Re: Needletime / Pay for Play

On Thu, 29 Jul 1999, Bradley Silver <bradleys[_at_]wwb.co.za> wrote:
>
> 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:
> > >
> > > 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.
> > > [snip]
> >
> > I understood Bradley's question to be about history & causes.
>
> 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).

In the nomenclature of the Rome Convention, it would be not be correct to speak of a new kind of "copyright work" -- but rather of related media productions, in which neighboring or related rights are granted: performances, recordings, and broadcasts.

The problem of nomenclature arises in countries with British-derived copyright systems, where "copyright" is said to arise in sound and audiovisual ("cinematograph") recordings. Most laws worldwide would distinguish between creative works and performances and fixations of such works. How this nomenclature works out substantively varies ...

Now, entitlements to royalties depend, in theory, on provisions of the Rome Convention, as well as on national (and E.C.) laws, and, in practice, on how royalty-collecting societies and media powers apply all these provisions. Thus no easy answers can be given to further questions about how the royalty cakes are cut.

> Some may regard this as unfair...

This raises a still-more difficult question: Are the royalty cakes cut (and pieces allocated out) fairly? Talk to your local collecting societies about their international agreements. Ask them, too: What is to happen on the Internet, where older systems of global-royalty collection might be eclipsed?

     Paul Geller <http://www-rcf.usc.edu/~pgeller/>
     <pgeller[_at_]law.usc.edu>

P.S. I now regret having jumped into this can of worms. Its complexity forces me to hedge my own gloss above. When I say that entitlements to royalties depend on the Rome Convention, etc., I'm only talking about royalties for broadcasting the recording. The Berne Convention, the TRIPs Agreement, as well as the Rome Convention, and possibly other treaties, could come into play if it were a matter of royalties for using the work as embodied in a recorded performance. Of course, when I use the term "work" just now, I use it in the narrow (non-Anglo-American) sense which excludes recordings. (I also have to add the caveat that some learned commentators disagree about how the Rome and Berne Convention interface with regard to recordings, especially in Anglo-American jurisdictions, and I'm following one of the schools of thought.) Sorry for all this lawyerly hemming and hawing, but it gives you some idea of the state of the law. (I could give learned references, but it's tedious.) Received on Fri Jul 30 1999 - 21:07:32 GMT