'Pretend-y Rights.' On the Insanely Complicated New Regime for Performers' Rights in Australia, and how Australian Performers Lost Out

Kimberlee G. Weatherall, University of Melbourne, Australia

Abstract

From 1 January 2005, over eight years after the WIPO Performances and Phonograms Treaty (WPPT) was concluded, and not far shy of 10 years after performers obtained economic and moral rights in the UK, Australia was finally dragged kicking and screaming to the performers' rights party. Although the issue had long been on the government's copyright agenda, the final impetus for the adoption of performers' moral and economic rights was not a local policy decision but a provision of the Free Trade Agreement between Australia and the United States of America ('AUSFTA'). It is perhaps significant that the aim of promoting performers' interests appears in neither the Explanatory Memorandum nor the Second Reading Speech of the legislation which implemented that treaty. This chapter considers the history of Australia's new performers' rights regime, and examines the rights performers obtained, concluding that performers in fact gained very little. The law stands testament to the absence of a public policy justification, and the unintended consequences that can result from highly specific IP treaty provisions.