The 'New Listener' and the Virtual Performer: The Need for a New Approach to Performers' Rights

• Author: Mira T. Sundara Rajan
• Pages: 309-330

Mira

T.

Sundara

Raj

an

A.

INTRODUCTION

Performances

are not

what they used

to be. A

century ago, when inter-

national

copyright

law first

came

to

prominence with

the

adoption

of

the

Berne

Convention

on

Literary

and

Artistic

Works,1

a

performer

was the

mouthpiece

of the

composer;

his

raison

d'etre

was to

disseminate

and

pro-

mote

the

underlying work

of a

true creator.

It was for

this

reason

that

classical composers

of the

nineteenth century viewed performance with

considerable ambivalence.

To

cite

two

well-known examples, German

gi-

ant

Johannes Brahms refused outright

to

pursue

a

career

as a

performing

pianist, while Hungarian Franz

Liszt

ultimately felt

that

the

unprecedent-

ed

glamour

of his

tenure

as a

piano virtuoso

— his

audiences notoriously

filled

with swooning

women,

his

concert

tours

punctuated

by

ruinous love

affairs

— led to the

tragic

sacrifice

of his

true promise

as a

composer.2

A

half-century later,

the

spread

of

recording technology brought

a new

dimension

to the art of the

performer;

yet

records documented perfor-

mances without bringing

fundamental

change

to the

status

of

performers

in

Western culture. Performers were

not

acknowledged

as

authors

in

their

Berne

Convention

for the

Protection

of

Literary

and

Artistic

Works,

9

September

1886,

as

revised

at

Paris

on 24

July 1971

and

amended

in

1979,

S.

Treaty Doc.

No.

99-27

(1986),

>

[Berne

Convention].

Jan

Swafford,

Johannes

Brahms:

A

Biography

(New

York:

Vintage, 1999).

309

Performer:

The

"New

Listener"

and the

Virtual

Ff

F1/FM

JO

1^

J^

V

$~S

4-^1

i

2

The Need for a New Approach to Performers' BRights

IN THE

PUBLIC INTEREST:

THE

FUTURE

OF

CANADIAN COPYRIGHT

LAW

own

right,

creators

of a

lasting cultural artefact

in the

form

of

sound

re-

cordings. Instead,

a

recording industry

was

built around performers

who

could

only benefit

from

the

second-class copyright which

has

since come

to be

known

as a

"neighboring

right"—

the

traditional term

by

which

the

rights

of

performers

and

others engaged

in

activities promoting

the

dis-

semination

of

true works

of

authorship

are

known. There were lucrative

possibilities

for the

producers

who

invested into

the

making

of

sound

re-

cordings,

but

performers themselves could only

enjoy

a

royalty

as a

per-

centage

of

sales.3

The

technological revolution

of the

Digital

Age

debuted early

in the

19705,

and it

earns

its

name

from

the

development

of

digital recording technol-

ogy.

At

that

time,

few

people

in the

cultural

industries

—

whether

com-

posers, performers, sound engineers,

or

producers

—

could

be

expected

to

grasp

the

potential

for

radical cultural transformation inherent

in the new

technologies.

A

great genius, however, could:

in the

last

decade before

his

death, Canadian pianist Glenn Gould, widely acknowledged

as one of the

great minds

of

twentieth-century music, predicted

the end of the

concert

experience

as we

know

it, to be

largely replaced

by

digital creations

from

the

recording

studio.4

Thirty-odd years later,

of

course, concert halls

and

live

performances continue

to

exist.

Yet

Gould

was

prescient

in

recognizing

the

potential

in

digital technology

for a new

kind

of

creativity

—

artistry

that

would take

the raw

material

of a

performance

and

make

it

into

a

last-

ing

work

of

art,

a

permanent testimonial constructed

from

an

ephemeral

moment

in

time. Indeed,

in his

eyes,

not

only

was the

performer poised

to

become

a

creator

of

full

standing

in his own

right,

but

sound engineers

and

technicians would also

attain

the

status

of

creators

of

culture

in a

society

emerging

from

an

unprecedented technological revolution.

In

the

context

of

modern copyright reforms,

it is

telling

that,

for

Gould,

the

ultimate measure

of

success

by

which

the

Digital Revolution must

be

judged

was the

transformation

of the

public

that

listened

to

music

— or,

in

modern copyright parlance, "consumed"

or

"used"

it.

Like

the

perform-

er,

composer, engineer,

and

technician,

the

"user," too, must evolve.

To

It may be

worth

noting

that

performers

have

traditionally

earned

a

percentage

of

revenues from

the

sales

of

sound

recordings,

but not

from

every reproduc-

tion

or

public performance

of

their

original

rendition;

ss. 15 & 16 of the

Cana-

dian

Copyright

Act, R.S.C. 1985,

c.

€-42

illustrate

this

point:

.

gc.ca/en/C-42/39253.html>.

Geoffrey

Payzant, Glenn

Gould:

Music

&

Mind,

ist

ed.

(Toronto:

Van

Nostrand

Reinhold, 1978).

3

4

310