[PAML] Case study: Melbourne Symphony Orchestra

Melbourne Symphony Orchestra (MSO) explored issues of moral rights with their artists but was unable to resolve the question of the "individual" nature of copyright in the context of an orchestra. The company simply applied the current copyright act that limits performers' rights to the authorisation of recordings. Musicians currently have an informal role in ensuring right of attribution and integrity by reviewing audio recordings of the orchestra and company materials. Under this informal arrangement the musicians involved in the PAML Pilot Project were permitted to view the final products before release.

Management overview

Under the 1988 Enterprise Agreement all recordings of a live performance, excluding those for ABC radio and TV, required separate agreements with performers. The Agreement also covers use of the recording for promotional purposes. Unlike the theatrical award, musicians' salaries are intended to cover promotional activities provided they fall within the allowable load limit. The ABC's rights to record and use footage have caused some complaint within the orchestra, in particular when MSO footage was used to promote another orchestra. Ambiguity also exists between the definition of company and sponsor promotion. Some musicians have argued that if their image is used in the commercial domain then they should receive an additional fee to their orchestral wages.

During the 1980s the MSO sought to generate additional income through commercial ventures such as the Elton John and John Farnham Australian tours. Historically, musicians have opted for an upfront buy-out in favour of a royalty split so as to minimise the risk on their return. With the Elton John tour musicians were offered a royalty split of ticket and video sales. Under MSO's agreement with the ABC musicians were prevented from accruing royalties individually, hence musicians opted for an upfront loading for the entire season. The John Farnham tour again, resulted in a performer buy-out and company royalty.

Since the MSO was unable to resolve the issue of individual moral rights within the orchestra the company elected to work under the current copyright act that curtails performers rights to authorisation of recordings. Under current management all intellectual property rights over performance, and performance in a recording, are owned by the MSO. Musician representatives have an informal role in the decision making process of the company.

Intellectual property

The MSO product was clearly defined in the pre-production period. The Website originated from a specific shoot for camera rather than using existing or a live audience performance and therefore the role of each participant was clearly identifiable. The MSO project comprised three components with minimal stakeholder categories:

Obtaining the rights

All rights to the products were assigned to the MSO for perpetuity. In the tendering specifications the MSO stipulated that selected producers would be required to assign all intellectual property rights to the MSO, and that responsibility for obtaining clearance for other material would remain with the producers, Electric Alchemy. Electric Alchemy was required to obtain all clearances for the use of all material on the site, including computer software, for perpetuity.

All other rights held by performers, the conductor, writers and the composer were also assigned to the MSO for perpetuity. This allows the MSO to develop the Website "as it sees fit" and to use the material for unlimited company promotional use. The only limitation placed on the assignment was the prohibition of third-party commercial tie-ups.

The MSO also sought to use pre-existing footage of the orchestra for the corporate Website. Given that under the Enterprise Agreement all rights had already been assigned to the company, the MSO was free to use the material.

Royalty division

Unlike the other PAML Pilot Project products the potential commercialisation of the MSO products was limited to SWIFT Digital Media Services. All material was intended for publication on the educational or corporate Website. Other than use of the documentary on SWIFT, the MSO did not intend to charge for the use of educational material via an e-commerce payment system. The limited use of the products as a commercial tool dissuaded performers from considering a back-end payment for their role in the product. Performers opted for a front-end buy-out (loadings) following precedents set by the Elton John and John Farnham tours. If the products are commercialised in the future the MSO will consider a royalty split. Currently the MSO follows a standard 90:10 industry model where 10 per cent of all revenue is returned to creatives, including the performers, conductor and composer. Rather than determining the royalties at this stage the MSO has decided to confine the products to promotional use and split revenue when and if commercialisation happens.

Developing an interactive site required multiple recordings of the orchestra and specific solo performances. Under the Enterprise Agreement promotional activities are covered within the musicians' salaries provided they fall within the allowable call limit. The only loadings payable to performers were for playing in combinations of less than eight players (this applies regardless of whether the work is being recorded or performed live). The cost of assignment and loadings totalled in excess of $35000, more than one-fifth of the total production cost.

Standard royalty division of revenue for MSO recordings / seasons

Negotiations

The scope of the project required specification that the product was a complete orchestral performance with individual musical lines available for end users to manipulate. This created boundary issues of when a manipulated score constituted a new product. It was determined that any manipulation derived from the site constituted the original product. Additional products derived from a re-editing, reprogramming, or alteration of the site material would require an additional agreement with performers.

Performers remained concerned that their work could be used to promote commercial sponsors. While the MSO has links to a number of its corporate supporters this would not constitute a third-party commercial tie up. The defining point was where the site was generated. Under the agreement a "Website link" did not constitute a tie up however, if a corporate sponsor required footage for generation from their own site, performers would require additional commercial fees.

Moral rights exploration

Under the agreement with Electric Alchemy all moral rights were waived for production of the site. Performers' moral rights were more difficult to manage. From a musician's perspective a major consideration has been the "individual" nature of copyright, and to what extent the issue can be handled in a collective agreement. Since the MSO was unable to resolve this issue it reverted to current practice in relation to performers' rights, which are limited to the authorisation of recordings. Currently musicians have an informal role in ensuring the right of attribution and integrity by reviewing audio recordings of the orchestra and company materials. This is less powerful than a legal right to veto the release of a substandard recording, which would be granted under a moral rights agreement. Under the informal arrangement all participants were allowed to view the final product before release.