The Digital Media Project

 

Source

Philip Merrill

Title

TRU #77 to restrict performance

No.

040909merrill01

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/09/09

 

#

Criteria

Description

1.

Name of TRU

TRU to restrict performance

2.

Summary description of TRU

this is traditionally referred to as the right of performance and vests control in the Author over other's use of their work to create performances, recordings or broadcasts bringing the original composition "to life"; there is a tension between this TRU controlling what may be done with works and the TRU performance that will create performances based on these original works

3.

Use records of TRU

This "right" is particularly applicable to owners of intellectual property consisting of literary and artistic works, giving them quasi-sovereignty over the downstream economic uses of their creations. Performers just have to rough it as to when to use these "literary and artistic works" as the basis of their performances, particularly since this can sometimes trigger required payments. Performers generally show some ingenuity in avoiding payment, and IP owners certainly exercise their legal freedoms to try and collect money from performers who are identified as doing well in terms of financial success, giving performances based on material created by someone else.

Although this is a very old right, playwrites must expect to have their work stolen, adapted and parodied, as well as copied onto many private copies that are exchanged and loaned in manuscript of some kind. That is what is traditional. Two months after you open on Broadway, some actor might give an audition with a speech out of your play if it's good.

This is one of a group of secondary rights based on an already fixated literary or artistic work from which derivative copies are made of an inexact kind. This underlying process renders authorial control most difficult, and entails a sort of passed-around afterlife for fixed media that is difficult to regulate or monitor, in which many versions of diverse varieties may have the names of others upon them as owners in some degree. For example owning a piece of fixed media that one has made private remixes of, so that one has intellectual property ownership over the remix.

The performance-related TRUs are presented as a group of templates organised as follows:

  • TRU restrict performance -- controlling what can be done with a work
  • TRU performance -- basing a performance on the work
  • TRU restrict adaptation -- controlling the creation of altered versions of a work
  • TRU adaptation -- making an altered version based on an original work
  • TRU translation -- controlling the creation of translations as well as making translations
  • TRU parody -- escapes authorial control but better be funny

An example might help ilustrate how these performance-related TRUs work together. The "taking liberties" that is quintessentially the performance right is like the liberties musicians might be expected to take, playing music printed on sheet music but still making up passages and phrases as they play. The maker of the sheet music's music would be considered the original creator with the ability to restrict performance. After that -- which is what has traditionally been called the "performance right" -- comes what we are calling "TRU performance" which could more properly be considered the right or usage to give a performance. Whether or not our fictitious musicians riff or scat or take improvised cadenzas, they are going to act like they have the right to perform whether we like it or not. It's their gig. If we try to stop them they will lock us out of their space and do their own thing.

It is worth noting that performing a piece of music to a different tempo or rhythm than the composer intended alters the piece, sometimes in fundamentally important ways.

A particularly improvisational one of these musicians might be prolific at making adaptations, for example creating different words, notes and/or melodies, all fitting within the general form or structure of what was on the sheet music. In analogue law, the main reason the sheet music guy retains a right to restrict adaptation is because lawsuits only happen if that original creator of the music has been ripped off. There is a TRU moral rights aspect too, depending on the type of adaptation, in that the creator of the work that provides the original basis might deserve credit and thanks, as many musicians feel for Duke Ellington, or as many actors are grateful to Shakespeare. As for TRU adaptation, as the right to make adaptations, this covers our creative improviser of derivative works but he might be the only guy in the band who can do this.

Translation of course is clearly distinct because it involves spoken language. But let's imagine our musician's sheet music has a lyric in Spanish. But one of the musician/singers is bilingual with Portuguese and keeps slipping in between the original Spanish and Portuguese, throwing in phrases as well as just a Portuguese word or two. Parody would be if all the other guys in the band made fun of him doing it; parody often has an aspect of "picking on" someone or something.

The point of reviewing all these other TRUs is to emphasise the kind of looseness inherent in the comparison between the inexact copy and the form of the original composition or media. A performance or adaptation is thoroughly a derivative work of some kind; this is very different from annotations or quotations which are essentially analytical. These loose, performance-related TRUs all imply something creative and very protectable. At the same time, as to the boundary between expressions and ideas separating intellectual property one can lay claim to from its underlying building blocks, this line is crossed and again and again when messing around with all of this loose copying. Much of the attraction to perform works by others is that some wonderful, compelling quality of the original work might spark, inspire or otherwise lead to "acting it out" for making some other new use of it. Miracles can happen when messing around with other people's stuff, with expressions and ideas all mixed, derivatively shuffled in with the performer's bravado into a new work of media, potentially a protectable work of intellectual property in itself.

4.

Nature of TRU

WHAT IS A PERFORMANCE?

It seems to be the fate of this word "performance" to serve primarily as either a general term or else as a "laundry list" of particular types of performance that qualify to belong. It is a long list. As quoted by Paul Goldstein at International Copyright section 5.4.I.I.B.i, a House Report leading up to the U.S. 1976 Copyright Act said, "a singer is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set."

It is not possible to reliably generalise as to what exactly "a performance" is in itself, however there is something evident in the character of a performer giving a performance, and so it is easier to think about this TRU in terms of performers. In many ways, this ambiguity surrounding what constitutes a performance has shaped the analogue nature of this TRU, causing it to be managed very differently from literary and artistic works. For example, the Rome Convention Article 3(a) defines performers as "actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works." The performance is strictly considered something other than the work, but its status is troublingly ambiguous.

It is easier to attach or visualise TRU moral rights for performances, in that certainly a performer deserves a credit. In fact, artists who execute versus those who interpretatively perform a work also deserve both moral and economic rights, as is the case with an orchestra conductor or a movie producer, including studio executives. French law makes an interesting distinction between "artiste interprète ou exécutant" separating the interpretive performers per se from the orchestra conductors and movie producers who execute the work (IC, section 5.I.2.I).

The economic rights pertaining to a performance are even hazier, particularly because they vary. In the U.S., which is very slanted towards economic rights, there are trademark, contract and criminal laws that handle most of it except for the nebulous cloud of first amendment free speech, educational uses (see TRU of copying for classroom instruction), journalistic recitation of facts (see TRU of factual reporting), and fair use. Other countries have many more varieties of exceptions and it gets quite complicated for anyone not working in a collecting agency or government bureau according to a particular country's specific legislation. For example patriotic public performances of songs are royalty free in many countries; also this is sometimes confined to patriotic days or celebrations, but sometimes not. Since this immense complexity can only be properly administered by someone knowledgeable, the world has been forced to rely on local agencies, which Goldstein describes as essentially having a "law" all their own. "It is no exaggeration to say that, for each right they administer, these societies have, through their reciprocal relations with counterpart societies throughout the world, created their own private law of copyright relations." (IC, sec. 5.2.2.3)

The international mediation between collecting agencies permits members of a foreign country to be treated the same as members of the country of the local agency. Exchanges such as this can be merely bilateral (a straightforward instance of TRU of reciprocal protection) or can comprise a larger group, for example the Berne Union. Several odd examples can occur and are given at TRU of reciprocal protection.

This is a right very easily taken away by legislation, at least in part, and also potentially subject to compulsory licenses under TRU equitable remuneration. For example, in the U.S., recording artists and record labels do not have a performance right with respect to radio broadcasting. Composers and music publishers do, but artists and labels have not been given symmetrical protection.

STREAM OF ECONOMIC EXPLOITATION

This category of performances, even including other TRUs listed above (e.g., restrict adaptation), is like a stream fed by two springs. First is the traditional exploitation of manuscripts by publishers as well as other secondary uses of "literary and artistic works". One can review the definition of "literary and artistic works" thinking entirely of potential performances, adaptations, translation or parodies that one can imagine might be possible based on: books, pamphlets, lectures, "damatic or dramatico-musical works", music, cinema, drawing, painting, architecture, sculpture, prints, posters, photographs, sketches and topo maps (Berne Article 2). It is truly in the nature of a successful literary or artistic work that it can be performed, adapted, etc.

The other spring feeding the stream of exploitation is new technologies, particularly phonograms and broadcasts, but ultimately any making available by wire or wireless (as in TRU of communication to the public). This has been largely the subject of neighboring rights. "At the same time that philosophies of authorial personality and case law on moral right were forging a doctrine of author's right, technologies were beginning to emerge that would challenge the doctrine's assumptions respecting authorship. Photographs, it might be thought, were the products of a mechanical process, not of an artist's creative vision; motion pictures were the product of corporate organizations, not the labors of individual authors. After some agonizing, civil law countries brought photographs and films within author's right, but they drew the line there and rejected author's right protection for performances, sound recordings or phonograms, and broadcasts. Instead they created for these and other new technological productions a regime of neighboring rights--droits voisins in France, Leistungsschutzrechte in Germany, diritti connessi in Italy." (Goldstein, IC, sec. I.2.2)

TREATIES

The Berne Convention Article II(I) gives this TRU to composers as follows , "Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorizing: (i) the public performance of their works, including such public performance by any means or process; (ii) any communication to the public of the performance of their works." Articles IIbis and IIter extend this to authors for broadcasting, rendering by loudspeaker, and recitation of their literary and artistic works. Article 14 grants related TRUs to relating to movies.

While Berne has been the main treaty for authors, the "Rome Convention" has served as the defining early treaty for performers, also covering phonograms and broadcasts. It is more properly called the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. The Rome Convention was agreed upon in 1961 after work began in 1949 concerning issues such as "remedying the technological displacement of performers" (Goldstein, IC, sec. 2.2.I.I). Rome's solution to most everything is reciprocal protection through national treatment, more or less on the argument that the most protection a performer can hope for is the same protection a country gives to its own nationals. Rome Convention Article 2(I) defines national treatment as that given by a State, "(a) to performers who are its nationals, as regards performances taking place, broadcast, or first fixed, on its territory; (b) to producers of phonograms who are its nationals, as regards phonograms first fixed or first published on its territory; (c) to broadcasting organizations which have their headquarters on its territory, as regards broadcasts transmitted from transmitters situated on its territory."

Rome is in a sense wrapped around Berne, obligated not to take anything away from Berne while adding its own additional protections. These two are then subsequently enveloped or wrapped by provisions of other treaties. In a sense, TRIPs came next, providing for general and generous protection of intellectual property and leading to many instances of powerful local economic legislation protecting the interests of performers, for example U.S. antibootlegging statutes protecting recorded performances (IC, sec. 4.2.3). The newer WIPO treaties (WCT and WPPT), influenced by TRIPs, wrap an additional layer including provisions geared to protecting performances delivered over the Internet, with the WCT modernising Berne, whereas the WPPT modernises the Rome Convention and "provides that its terms shall not impair the contracting parties' existing obligation under the Rome Convention." (IC, sec. 2.2.3)

5.

Benefits of TRU

The general policy behind this is that the author's ownership interest in whether performances are allowed or not benefits society as a whole because it provides creative types with a financial incentive to create. Looked at sideways, it can seem like Authors benefit while all others have to pay royalties.

6.

Possible digital support

Secure printing of sheet music for performers is already widely practiced and the basis of numerous Internet business models. There are also multi-user licenses, and it is easy to imagine DMP enabling all group members with IED devices to access the relevant sheet (to perform from) on their personal devices, perhaps adjusted for their individual instrument.

There is room to create new categories of "performances" in the digital space. Although this might seem to call for caution, it may equally be true that the concept of performances is more than flexible enough to accommodate DMP's needs. It is interesting to imagine an ISP being in the "executive artist" role for sponsored content directed to the ISP's subscribers; the spectrum of Service Provider types is generally conducive to being bandleaders who assemble programming packages. It should also be possible for a High School student to do this in their spare time, assembling playlists of multiple content for others to enjoy and possibly pay for.

7.

Requirements

Protocols for users to save their work should allow both saving as a completely original work and also saving as a work with some derivative originality, for example a performance. Metadata for human-readable fields such as names are required by TRU moral rights. In this sense, the file/bitstream must have "identity", that being a composite (metadata assemblage) of multiple ID material, as well as user declarations of IP ownership, conforming overall to some sort of information representation model.

8. References