Digital rights expert Ben Green explains how the law is catching up with digital technology, and what arts organisations need to think about before embarking on publication of a digital project.
The first problem facing organisations when thinking about digital rights is that there is no consistent terminology. The Space is currently consulting with the arts sector to formulate a standardised set of digital rights terms and definitions to help the sector negotiate digital rights, especially smaller companies. While the Royal Opera House or the National Theatre have their own in-house business affairs and legal teams, a lot of small organisations don’t. You end up with a situation where organisations ring round each other and ask "what did you do on that?” Or "how did you get that?" "What did you pay for that?”. We need a better framework that everyone endorses, both rights holders and digital commissioners.
What are digital rights?
“Digital rights” is a phrase that’s grown up over time, and it covers the rights within and across digital/online distribution. So essentially the right to publish a digital copy of something, whether that’s online, via mobile or on DVD or CD.. You can also protect that digital copy by putting ‘digital rights management’ (or ‘DRM’) technology on top of it. That could be, for example, to stop people copying it, viewing it in a different territory, or not being available after a certain period of time.
The intellectual property or copyright definitions of all artworks are covered under the UK Copyright Designs and Patents Act of 1988,. It covers all artistic contributions to any performance/artwork across all arts genres including theatre, dance, opera, music, literature and fine art..
These ‘underlying’ rights remain integral to the artistic work/performance when it is digitally recorded and must be secured by your organisation in order to publish/distribute the work. The rights to publish the recorded work are sometimes described as ‘distribution rights’..
Recorded digital works have an ongoing life and can be distributed via many different platforms/formats, this usage is referred to as ‘ongoing or secondary use rights and are entirely separate to any live performance rights that may be been secured. You need to consider well in advance how you are planning to distribute the work beyond the live presentation. This may be a simple as a free to air live stream via an organisation’s own You Tube or Facebook page or it may include a publication plan to broadcast, release in cinema, on DVD, VOD (video on demand), or DTO (download to own).
The first thing you need to do is to establish where the work will be published and whether or not this publication involves a commercial transaction where the organisation or its sub-licensors will be receiving payment for the digital artwork. In order to distribute the work on these various platforms, the organisation needs to ensure it has put in place the correct rights, or ‘clearances’ in the created work - if it puts that work online or distributes it without those clearances, there is a legal risk of a claim (it may well have infringed another party’s rights). When appropriate, the rights owner may receive additional fees or royalties for those different uses or platforms.
Things to consider
What kind of artistic contributions may be subject to underlying rights:
Any artist who has contributed to the creation of the recorded work whether or not they appear in vision. So dancers, actors, musicians, designers (sound, costume, set, visual fx), composers, choreographers, conductors, stage managers, writers, directors.
Any third party artist whose copyright is included in the recorded work – does if reference (or is an adaptatation of) an underlying work like a book or poem, does it feature or reference other artworks, photographs, archive footage.
Does it include any existing copyright music, either by use of an existing recording or live music based on a previously published musical work, If a dance company wanted to use a David Bowie track, they would need permission to use that commercial sound recording in the live performance, but would then need to seek entirely separate permission to record and distribute it online and just because permission has been granted by the rights holder to include the music in a live performance does NOT mean that permission can or will be granted to its inclusion in a recorded work as these rights may have already been licensed elsewhere in connection with another recording, Music is fiendishly complex.
It’s often the case that we have to wait for the law to catch up with new technology and we’re in that place right now because of the number of new variables associated to digital distribution rights. Organisations like Equity and the PRS will usually be very helpful with queries, but we hope the digital rights framework will simplify some of these issues.
Digital rights checklist:
- Is the performance or event going to be captured (recorded) live? Do you want to stream it live online?
- Are you wishing to make it available on-demand, so people can go and view it whenever they want?
- Where is that going to be available? What territory — are you going to send it out to the world or just the UK? And if it's the UK only, what mechanism will you put in place to stop it going outside the UK?
- Can a user just view the recording, or can they interact with it and do other things?
- How long are you going to make it available for? (Remember that you might be limited by a rights holder on that).
- On what platform(s) will it be available? Make sure you check the terms and conditions of the platform you're offering it to.
- Are you going to offer it freely, or commercially? Or a mixture? If it's offered freely, the rights owner may be concerned that it is going to impact on their commercial rights and they might want a fee.
- Do you have the rights to show extracts of the work for commercial purposes? You might want to promote the work or the performance itself, but you might also want to use a clip or extract to promote the organisation or the company on a general basis. That might be a conversation that has to be had with the rights owner.
It’s important to think about this as soon as you can. If you can't get the rights to do what you want to do, that could scupper the whole creative project.
And finally, once you’ve posted something online, don't necessarily think that the work stops there. You might need to manage your rights afterwards, for example you might need to remove a recording from your website after a year or six months, or you might have to report music to the PRS, or have to pay people at different stages. So, both think ahead and get your rights organised, and you’ll keep everyone happy…
Common terminology and definitions for digital rights
The Space has worked with arts and cultural organisations, rights representatives, talent unions and digital rights expert Ben Green to develop a Digital Rights Code of Practice, designed to help the arts sector navigate the evolving digital distribution environment. Find out about the agreed common terminology and example definitions, in the ‘lexicon’ of different digital uses and rights, which has now been signed off by all of the major rights holders. We hope that this will make the contracting of contributors, creators and rights-holders easier for everybody.
Ben Green is the founder and Director of Ben Green Associates, a company focused on digital rights strategy, negotiation and management. He was previously Head of Rights Business Development at the BBC, and has worked with organisations including the V&A, Tate Britain and the British Museum. He was speaking to Eleanor Turney.