Fixation of the performance without the performer's authorization will infringe the copyright. However, the questions follow: shall those unauthorized phonograms totally be discarded? Who can use them, and in what extent?
Easy124, a reader of this blog, sent me some provisions in Canadian Copyright Act. Among them, Section 15 (1) (b) noted that a performer has a copyright to:
... reproduce any fixation that was made without the performer’s authorization.
According to this provision, the unauthorized phonograms can be utilized (at least in terms of reproduction) by the performer. Obviously, this is not an "author's right", while it is distinct to traditional so-called "related right" in the Civil Law System. The object of reproduction is unauthorized phonogram, which is originally produced not by the subject of reproduction but an infringer. Without further research, I cannot provide the Canadian legislator's initial aim of granting performers this right. But I'd applause this arrangement because it saved a good many of records of the live culture. Nowadays, the recording facilities are more and more afordable by ordinary people. Many memorable moments may be recorded by layman who may not be authorized by the performer. This provision provide those recordings opportunities to be legally reproduced.
There are more questions should be answered: who is the exact owner of these unauthorized fixation of the performance? In our Civil Law System logic, what kind of right should this reproduction belong to? When they are reproduced by the performer, can the copies be distributed by the performer? If distributed, should the unauthorized phonogramers share the possible incomes? I cannot discuss these here for the time. But they do worth to be think again.