Ananay Aguilar (University of Cambridge): The Value of Performance in Law: Performers’ Rights and Creativity
British copyright law has been criticised for privileging musical elements and practices that have been important in the conceptualisation of classical music, above those which have developed independently of that tradition. This conceptualisation has been associated with classical music’s aesthetic concept of the artwork: both law and the artwork treat composition as the culmination of creative genius, while performance is attributed little or no creative status. This asymmetry is further complicated by the domination of capital over labour in the protection of sound recordings, as copyright law vests authorship in the company that bears the costs of making and issuing the recording: performers are denied authorship over the record of their own performance. While the 1988 Copyright, Designs, and Patents Act introduced rights in performance, the depth and breadth of legal protection for performance-based musical practices, like most popular musics, remain limited. To overcome this asymmetry, commentators have focussed on how the concept of authorship might be extended to embrace collaborative practices that fall outside of the practices of classical music. My current project explores an alternative approach that places performers’ rights at the centre of the discussion. In this presentation I will attend to relevant case law to outline two main issues: firstly, the separation of creativity between composition and performance implied by these rights and, secondly, their relation to recent technological developments.