Re: Needletime / Pay for Play

On Wed, 28 Jul 1999, Mike Holderness <mch[_at_]cix.compulink.co.uk> wrote:
>
> On Tue, 27 Jul 1999, Paul Geller <pgeller[_at_]law.usc.edu> wrote:
> >
> > On Fri, 23 Jul 1999, Mike Holderness <mch[_at_]cix.compulink.co.uk> wrote:
> > >
> > > On Mon, 19 Jul 1999, Bradley Silver <bradleys[_at_]wwb.co.za> wrote:
> > > >
> > > > How has the performance right in a sound recording (needletime)
> > > > come to include performers' rights to receive a percentage of the
> > > > appropriate royalty for the broadcast of the sound recording?
> > >
> > > Surely because in the _droit d'auteur_ tradition -- which is, after
> > > all, the mainstream -- artists, including performers, have
> > > *inalienable* rights in their work.
> >
> > To start, distinguish between (a) the author's right in his or her
> > work, (b) the performer's right in his or her performance, and
> > (c) the producer's right in its recording. To illustrate, consider
> > a Beethoven sonata: Beethoven cannot assert his rights any more, but
> > the pianist and record company can assert theirs in their (recent)
> > recording. For their rights in broadcasting, see the Rome Convention,
> > art. 12. Do not get confused by the nomenclature or the alienability
> > issues.
>
> I understood Bradley's question to be about history & causes. It
> seemed to be based on the axiom "copyright is a property right",
> possibly expressing doubt about performers having rights in a
> work "owned by" a producer. The distinction between copyright &
> authors' rights is -- especially in this context -- more fundamental
> than a matter of "nomenclature".

Thank you Mike! I think that many people are so easily confused about how classification of property rights. In South Africa, pay for play was almost introduced as a right flowing from the producer's ownership of the copyright in a sound recording. Then, when the WPPT was drafted, this included the obligation to pay performers a percentage of the "pay for play" royalty. My question is then really about how this has been reconciled with the producer's ownership of the copyright in the sound recording. Are we creating a new kind of copyright work : "the performance", separate from the play (literary work), composition (musical work), and fixation thereof (sound recording and cinematograph film). Would actors then be entitled to royalties from the broadcast of their films (by operation of law as opposed to by virtue of a contractual agreement), in the same way that pay for play entitles performers to a royalty for the broadcast of their performance embodied in a particular sound recording? Our law has catered for the protection of perfomers rights by requiring their permission for the producer/cinematographer to record their performance. Once recorded however, they have no further rights to control the performance/distribution thereof save as in line with the terms of the agreement reached with the producer/cinematographer who first recorded them.

Some may regard this as unfair, and indeed there is an element of unfairness. But in correcting this, do we sacrifice the fundamental legal basis of intellectual property? I know I sound like a typical lawyer here. But it has yet to be explained to me how we grant performers a property right in their performance without creating a legal category for what right is actually being protected. Performers rights and copyright are quite distinct.

-- 

Bradley Silver
Webber Wentzel Bowens
http://www.wwb.co.za/
<bradleys[_at_]wwb.co.za>