Performance right (droit de représentation)

The performance right is the second component of the author’s right of exploitation, alongside the reproduction right. Article L. 122-2 of the French Intellectual Property Code defines it as the communication of the work to the public by any process whatsoever. In EU law it corresponds to the right of communication to the public, including making available on demand, harmonised by Article 3 of Directive 2001/29/EC. It captures the intangible dissemination of the work, whereas reproduction captures its fixation.

The scope of the right

Article L. 122-2 IPC mentions public recitation, lyrical performance, dramatic performance, public presentation, public projection, transmission in a public place of the broadcast work and broadcasting, understood as the dissemination by any telecommunication process of sounds, images, documents, data and messages of any kind. The transmission of a work to a satellite is treated as a performance. The notion now covers streaming, uploading, background music in shops, the broadcasting of programmes in hotel rooms or waiting rooms and retransmission over a network. The public exhibition of a graphic or plastic work is also attached to the performance right by French case law.

The notion of public

Performance presupposes a public, that is, an indeterminate number of potential recipients and a fairly large number of persons, as opposed to the family circle, which Article L. 122-5 IPC removes from the monopoly where the performance is private and free of charge. The Court of Justice of the European Union has built up an extensive body of case law on communication to the public, requiring an act of communication and a public, and asking whether the work is transmitted by a specific technical means or to a new public not taken into account by the author. It holds that a hyperlink to a work freely accessible with the author’s authorisation is not a communication to the public, but that a link to a work posted online unlawfully may be, depending on the knowledge of the person providing the link and the profit-making purpose pursued.

Performance right litigation

Unauthorised performance constitutes infringement. It is proved by an official report, by capture of the streams or by the records of collective management organisations. Online, the place of the act of communication and the public targeted determine the jurisdiction of the courts and the applicable law, and claims against content-sharing platforms have been governed by a specific regime since Directive (EU) 2019/790.

Key points

Any communication of a work to a public, whether direct, broadcast or online, falls within the performance right and requires the authorisation of the author or of a collective management organisation, save for private performance free of charge within the family circle. The notion of communication to the public, which is European in origin, is constantly evolving. Before any dissemination, it should be checked that the authorisations cover the technical means and the public targeted.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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