Nobility of Interpretation: Equity, Retrospectivity, and Collectivity in Implementing New Norms for Performers

Journal of Intellectual Property Law Volume 12 | Issue 2 Article 2 April 2005 Nobility of Interpretation: Equity, Retrospectivity, and Collectivity in Implementing New Norms for Performers' Rights Antony Taubman Australian National University Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons, Music Commons, and the Theatre and Performance Studies Commons Recommended Citation Antony Taubman, Nobility of Interpretation: Equity, Retrospectivity, and Collectivity in Implementing New Norms for Performers' Rights, 12 J. Intell. Prop. L. 351 (2005). Available at: https://digitalcommons.law.uga.edu/jipl/vol12/iss2/2 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Taubman: Nobility of Interpretation: Equity, Retrospectivity, and Collecti NOBILITY OF INTERPRETATION: EQUITY, RETROSPECTIVITY, AND COLLECTIVITY IN IMPLEMENTING NEW NORMS FOR PERFORMERS' RIGHTS Antony Taubman* TABLE OF CONTENTS I. INTRODUCTION: PERFORMERS' RIGHTS & THE EVOLUTION OF INTELLECTUAL PROPERTY LAW ............... A. THE INTERNATIONAL LEGAL MATRIX ...................... B. REHASHING THE POLICY RATIONALE ...................... C. NATIONAL IMPLEMENTATION OF NEW NORMS .............. D. UPSETTING OR RESTORING THE EQUITABLE BALANCE? ....... II. 353 354 359 363 365 THE DOMESTIC LEGISLATOR WITHIN THE INTERNATIONAL INTERPRETATIVE COMMUNITY ............................. 369 A. LEGAL AND PRACTICAL IMPLICATIONS OF OTHER NATIONAL CHOICES .................................... B. FLEXIBILITY IN TREATY IMPLEMENTATION ................. C. OBJECT AND PURPOSE OF THE WPPT ...................... III. 372 378 381 MORE POWER TO THE SPEAR-CARRIER: PRACTICAL EQUITY IN DEFINING THE TERM "PERFORMER" .. ........................ 382 A. DEFINING ELIGIBLE PERFORMERS ........................ 383 1. Expressionsof Folklore and Copyright Works ................ 2. Scope of E/igible Performances ............................ 383 385 B. REASONABLE INTERPRETATIONS OF PERFORMERS ........... C. LIMITATIONS ON THE DEFINITION ........................ 387 390 * Head of Traditional Knowledge (Global Intellectual Property Issues) Division, World Intellectual Property Organization (WIPO); Senior Lecturer, Australian Centre for Intellectual Property and Agriculture (ACIPA), Faculty of Law, Australian National University (on secondment). This Article draws on research done at ACIPA and on a paper prepared for the Department of Communications, Information Technology and the Arts (DCITA). The Article has no connection with the author's current position with WIPO. It offers the author's personal views only, and does not represent any official position. In particular, any views expressed are not necessarily those of WIPO, its Member States, or its Secretariat. Published by Digital Commons @ Georgia Law, 2005 1 Journal of Intellectual Property Law, Vol. 12, Iss. 2 [2005], Art. 2 352 J. INTELL PROP.L IV. EQUITY AND RETROACTIVITY ............................... A. APPLICATION IN TIME UNDER BERNE ...................... B. MUTATIS MUTANDIS APPLICATION TO THE WPPT ............ [Vol. 12:351 1. App ying the Principlein the WPPT Context ................. 2. Retroactivity Under TRIPS .............................. 3. WPPT Negotiations ................................. 4. The Effect of Other WPPT Provisions ...................... 5. What RightsA re at Issue? .............................. 397 399 404 405 406 408 409 411 C. OPTIONS FOR RETROSPECTIVITY .......................... 412 V. MAKING THE CASE FOR ADHERENCE ........................ 414 VI. CONCLUSIONS: NOBILITY OF INTERPRETATION https://digitalcommons.law.uga.edu/jipl/vol12/iss2/2 ............... 420 2 Taubman: Nobility of Interpretation: Equity, Retrospectivity, and Collecti 2005] NOBILITY OF INTERPRETATION I. INTRODUCTION: PERFORMERS' RIGHTS & THE EVOLUTION OF INTELLECTUAL PROPERTY LAW The development of intellectual property (IP) rights over (performers' rights) illuminates a cluster of broad, systemic issues that confront the IP policymaker and legislator today. These include: " The development of performers' rights is a concise instance of the contested recalibration of the public domain, as established notions of equity come under pressure through the impact of technological change and shifts in social values. " At a time of renewed calls for IP laws to form a more explicit part of a broader policy matrix, regulation of performers' interests has traversed the uncertain boundary between distinct, intangible property rights and associated forms of public policy regulation through exclusivity, compensatory liability, criminal law, unfair competition and labor law. * Performers' rights set equity and pragmatism at odds in protecting the individual right holder in asymmetric negotiations over the exploitation of IP; " Recognition of a spectrum of performers' rights within a diverse ensemble entails reconciling individual as against collective interests. * The issue highlights the tension between autonomous domestic policymaking and legislation and the pre-emptive effect of international standards and trade negotiations, and the uncertain role of the domestic legislator as an interpretative authority of treaty obligations. " Protection of performances of expressions of folklore lends some momentum towards more direct and effective recognition of the IP interests of traditional and Indigenous communities; it also foreshadows in a practical context the broader themes of retroactivity, collectivity and equity that lie at the heart of the debate over recognition of traditional and Indigenous interests in the IP system. This Article explores each of these themes by considering the relationship between an abstract notion of equity and the pragmatism of constructing an effective legal mechanism. Specifically, this Article addresses three overlapping aspects of performers' rights where equity and practicality appear to be at odds: retrospectivity of protection, recognition of individual performances within an ensemble or collective endeavour, and protection of expressions of folklore as an expanded element of protection of performances. While it is tempting to see equity and practicality as inherently at tension and the resolution of these competing demands as a reductive trade-off, it may be more productive to view practicality as an important ingredient of effective delivery of equitable outcomes. Published by Digital Commons @ Georgia Law, 2005 3 Journal of Intellectual Property Law, Vol. 12, Iss. 2 [2005], Art. 2 J. INTELL PROP.L [Vol. 12:351 " Part I introduces the legal and policy context for performers' rights and the (...truncated)