The Digital Media Project

 

Source

Philip Merrill

Title

TRU #83 of performance

No.

040909merrill02

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/09/09

 

#

Criteria

Description

1.

Name of TRU

TRU of performance

2.

Summary description of TRU

in opposition to the traditional creator's TRU to restrict performance, this TRU refers to the common tendency to stage or broadcast performances of works regardless of whether these are legally authorised; performers acquire a copyright in their performances but not to the prejudice of prior copyrights in the material being performed

3.

Use records of TRU

Although this could be considered a TRU that is comprised of either thieves or licensees, still it has been pointed out that much of the appeal of intellectual creations is how easily they can be used. Should every talent show painstakingly and conscientiously pay collecting societies, not to mention whether summer camps and churches should pay? Well they probably should in some countries but not in other countries. It would be good if the transaction costs could be lowered by DMP IED and IDP efficiencies. It has been ever thus that performances happen. Tunes heard on the radio are sung in front of friends, relatives and school assemblies.

4.

Nature of TRU

In International Copyright, Paul Goldstein warns that it is difficult and delicate to know when a performance qualifies as a protected derivative work. "The more subtle question of where performance leaves off and authorship begins -- when, for example, a conductor's interpretation becomes an arrangement entitled to protection as a derivative work -- requires the most delicate analysis of the copyright and neighboring rights laws of the protecting country." (section 5.I.2.I, emphasis added) Although we have now been warned, it is worth calling attention to the jumble of neighboring rights treatments as constituting the tricky thicket here.

Goldstein also calls attention to the merits of performances as deserving protection. For example, at sec. 5.I.2, "A performance by a leading concert pianist may embody as much, if not more creativity as the trite advertising jingle that qualifies for author's right protection." Although the U.S. handles everything under copyright, many European countries treat literary and artistic works under author's right and treat performances by what are called "neighboring" rights. It is an irony that neighboring rights are often resolved between collecting societies acting as good neighbors, because as further discussed at TRU of reciprocal protection the international "neighbor" one might imagine is in the phrase "neighboring rights" is just an artifact caused by a coincidence of language. Neighboring rights are so-called because this tradition considers the rights of performers to be a neighbor to the more revered author's right.

Performers were given international moral rights of attribution and integrity for "the first time" (IC, sec. 2.2.3) in 1996 under the WIPO Performances and Phonograms Treaty (WPPT) Article 5. What Goldstein refers to, at sec. 5.I.2, as the "second tier of intellectual property protection" varies from country to country and accepts corporate executives or orchestra conductors to varying degrees. Audio recordings and broadcasts in general are lumped with public performances under the Rome Convention, which has many nations agreeing to do their own thing to foreign performers by applying national treatment to them.

* * *

On the one hand, it can be considered that a person with a right to perform presumably has some license or contract if the material they are using was created by someone else. On the other hand, that assumption is not reliably confirmed in the real world. What can be relied on is that people are generally looking for chances to attract money or attention performing other people's material that they don't have to pay for. Indeed, on the nightclub DJ free music scene, artists often encourage influential DJs to play even unpublished stuff as part of trying to build a reputation. So then could one say it is fine to perform someone else's stuff if that other person gives their OK? That depends on whether the creator retains the right to restrict or not to restrict. It is likely if the composition is popular that some sort of Middle-man has gotten involved, who would possibly have a contract signed with the artist/composer granting TRU to restrict performance to the Middle-Man. So what's a performer wanting to perform someone else's stuff to do? Maybe go ahead anyway and hope they don't get sued?

In other words, this is primarily a usage, not a right, although it can alternatively be a right granted by contract or license. On the other hand, this is one of those TRUs that can be considered as old as civilization itself. Distinctively, the performance creates its own copyright if it is sufficiently original, but that copyright might be of little value without the original author's authorisation to perform. More on this and TREATIES at TRU to restrict performance.

A related distinction is between private and public. Playing sheet music or reading a play out loud in a home theater show, even videotaping it, can be permissible private activity. To a degree TRU performance is only meaningful as having limits for what can be done in public. Except the modern digital reality somewhat nullifies this distinction. Home consumption of Digital Media needed new treaties and legislation to be regulated -- as done by WIPO -- so as to take home Internet consumption out of the private permitted category. There is little doubt that distributing DM of someone else's tune or play constitutes something of a performance made available to the public. Restrictions on circulation could limit this, for example if it was only sent by e-mail. Making such DM available broadly on a P2P network would probably be considered quite public and require written permission to do so. Of course it is well past time that electronic permission for such things should have become more commonplace. EMI, for example, has made church choir songs available as sheet music where the purchase includes the right to perform the composition in church.

It is notable that a performance based on a public domain literary work can qualify for copyright protection if it is sufficiently original.

5.

Benefits of TRU

End-user who wants to perform something. Potentially, a creator who gets compensated.

6.

Possible digital support

Other than obvious things like sales of sheet music or dramas, some judgement is called for regarding interactive participation with multimedia in which the interaction itself constitutes something of a performance. To a degree, a very good videogame player can be considered to perform on the game. It can certainly be good entertainment to watch the TV display of an excellent player doing a car race or skateboard videogame. Would remixing music tracks or playing certain types of interactive quizzes be considered a performance? Would the supplier want to arrange a contract to resell user interaction as a DM for other users? Inevitably.

7. Requirements none proposed at this time

7.

References