject matter.

A particular joy, purrs the Kat, is the way in which the book not only covers with care every detail of "Part II" of the UK Copyright, Designs and Patents Act 1988 (called, with disarming simplicity, 'Rights in Performances') but also ranges across other related subjects. These include other types of protection from which performers may profit: passing off, privacy, defamation for example. Also discussed are some of the problems arising from performers' contracts. Although he doesn't much like things that bark, the Kat endorses the book's emphasis of the importance of the rule in Barker v Stickney (that an author cannot enforce a right to receive royalties against a third party assignee of a copyright which has been assigned by the author to a publisher and which the publisher then assigns to a third party) and shares the author's surprise that the rule is not better known.

There are a couple of aspects of the book that will not meet with universal approval. The IPKat is well known for his dislike of the reproduction of statutory extracts in an era in which trees are so precious and statutory materials are readily available at no charge on the web. In this case the statutory appendix count is 170 pages, or about 30% of the total. This may well however be the preference of the publisher, who finds it easier to justify a higher price when the book is, er, bigger.

The book also includes six pages of the author's detailed and radical proposals for reform of the present law. As it happens, the Kat disagrees with several of these proposals but their inclusion makes for a more engaging and lively book and is therefore to be welcomed. A further minor niggle is that some complex issues, dealt with carefully in one place in the book, are not always fully cross-referenced. For example, Chapter 5 opens with a good discussion as to whether certain UK exceptions are consistent with European law, but there is no cross-reference to this debate when the specific exceptions concerned (paras 15 and 18 of Schedule 2 CDPA) are discussed later in the same chapter. Someone in a hurry, looking for a specific answer to a specific question, might be caught out by this.

Delivering judgment, the Kat rules that this book is an excellent addition to any practitioner's or academic library. It was also stunningly up-to-date, including references to cases decided almost as the book was going to press. Given that at least two of those cases remain subject to ongoing appeal proceedings (Fisher v Brooker, the "Whiter Shade of Pale" case, is awaiting judgement in the House of Lords and Football Association Premier League Limited and others v QC Leisure, the case concerning smartcards for foreign satellite transmissions, is pending before the European Court of Justice), another edition very soon will doubtless be justified. It would be a shame if we are deprived of this by Richard Arnold's promotion to the bench.

Finally, a challenge for IPKat readers: in the book's useful survey of the social and economic position of performers, which provides the background to the evolution of the legal rights of performers, it is asserted that "the first English actor to achieve social prominence was Henry Irving, knighted in 1895." Do readers agree? If tempted, the Kat might make the case for David Garrick, who died a century or so earlier, after suffering a fit or stroke while the guest of Lord Spencer at Althorp, was the first actor to be buried in Poet's Corner at Westminster Abbey and whose grand house on the River Thames at Hampton still survives - although Garrick might be disqualified on the grounds that he was feted as a theatre manager as much as he was as an actor. Any other candidates?

Bibliographic details: Performers' Rights, Richard Arnold, 4th Edition (published 31 December 2008), hardback £175.00. Sweet & Maxwell, ISBN 978-1-84703-787-9. Rupture factor: moderate-to-low. Getting-nicked-off-the-desk by-colleagues factor: dangerously high. Website here.

Full post as published by IPKat on July 15, 2009 (boomark / email).