Wednesday, May 30, 2012

Stretching Moral Rights - A Bridge Too Far?

Mira Rajan is to be noted for her continuing attempts to discover moral rights issues where others have not and would not. 

She has an interesting guest post on the notable 1709 blog entitled "Is Apple deleting the history of music? Moral rights on iTunes".

With all respect, her argument is very unconvincing. 

It must be noted that Apple (iTunes) and Amazon are American companies and moral rights cannot be found in the American Copyright Act for performers or anyone else other than visual artists.

At present, there simply are no moral rights in performer’s performances in Canada. If and when Bill C-11 passes, performers will have these rights but only prospectively. Moreover, the right of association or (or attribution as she calls it) will be clearly qualified by the wording “where reasonable in the circumstances”. 

This clearly means that there is no need to credit the third desk violists or even the bass clarinetist (which I was) in a symphonic or operatic performance. The side persons in a small ensemble may present a closer case, but there can be no “one size fits all” rule. Besides, moral rights can always be waived and this would be the case in the new law. Canadian law does not require that waivers be in writing and a sufficient waiver may be implied in the circumstances. Arguably, this would be the case for many session musicians or even sidemen who were and are used to being nameless – even on old record jackets or inserts (remember when?) where there was plenty of room to list their names.

I agree that more information is better for cultural and historical purposes. However, the market and not moral rights law will probably fill the void –  I believe that there are other databases already existing that provide metadata for many CD era recordings.

As to providing the wrong track, that’s perhaps an isolated programming glitch in her example and someone might want to get their get their 99 cents back. But unless there’s a deliberate attempt to pass a Keith Jarrett improvisation off as Horowitz playing Scriabin (or other such unpleasant surprise), I don’t see any IP problem - much less a moral rights problem.

As for using single tracks from an album rather than the whole album, or even single movements – what else has radio been doing for the last 100 years or so?  How does selling a single track at a time harm a performer’s honour or reputation? Again, there’s probably at least an implied waiver here. Recording artists know that this will happen. They can try to work around it – like Gould if they are in his league – or they can live with it. But it’s rarely if ever going to be a moral rights issue. 

Anyway, the bottom line is that there are presently no moral rights for performers in Canada or the USA. I can’t speak for elsewhere.


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