Ananay Aguilar: University of Cambridge (UK)
‘Negotiating Change: the Fair Internet for Performers Campaign’
ABSTRACT: My current four-year research project focuses on performers’ legal rights. The study responds to criticisms to copyright law for privileging Romantic ideals of classical music that pay excessive tribute to the author. To overcome this asymmetry, the research places performers’ rights at the centre of the discussion. Drawing on interviews with performing musicians and record industry and government representatives, I examine these rights from a wide perspective: I take into account 1) the history of these rights, 2) how performers make use of the law in everyday practice and through case law, 3) how the rights are managed, and 4) the processes involved in changing existing law. I have found a systematic under-privileging of performers in aesthetic and legal discourse and practice. This paper engages with the fourth point by examining the Fair Internet for Performers Campaign advanced by the Musicians’ Union with international support from AEPO-ARTIS and FIA. By mapping the stakeholders in this debate and their differing strategies and proposals, I assess the timeframe and chances of this campaign to lead to positive change for performers. I argue that, ultimately, this battle is one of successfully harnessing and directing public opinion by persuasively narrating popular music: the major labels’ greatest strength.
Ananay’s project is situated, historically, almost 100 years after the origin of copyright in sound recordings. The research has four elements: origins, use, management and reform, and today’s presentation covers the last one – reform.
Copyright, she says, is rooted in romantic ideals – and these exist in copyright, in musical practice, and in education. Ananay’s interview research appears to reveal, paradoxically, that romantic ideals can deprive performers of a sense of [economic] ownership of their work. Authors feel strongly about ownership of their compositions; performers less strongly about ownership of [presumably recordings of] their performances.
We next see ‘law’, represented graphically; Ananay describes her own initial pre-research perception of law as a circle – a fixed body of knowledge to be studied. She then realised it is more like a spiral – of incremental case law building a body of practice and expectation; or perhaps like a massive tangled web, incorporating non-linear and often contradictory precedents.
Now to the EU DSM strategy – Jean-Claude Juncker (2014) – My Agenda for jobs, growth, fairness and democratic change. Head of DSM strategy Andrus Ansip said; “We want artists to be fully and fairly paid for their work to support new artistic creativity and production’.
Now we are introduced to the Fair Internet for Performers Campaign, a collaboration between four interest bodies: FIM, EuroFIA, AEPO-Artis and IAO. Here’s the video explaining the campaign:
Now Ananay outlines her research, including an exhaustive list of interview discourses, including creators, politicians, trade associations, consumers and DSPs, noting the difference in bargaining power between different groups. She discusses the benefits of collectively managed rights vs individually negotiating rights, arguing that the latter benefits those performers with the largest bargaining power disproportionately. She found Indie and Major labels to express the same position, and session musicians to be quite happy with full buyout of rights in many cases. Most parties on the creative side are in agreement, but the DSPs disagree “if the law requires us to have further outgoings, we will have to close shop”. She notes that Spotify, despite being a market leader, is still not yet in profit.
A collectively managed right would mean that all performers would get remuneration; the incentive is a moral one. This solution isn’t without its challenges – it would make free non-royalty-generating distribution not possible, for example. But the principle – that all contributors to a creative work should be compensated – is supported philosophically by most parties (apart from the DSPs).
In the legislature there are three discourses – transparency, contractual mechanisms, and alternative dispute resolution procedures. Ananay gives the example of a new artist who signs an unfavourable contract, shoots to fame and acquires more bargaining power, being able to renegotiate.
Now the philosophical conclusion: “what fairness?”
- Discourse can help to lay bare motivations and how these play out in the legislature.
[‘Romantic ideals’, here, are a proxy for composition generating royalties (from a recording), but performance not doing so.]
- Is lack of entitlement also a legacy of Romantic ideals?
[And a political point regarding the arguable suppression of creators’ rights…]
- Romantic ideals act as a proxy for oppression of labour in a neo-liberal regime.