Arts Festivals as Cultural Heritage in a Copyright Saturated World

Chapter 5
Arts Festivals as Cultural Heritage in a Copyright Saturated World


Fiona Macmillan


Cultural Heritage In and Out of International Law


While the concept of cultural heritage is arguably as old as recorded history,1 it first became a recognised concept in international law at the time of the Vienna Treaty of 1815, which was imposed by the British victors after the conclusion of the Napoleonic wars. This treaty reflected the rise of a discourse that linked people, territory and cultural objects.2 Such a discourse necessarily prompts questions about whom cultural heritage belongs to and, thus, carries with it debates about how history relates to, or is translated into, present day identity.3 This invests the concept with a highly contingent political nature, which is reflected in the trajectory of modern international law governing this question. When, after the first and second world wars, the newly remade international legal order turned again to this question, it initially expressed the object of its concern as being ‘cultural property’.4 The return to the use of the expression ‘cultural heritage’ in international law instruments5 and its widespread appearance in cultural and political discourse has not, however, produced any clear definition of this concept. One effect of this is that, while rights in relation to cultural heritage/property are weakly protected in law, the concept of cultural heritage is a rhetorical moving feast that enjoys potency in cultural and political discourse.6


Attempts to define cultural heritage have a tendency to focus on an open-ended account of the objects of protection rather than the concept itself. Thus, for example, in the recent European Union Heritage Plus funding call, the first footnote observes that:


Cultural heritage exists in tangible, intangible and digital forms. Tangible heritage includes artefacts (for example, objects, paintings, archaeological finds etc.), buildings, structures, landscapes, cities, and towns including industrial, underwater and archaeological sites. It includes their location, relationship to the natural environment and the materials from which all these are made, from prehistoric rock to cutting edge plastics and electronic products. Intangible heritage includes the practices, representations, expressions, memories, knowledge and skills that communities, groups and individuals construct, use and transmit from generation to generation. Digital heritage includes texts, databases, still and moving images, audio, graphics, software and web pages. Some of this digital heritage is created from the scanning or converting of physical objects that already exist and some is created digitally, or ‘born digital’.7


Since it is seems reasonably clear that not every instantiation of the contents of this list would be regarded as cultural heritage, there is a need for some overarching concept of cultural heritage that provides some basis for distinguishing between, for example, buildings and structures that constitute cultural heritage and those that do not. Strangely, such an overarching concept is difficult to pin down. Perhaps this is because we all think we know what we are talking about when we talk about cultural heritage. In order to give scope to our general sense that we know what we are talking about, this chapter proposes to use an overarching concept of cultural heritage as being those things (moveable and immoveable, tangible and intangible) that a community or people considers worth handing on to the future.8


The task of reconciling this concept with legal notions of cultural heritage derived from international law instruments needs to be undertaken with an eye on the fact that there is an obvious political element in identifying what is considered to be worth handing on to the future9 and this carries with it a degree of malleability and slipperiness. The sources of the legal concept of cultural heritage are the various international law instruments that have been generated under the auspices of UNESCO, where the politically determined, malleable and slippery concept of cultural heritage has gradually emerged from the earlier concern with cultural property. In this century, the UNESCO regime’s concern with tangible cultural heritage has given way to an increased focus on the intangible aspects of cultural heritage. In the festival context, where the cultural heritage aspects appear to be largely intangible, the two Conventions of particular importance are the Convention for the Safeguarding of Intangible Cultural Heritage and the Convention for the Protection and Promotion of the Diversity of Cultural Expressions.


According to Article 2.1 of the former Convention, ‘intangible cultural heritage’ means:


… the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognise as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.


Article 2.2 provides:


The ‘intangible cultural heritage’, as defined in paragraph 1 above, is manifested inter alia in the following domains:


(a) oral traditions and expressions, including language as the vehicle of the intangible cultural heritage;


(b) performing arts;


(c) social practices, rituals and festive events;


(d) knowledge and practices concerning nature and the universe;


(e) traditional craftsmanship.


In the context of this definition there seems to be ample scope for an argument that arts festivals, or at least some arts festivals, fall within the concept of intangible cultural heritage. This is particularly the case given the strong identification that many (if not the overwhelming majority) of arts festivals have with a particular place.


The Cultural Diversity Convention employs the concept of cultural heritage in order to define the idea of cultural diversity with which it is concerned. Article 4.1 provides:


‘Cultural diversity’ refers to the manifold ways in which the cultures of groups and societies find expression. These expressions are passed on within and among groups and societies. Cultural diversity is made manifest not only through the varied ways in which the cultural heritage of humanity is expressed, augmented and transmitted through the variety of cultural expressions, but also through diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used.


According to Article 4.3, ‘“cultural expressions” are those expressions that result from the creativity of individuals, groups and societies, and that have cultural content’, while Article 4.2 tells us that ‘“cultural content” refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities’. There is, of course, some circularity in these definitions.10 Nevertheless, it seems reasonable to suggest that arts festivals may act as a means of expressing, preserving and promoting cultural diversity. This is perhaps particularly so when festivals operate as a means of reinforcing a particular traditional culture or community identity, although it would not seem to be limited to this case.


Arts Festivals as Cultural Heritage


Arts festivals are a pervasive, and flourishing, part of modern life. There is some unsurprising evidence that the economic crisis has had a constraining effect on the arts festival sector, but overall it appears to have withstood the worst effects of this crisis. One of the reasons for this may be the wide range of interests and functions served by arts festivals, many of which are clearly identifiable with the concept of cultural heritage described in the preceding section. In order to understand more precisely the cultural heritage functions served by arts festivals, and then to analyse their relationship with the private property relations imposed by copyright, it is necessary to put some flesh and bones on the concept of the arts festival. The following discussion first focuses on what is meant by the term ‘festival’ and then moves on to a more detailed assessment of the effects of the qualifier ‘arts’. As this discussion reveals, attempts to define the arts festival expose both its fundamental relationship with cultural heritage and the extent to which that relationship is permeated by the copyright system.


In the literature the concept of the ‘festival’ tends to be defined compositely in both positive and negative terms. In other words, it is defined by both what it is and what it is not. On the positive side of this coin, the overriding and perhaps most general characterisation of the festival is that it is, in some sense, a suspension in time and space, during which life – or business – does not carry on as normal.11 Developing this idea of the festival as a period of suspension, the festival has also been described by commentators as: a space of openness, de-territorialisation and exchange;12 part of the ‘public sphere’;13 a site of democratic debate and transnational identifications;14 an ‘interpretation of cosmopolitan community’;15 and, in the words of Jean Cocteau, an ‘apolitical no-man’s land’.16 As all of these characterisations suggest, the idea of the festival is closely tied in to the notion of being in a particular community, or being together, in a distinct place in time and space. In his description of the Cannes Film Festival, Cocteau also described the festival as ‘a microcosm of how the world would be if people could have direct contacts and speak the same language’.17 Thus, Sassatelli citing Durkheim’s work on festivals,18 describes them as an ‘intensification of the collective being’ and, in Durkheim’s words, a ‘collective effervescence’.19 Along similar lines, Vrettos conceives of festivals as a manifestation of the human need to gather, socialise and exchange ideas.20 Developing this line of thought, O’Grady and Kill argue that in an age of digital and social media with its consequent personal isolation, the festival presents the chance to be with other people, and thus represents an opportunity for ‘[s]ociability, participation, togetherness and excitement’.21


Building on the idea of the festivals as distinct22 and sociable places in time and space, are conceptions of festivals that refer to their value as social, cultural, economic or political institutions and, thus, as expressing values associated with such institutions.23 O’Grady and Kill write about the festival as a cultural artefact,24 while Guerzoni refers to them as a way of filling ‘il vuoto pneumatico della cultura televisiva’.25 Values such as the promotion of cultural diversity,26 internationalisation27 or alternative social identities28 frequently form part and parcel of the festival concept. Festivals may also be understood as a form of asserting identity ‘in the face of a feeling of cultural dislocation brought about by rapid structural change, social mobility and globalisation processes’.29 Other types of cultural values pave the way for understanding the festival as a type of socio-economic institution. For instance, festivals may play a role in legitimating new artistic forms or new genres within existing artistic forms.30 At the same time, they function to commodify those new forms or genres.31 Importantly, they may also offer an alternative avenue for distribution,32 particularly in highly commodified cultural industries like the film industry, where one effect of commodification has been to suppress independent production and diversity.33


Festivals can be distinguished from the regular programming of concerts, theatre, film and so on that occur in concert halls, auditoriums, theatres, cinemas and other such venues on the basis that: first, these are not generally a single cultural event containing a series of connected events;34 second, the concept of the arts festival seems to imply some degree of audience participation, which might be considered to be linked to the idea, asserted above, of the festival as a period of being in community in a physical sense;35 third, and perhaps most significantly, regularly programmed arts events might be considered to be part of the ordinary course of life, precisely because they are regularly programmed in venues established for this purpose, and accordingly not occasions of suspension in time and space.


While some concept of what constitutes the ‘arts’ is clearly present in the foregoing discussion, a more detailed consideration of this question provides a clear link between the cultural heritage role of festivals and their operation within the copyright system. This is because one of the open questions pervading the relationship between copyright law and the ‘arts’ is that of constitution and authorisation. In other words: is it some generally accepted definition of what amounts to the ‘arts’ that constitutes and authorises the subject matter of copyright or, on the other hand, does copyright law constitute and authorise concepts of what are the ‘arts’? In either case, it seems clear that there are recognised disciplines within the arts and, at the very least, copyright law has contributed to the compartmentalisation of these disciplines.


The historical association between the subject matter of copyright and the concept of the arts is somewhat ambiguous. There seems to be some general acceptance that copyright was born out of the device of printers’ privileges, most probably originating in fifteenth-century Venice36 and then subsequently adopted with local variations in a range of other European countries.37 Under the Venetian system, which was designed to stimulate foreign trade rather than to engage in aesthetic debates about forms of creative output, the important distinction drawn between various possible forms of the arts was whether they were reproducible through the new(ish) technique of printing or not. Consequently, nothing in the law turned on the general distinction between, for example, written works and images. Considerations of local market stability and foreign trade value were paramount in obtaining a printing privilege.38 In this sense, the origins of the intellectual property system lie in market regulation and not in a particular aesthetic theory. Nevertheless, there is some evidence that in framing their arguments for privileges the petitioners came to reflect the predominant discourse or paradigm of creativity, which was based on theories of rhetoric. The rhetorical paradigm of creativity, which continues to retain considerable purchase in some quarters, focused upon the labour or creativity of the artist in gathering together and arranging ‘ideas’ into a particular and distinctive end product.39


Despite the tortuous and twisting path from the Venetian system to the modern systems of copyright protection, this early history resonates through modern copyright protection of the ‘arts’ in a number of ways. In particular, the fact that creativity is protected under copyright law only where its product falls within one of the categories of ‘copyright work’ has various implications for the relationship between copyright and the creative arts, two of which might be usefully emphasised in the present context. First, to the extent that any concept holds the list of copyright protected works together, however loosely, it is one derived from the rhetorical discourse of the Renaissance period. In the hands of modern copyright law, this is reduced to a focus on the production of the discrete ‘work’ by a recognisable creator (or creators). Secondly, while copyright recognises that more than one of its protected subject matters can exist simultaneously in one creative work, there is no evidence that it applies to hybrid works that cross the boundaries between the different categories of protected works. In this way, copyright law, and its pervasive influence on the concept of the arts, tends to harden the divisions between different types of creative works.


Overall, it might be said that while, at certain points in its history, copyright law reacted to developments in the creative arts by drawing them into its scheme of protection,40 it seems that this scheme of protection has now become relatively rigid. One of the results of this is that there is relatively little space for the copyright protection of innovation in form in the arts. Another important result is that it increasingly appears that copyright law defines, controls or affects the meaning of ‘arts’ in the broader social and cultural spheres. This very effect is evident in the way in which many arts festivals brand themselves as being literary festivals, film festivals, music festivals, theatre festivals, dance festivals and so on.


Copyright and Arts Festivals


The role of copyright in defining what constitutes the arts, and the way in which this impacts on how we understand arts festivals, constitutes the foundation upon which copyright interests have saturated the arts festival environment. In fact, a great deal of what happens in the course of the arts festival as event seems to have copyright implications of one type or another. The following discussion seeks to illustrate this in relation to various types of arts festivals, including film festivals, music festivals and what are described, generically, as culture festivals.


As far as film festivals are concerned, the copyright interests in the films that are shown arise at the time of the making of the film and, depending on the jurisdiction, usually belong either solely to the producer or jointly to the producer and director. There are other creative contributions to films that are recognised by copyright law, such as the copyright in the screenplay and in the sound track, but almost invariably these copyright interests are acquired by the copyright owner of the film. At film festivals, the more interesting copyright questions are posed by the ‘live’ events, such as interviews, workshops and other public encounters with directors and actors, which, while being apparently supplementary to the main event of showing the films are, in reality, what makes the festival as event distinct from daily life. As with all live and unscripted events, there is a question about whether the event has satisfied the copyright requirement of fixation in a material form.41 Slightly strangely (at least to anyone who is not a copyright lawyer), a recording of the event, whether it is authorised or unauthorised,42 has the effect of achieving fixation in a material form and conferring copyright on the participants – usually, in the context of film festivals, in their words. Authorised recorders, such as the festival organisers, acquire, subject to the terms of the authorisation, a copyright in the recording that they have made.


Despite the high degree of commodification of the relevant cultural product that prevails in both the film and music industries,43 the copyright aspects of music festivals are different to those of film festivals because music festivals are (usually, if not always) primarily concerned with live musical performances. This adds certain complications to the copyright picture, which means that it is necessary to consider a number of different situations in which music is performed at a festival. From a copyright point of view, the simplest of these situations is where the music performed is no longer protected by copyright, as is generally the case at early music festivals. Recordings of such music, the copyright in which resides in the producer of the recording, may be available to purchase at the festival. While this type of marketing is part of the festival environment it is not clear that it should be regarded as forming part of the network of copyright relations at the festival itself since it is based on creative relations occurring prior to the festival and has no necessary relationship with the creative relations taking place at the festival as event.


On the other hand, the copyright interests that are clearly implicated in the music festival environment relate to the performances occurring during the festival as event where the works performed are subject to copyright protection. Where the copyright in the music and, in the case of songs, the literary works comprised in the lyrics, belongs to the festival performers, as often might be the case in rock music festivals, then the copyright situation is relatively straightforward. The interesting questions in this situation relate to variations from the original copyright work made in the course of the festival performance, and to recordings of the performances. Variations in the course of the performance will be protected by copyright where they are reduced to material form. The obvious way of achieving such a reduction to material form is through recording, either authorised or unauthorised. As anyone who has ever spent any time on YouTube knows, the Internet is swamped by unauthorised recordings of performances, usually made on mobile phones. While making such recordings and disseminating them on the Internet is a breach of copyright (and, in some jurisdictions, may also be a breach of performers’ rights),44 they do have the advantage of reducing a live performance to material form and thus satisfying this requirement for establishing the subsistence of the copyright interest. As in relation to any other performance or public event, authorised recordings generate a copyright interest in the recording that belongs to its producer.