Heredia-Carroza, Palma and Aguado (2019)

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Heredia-Carroza, Palma and Aguado (2019)
Title: Song, Performance and Authorship: The Case of Flamenco in Spain
Author(s): Jesús Heredia-Carroza, Luis Palma, Luis F. Aguado
Year: 2019
Citation: Heredia-Carroza, J., Palma, L. and Aguado, L.F. (2019) Song, Performance and Authorship: The Case of Flamenco in Spain. Trames, 23(73/68), 1, 2-14
Link(s): Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: The study firstly provides a comparative legal analysis in regards (i) differences in legal treatment between author and performer, and (ii) the requirements for protection under copyright.

Thereafter, qualitative methods were used to determine a song’s perceived cultural value. 15 interviews were undertaken with relevant members of the Spanish music and flamenco scene, including performers, authors and managers of cultural spaces, in order to identify relevant “elements” of the creative process. Thereafter, 696 online Likert-scale-style surveys (made available on Flama Le guia del flamenco website) were also completed, consisting of 586 consumers, 51 critics, and 59 cultural managers (the latter two groups being classed as experts).

Data Type: Primary data
Secondary Data Sources:
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Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
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Abstract

“This article aims to explain the dilemma between the importance of performer contributions to the song and the legal treatment that they receive in the market. It applies to the case of flamenco in Spain. We have designed a methodology based on three approaches: interviews with experts, in order to clarify the creation process of the flamenco song; a study of Comparative Law to determine the legal status of the performer; and finally, surveys to measure the valuation of the contributions from the performer to the song. The conclusions show that the contributions of the performer are essential to the flamenco song as it represents its creative labour; however it is not protected by copyright.”

Main Results of the Study

Experts agree that flamenco dancers create personal marks, distinguishable variations and novelty when performing songs. Furthermore, they argue that in this circumstance the author and performer’s inputs cannot be distinguished, as performance is necessary to externalise songs. Nonetheless, performers contributions tend not to be recognised under copyright law.

Qualitative evidence shows that performers of flamenco dances are considered active participants in the creative process of songs (with 82% of consumers and experts agreeing on this point), with an important role in cultural heritage (esteemed by 71.84% of consumers and 84.55% of experts). Some of the highest valued elements of flamenco are attributed to the performer (e.g. making others feel flamenco, emotive responses, reflection).

Policy Implications as Stated By Author

The authors recommend “filling the gap” between the legal protection afforded to the author of a song or dance, and the lack of protection for the performance of that song or dance. They suggest that performers should also be considered authors where they collaborate with the song, i.e. acknowledging the author as composer, but the performer as providing externalisation of this (akin to joint works). In Spain, this may be manifested by reinforcing the Texto Refundido de la Ley de Propiedad Intelectual article 132 and standardising the legal treatment of songs.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Green-tick.png
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets