A number of US performers’ organisations have lost their challenge to an aspect of the UK’s copyright regime relating to the payment of ‘equitable remuneration’ to performers.

The claim concerned recent changes to the regime for ‘public performance rights’ (PPR), which we previously discussed here. Broadly speaking, the Copyright, Designs and Patents Act 1998 (CDPA) operates so as to provide a performer the right to equitable remuneration from the copyright holder of a sound recording when it is broadcast or played in public. However, this right is qualified in the case of foreign performers so as only to apply where the country of origin of the performance (i.e. the country of nationality of the performer, or (a point which did not feature strongly in the judgment) the country in which the performance took place) provides a reciprocal right to PPR to UK nationals.

The United States only provides PPR for certain digital transmissions of music. Accordingly, applying the principle of ‘material reciprocity’, US performers are only entitled to equitable remuneration for equivalent uses in the UK.

If this background were not complicated enough, matters became more so when, as part of the UK’s accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the CDPA was amended in a way to grant broader PPR to foreign performers. However, following a consultation, the Government decided to restrict the effect of this change by introducing secondary legislation which preserved the policy of material reciprocity. As a result, US performers did not enjoy the broader rights that the initial changes to the CDPA appeared to promise.

This prompted legal action by a variety of unions and rights organisations which collectively represent hundreds of thousands of US performers. They challenged the validity of the secondary legislation – the Copyright and Performances (Application to Other Countries) Amendment) (No.2) Order 2024 – arguing that it is inconsistent with three unincorporated treaties which, they said, essentially provide that foreign performers from treaty states are be treated in the same way as non-foreign performers.

Whilst the challenge related to key parts of the UK’s copyright regime, the case ultimately turned on traditional constitutional principles. In short, the Court explained that the various treaties that the claimants relied upon were not incorporated in English law, and therefore the Court had no jurisdiction to interpret or apply them. Whilst there are rare exceptions to this principle (for example where it is necessary to decide a question of international law in order to determine a question of domestic law), none applied in this case.

Therefore, the claimants’ case was dismissed, and Lord Justice Males neatly summarised the position in law as follows:

“the basic rule is that unincorporated treaties are not part of domestic law and that domestic courts are not competent to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law… a treaty is not part of English law unless and until it has been incorporated into the law by legislation: so far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which is a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant”.

To read the judgment in full, click here.