Definition
And performance is a term of art from British intellectual property law referring to the statutory right of public performance — distinct from and additional to copyright — held by the author of a dramatic work, opera, or musical composition (or that author's assignee). Under the relevant nineteenth-century Acts, this right gave the rights-holder the exclusive authority to represent the work, or to authorize its representation, at any public venue within the British dominions for the duration of the copyright term. Because the right was legally separate from the underlying copyright, it required independent registration to be enforceable.
The phrase "and performance" signals the legislative addition of a performance right layered on top of the reproduction right that copyright already secured. It is best understood as a precursor to modern performing rights regimes rather than as a standalone doctrine with continuing operative force.
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Common Confusion
The term can mislead researchers accustomed to contract law, where "performance" means the carrying out of a contractual obligation. In the intellectual property context, "and performance" refers instead to the right to publicly perform or stage a work — a right to control others' acts, not an obligation to act oneself. Researchers searching nineteenth-century British materials should not conflate this with contract performance doctrine, and should not assume that copyright registration alone secured the performance right; the historical sources are explicit that separate registration was required.
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Why It Matters in Research
This term appears almost exclusively in materials tracing the development of British performing rights law in the nineteenth century. Researchers will encounter it primarily in digests, treatises, and legal encyclopedias covering the period between approximately 1833 (3 & 4 William IV c. 15) and the later consolidation of copyright and performance rights under the Copyright Act 1911.
Several research traps apply:
First, the dual-registration requirement is a practical trap in historical source reading. Many digests that summarize copyright registration say nothing about the separate requirement for the performance right. A work could be fully registered for copyright purposes and still leave the performance right unprotected if the author failed to register it independently. Historical entries that omit this distinction should be treated with caution.
Second, the right described in these statutes is jurisdictionally bounded to the British dominions. American researchers accustomed to federal copyright frameworks should not assume transatlantic equivalence. Performing rights in the United States developed along a separate statutory and common-law trajectory; searching American materials for "and performance" in this sense will produce little.
Third, the term does not survive as operative legal language in modern intellectual property practice. Contemporary performing rights are governed by statute, collective licensing organizations, and treaty frameworks (notably the Berne Convention and TRIPS) that subsume and transform the earlier regime. A researcher encountering the phrase in a modern context is almost certainly reading a historical analysis, not a live legal standard.
Finally, the corpus connection to contract law performance is a source of search noise. Database searches on "performance" in Law Mind materials will return a large volume of contract doctrine — substantial performance, tender of performance, conditions precedent — that is conceptually unrelated to performing rights. Narrowing searches with "and performance" plus subject markers for intellectual property, drama, or music will help isolate the relevant materials.
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Historical Dictionary Support
Black's Law Dictionary and Rapalje & Lawrence are in agreement on the substantive content: both trace the right to the same two statutes (3 & 4 William IV c. 15 and 5 & 6 Victoria c. 45), both identify the right-holders as the author or assignee, both confirm that the right covers public representation anywhere in the British dominions, and both tie the duration to the copyright term.
Rapalje & Lawrence's entry appears to be corrupted in the surviving text — the passage breaks mid-sentence and introduces language about burden of proof and "the onus of proving" that belongs to an entirely different entry. This is almost certainly a printing or digitization artifact. Researchers relying on Rapalje & Lawrence for this term should treat the fragment with care and cross-check against Black's, which presents the entry cleanly.
Neither dictionary addresses what happened when registration was secured for copyright but not for performance, or what remedies were available for infringement of the performance right alone. Sweet's Law of Copyright, cited by Black's, is the more granular source for those questions.
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Jurisdictional Note
This term is specific to British law and the British dominions as constituted in the nineteenth century. It has no direct American equivalent from the same period, and modern jurisdictions handle performing rights through separate statutory frameworks and collective rights organizations (such as ASCAP, BMI, and PRS) that bear no formal resemblance to the dual-registration regime described here.
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Encyclopedia Cross-Reference
Performance — Duties and Order of Performance (The Law Mind Contracts & Commercial Law Encyclopedia)
Performance — Tender of Performance (The Law Mind Contracts & Commercial Law Encyclopedia)
Performance — Substantial Performance Doctrine (The Law Mind Contracts & Commercial Law Encyclopedia)
Note: The encyclopedia entries above address contract performance doctrine, which is conceptually distinct from the intellectual property performing right described in this entry. They are cross-referenced here because corpus researchers searching "performance" will encounter both bodies of material and should understand the boundary between them.
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