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21 for 2021: Performers’ Rights

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21 for 2021: Performers’ Rights

By 3 September 2021No Comments

This post is part of a series of evidence summaries for the 21 for 2021 project, a CREATe project within the AHRC Creative Industries Policy and Evidence Centre (PEC). The 21 for 2021 project offers a synthesis of empirical evidence catalogued on the Copyright Evidence Portal, answering 21 topical copyright questions for the 21st century. In this post, Ruth Towse (Professor of Economics of Creative Industries at Bournemouth University and CREATe Fellow in Cultural Economics) explores the empirical evidence on the exploitation of performers’ rights.

Introduction

Performers’ rights are the ‘poor relation’ of the copyright regime, being neighbouring rights or ‘rights related to copyright’ under the Rome Convention. They gradually evolved following the introduction of recording technologies that enabled the reproduction and distribution of a performance, which have developed over time from mechanical to digital methods. Performers include actors, musicians and singers, dancers, circus artists and others who create performances that are capable of being recorded and the producers of sound recordings. The widespread use of digital recording in many of the creative industries, but especially in sound recording, has given rise to a greater interest in the economic and legal aspects of performers’ rights. Performers were accorded individual rights in the 1996 WIPO Performances and Phonograms Treaties.

In the UK the Copyright, Designs and Patents Act 1988 gives performing artists various rights which were amended in 1996:  the ‘reproduction right’, ‘distribution right’, ‘rental right’ and ‘lending right’. These rights enable performers to authorise or prohibit the making, issuing, renting and lending of copies to the public. As stated by the Intellectual Property Office (IPO, 16 October 2019), performers’ rights prevent people from:

  • making recordings of, or broadcasting, a live performance
  • making a recording directly from a broadcast of a live performance
  • making a copy of a recording of the performance
  • issuing copies of a recording to the public
  • renting or lending copies of a recording public to the public
  • uploading the recording to the internet where it may be viewed by the public’.

Performers’ rights are ‘economic’ and ‘moral’: economic rights establish the basis for performers to obtain royalties for their recordings; moral rights protect the integrity of the performance against ‘derogatory treatment’ and the right to be identified as the performers in live performances or on recordings. Economic rights are an individual right in accordance with the 1996 WIPO Performances and Phonogram Treaty (though an ensemble or band of performers qualifies for moral right protection). In general, performers’ rights last for 50 years from the end of the year in which the performance took place; however, for sound recordings, the duration is 70 years in the UK and in the EU.

Performers also have an unalienable, unassignable ‘right to equitable remuneration’ (or ‘remuneration right’) where a commercially published sound recording is played in or communicated to the public. This right is now featuring in discussions about the implications for recording artists whose performances are streamed (see DCMS (2021)).

In the USA, the 2018 Music Modernization Act (MMA) besides facilitating legal licensing of musical works by digital services (via Sound Exchange), also protected unauthorized use of sound recordings and applied a statutory licensing regime to sound recordings for non-interactive digital streaming services, including Internet radio, satellite radio, and cable TV music services etc, making provision for performers (see https://www.copyright.gov/music-modernization/ for a fuller explanation of a complex situation).

Application of performers’ rights in the creative industries

Performers’ right apply in any creative industry in which performances are recorded; however, different arrangements exist in practice for musical and audiovisual performances, such as those in film, broadcasts, games and so on. In the music industry, musical copyrights are administered by collecting societies or Copyright Management Organizations (CMOs): in the UK, PPL licenses and collects royalties for musical performers and sound recording makers. For recorded music played in public or broadcast remuneration is split 50:50 between performers and record labels. British Equity Collecting Society (BECS) deals with audiovisual remuneration rights, for example, in film and broadcasting.

Watson, Zizzo and Fleming (2015) show that the music industry has been the focus of most empirical studies of performers’ rights (and, indeed of copyright). While it does not specifically refer to performers’ rights, Barr’s entry to the 21 for 2021 series provides a useful summary of differing treatment of copyright in the music and television industries.

A potential cause of confusion in these studies is that singer-songwriters enjoy both copyright in the lyrics and music of a song (or other musical composition) and performers’ rights in their performances and recordings. For an accessible explanation of how these rights apply in practice see Going for a Song, on CREATe’s CopyrightUser portal.

Performers often assign or license their rights to third parties, enabling a record company or performer to make and issue a recording of the performance to the public and make it available, for example through streaming. Platforms streaming music, such as Spotify, Apple Music, Amazon and so on obtain non-exclusive licences from the record labels, which generally hold the rights, or from enterprises that exist specifically to licence unsigned performers’ works.

Debates and developments

Performers are typically paid for their live performances in theatres, concert halls and other venues. Recognition of performers’ rights lagged behind those of copyright holders for several reasons (Taylor and Towse 1998; Towse 1999; Towse 2014; Towse 2015). The first and most obvious is that until recording technologies existed, there was no means to reproduce a performance; once that existed, however, and distribution via radio and television became feasible, copyright holders tended to oppose performers’ claims on the grounds, for instance, that they were anyway paid for performing and furthermore, paying them for recorded performances reduced the royalties available to authors and other copyright holders. Towse (2007) has argued that taking the stance of the economic justification of copyright, that is, it provides an incentive to create and distribute works, that the logic should apply equally to performers.

European countries led the way in pressing for performers’ rights in the EU (Guibault, Salamanca and van Gompel 2015). In the USA performers only acquired rights with the MMA, as outlined above.

How performers receive earnings from their performers’ rights has become more complex due to digitization of musical and audio-visual performances, and their distribution via Internet platforms. Formerly, sales of sound recordings and downloads enabled royalties for ‘signed’ performers (that is, those contracted to a record label) to be calculated on the basis of the sales price and divided between performers and other copyright holders according to contracts and negotiated agreements with representative bodies, such as collecting societies. Unsigned performers (sessions singers and musicians) are usually paid a session fee that buys out their rights. Similar arrangements apply to ‘extra’ performers in film and television.

The intervention of platforms distributing music, film and television programmes music as intermediaries has raised questions of legitimacy and the basis on which royalties and equitable remuneration should be paid to performers. Underlying contractual arrangements for sound recordings appear to be the root of misunderstanding and confusion over remedies. Kretschmer, Derclaye, Favale and Watt (2010) discuss the relationship between Copyright and Contract Law. The recent UK Parliamentary enquiry Economics of Music Streaming provides much detail and access to submissions by interested parties (DCMS 2021).

Evidence and research agendas

Searching the Evidence Wiki with headings ‘performers’ rights’, ‘performances’, ‘remuneration’ in broadcasting, film and music industries yielded some publications dealing specifically with performers’ rights. Most had the focus on the economic value of those rights to performers with the emphasis on the music industry with evidence of earnings, typically from collecting society data. Towse (1999) appears to be the first to have utilised these data, which, like all other data on earnings in the cultural and creative industries (CCI), are highly skewed, with a few ‘superstar’ earners topping the distribution and a long tail of others, the majority of whom earn little or nothing. Recent work by Aguilar shows little has changed (Aguilar 2019).

Those results were borne out in the US music industry (DiCola 2013).  Di Cola and Touve (2014) show the disruptive effect of digitisation on earnings in the music industry. Albinsson (2013) provides similar evidence from Sweden. Pavis, Tultli and Pye (2019) present evidence of relatively low earnings from voice-overs. Where the evidence is available, it shows that women earn significantly lower earnings in the CCI than their male counterparts.

Performers, however, often state that they value their moral right more highly than their economic rights (Atladottír et al, 2013). A couple of papers point out that performers’ rights do not extend to certain types of performance activity, such as stand-up comedy (and ‘free’ unchoreographed) dance (Oliar and Sprigman 2009; Waelde and Schlesinger 2011).

Also noted in many of these studies is that not all performers appear to understand or apply their rights. There are still gaps in the scope of performers’ rights and their application.

Performers, along with other artists, have repeatedly been shown to have a preference for work in their chosen field regardless of financial reward; intrinsic motivation outweighs extrinsic motivation, subject, however to the need to earn a minimum income (Robinson and Montgomery 2000; Garcia 2020). That is achieved in various ways, often through teaching or arts-related work as shown in the work by Throsby and Petetskaya (2017) in Australia.

Performers’ rights remain an under-researched area by contrast to work on authors’ rights. In both areas data can be found to test assertions and beliefs about their efficacy so that policy-makers can base changes to the law on evidence, not assertion.