Performing Arts Resources and the Digital Environment

Performing arts resources present the most potentially litigious challenges to digital data creators and users. High profile cases appear frequently in the media and the performance industries, particularly in popular music and film, are all too aware of the commercial implications of infringement.

As a result of this highly pressured environment, rights clearance for digital projects in the performing arts can often prove too costly, both in terms of money and time, to pursue. It is crucial, before embarking on expensive digitisation of film, audio or other media, to allocate time and resources to investigate potential rights clearance problems.

A further complication is the problem of MULTIPLE RIGHTS. Performing arts resources may include a number of different elements (e.g. dancers performing to music with a film projection background). Each element may also include a number of different rights which must be cleared (e.g. the rights of a composer, musicians, recording company etc.)

When dealing with Performing Arts Resources it is important to bear in mind the distinction between the MEDIUM of the material (e.g. audio, video) and the CONTENT (e.g. the performances documented). Both of these areas present rights problems and both must be addressed before embarking on any kind of digital project.

As a general rule for all digital projects it is important to properly credit all rights holders and preferably provide accessible documentation detailing restrictions on subsequent use.

• Physical or mechanical rights
• Performers rights and moral rights
• Educational exceptions
• How to approach rights clearance

Physical or mechanical rights

The MEDIUM of the resource will accrue physical or mechanical rights, for example, those attached to the process of recording a video. If you have recorded a live concert, play or other performance yourself then you are already the holder of these rights (or the rights may belong to the University if you have made the recording as part of your paid employment after July 1994 when there was a change in the law).

If you are not the holder of these mechanical rights, you will need to seek permission from the holder to make a digital copy of the material, where necessary, and to re-distribute that material in another form (e.g. on the web or on a CD-ROM). Rights holders generally perceive the web as a broadcast medium like television and are generally loathe to grant permissions for freely accessible web access. Remember that if you are seeking freely available web access rights you will have to clear the rights across international territories as much music and film is distributed in defined international areas.

In general, it is much easier to clear rights if access is restricted (e.g. protected by password to users in your department or on campus, or used as part of a limited edition non-profit CD-ROM). It is also easier to clear rights for materials which are unlikely to pose a commercial threat. The technology used to deliver materials can help to re-assure rights holders (e.g. streaming video and audio rather than supplying downloadable files) and in general it is much easier to clear short excerpts of a work than a complete performance.

Performers rights and moral rights

The CONTENT of the resource will accrue performer's rights and the rights attached to other creative input. Remember that it is already an infringement of these rights to record the performance without the explicit consent of the performers - digitising this performance for distribution on the web or via a CD-ROM will only compound the problem.

Even if you have cleared the physical or mechanical rights to the material it may be necessary to clear performers rights. It is common practice for e.g. broadcasters such as the BBC to clear rights for one showing and a number of repeats of a performance. Rights will not necessarily have been cleared at this stage for any subsequent uses that third parties may wish to make of the material, therefore you may need to contact performance unions such as Equity or the agents of individual actors to seek permissions.

Educational Exceptions

Do not assume that you are cleared under existing educational licences such as those issued by the Educational Recordings Authority (ERA) or the Copyright Licensing Agency (CLA). A better approach is to assume that you are not covered until you have approached the relevant agencies (see below) and have been given the all-clear. (You may in some cases be able to claim fair use in some cases should your use be challenged and you are using very short excerpts of copyright materials for the purpose of criticism and review).

How to Approach Rights Clearance

Dedicated organisations do exist to assist in the complex process of rights clearance. In some cases these organisations are well established in the performance industries but may only recently have begun to address the digital arena. There are also an increasing number of services within the UK HE and FE sector which support digital data creators and can offer practical guidance.

Mechanical Copyright Protection Society
http://www.mcps.co.uk/
The MCPS can clear the use of library music or performing arts projects and advise on the clearance of commercial music

For further information please contact:
newtech2@mcps.co.uk

Performing Rights Society
http://www.prs.co.uk
PRS licences the PUBLIC presentation of music. Performers, composers and other creators can authorise broadcasting and cable performance of their works or, as nearly all do in the UK, entrust that responsibility to the PRS. This includes websites and other digital media.

For further information please contact:
mike.palmer@prs.co.uk

Managing Agent and Advisory Service for Moving Images and Audio
http://www.bufvc.ac.uk/maas/
The Managing Agent, being established at the end of 2000 jointly by the BUFVC and the Open University, will identify, prioritise and clear rights in appropriate moving image and sound collections for online delivery to universities and colleges in the UK. The Advisory Service will offer support and advice to the HE/FE community on the access and use of moving picture and sound resources online.

For further information please contact:
maasrights@bufvc.ac.uk

Performing Arts Data Service
http://www.pads.ahds.ac.uk
The Performing Arts Data Service is based in the Gilmorehill Centre for Theatre, Film and Television and collects, documents, preserves and promotes the use of digital resources in theatre, dance, music, film and the broadcast arts. The PADS can advise on technical delivery of complex performing arts resources, on appropriate documentation strategies and on long-term preservation of materials.

For further information please contact:
info@pads.ahds.ac.uk

Catherine Owen

Return to: Compliance section