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The Advent of Performing Rights in Europe

Music copyright, as well as other intellectual property rights (IPRs), has always been closely linked to technological shifts. The introduction of the printing press in the mid-fifteenth century started the process toward copyright in tangible items like books, music scores, CDs, posters, and T-shirts. These products are all private goods in that they are rivalrous and excludable. Once an item has been bought, nobody else can buy it. Broadcast rights, mechanical rights, and blank media levies also appeared as the results of new technologies. The digital revolution and the Internet call for new amendments to the current IPR legislation. This paper tells the story of another IPR that covers goods or situations that in some aspects are non-rivalrous or non-excludable, namely the performing right. It briefly looks at technological change as a cause for the urge for performing rights but concludes that it was rather the general economic growth in Europe after the Industrial Revolution and the growth of the public concert scene that paved the way for the new legislative amendment. Although at least the initial transaction costs were high, the potential gains from the introduction of the institution of property rights in the inputs for music-making in public performances could now be beneficial for the growth of supply both qualitatively and quantitatively. Composers could devote themselves more to their trade as freelance professionals. The collective licensing agencies became second-step institutions in attempts to lower transaction costs. Thus, this paper discusses the fundamentals of institutional economics. I will describe the introduction of performing rights by means of international comparisons from France, Germany, Britain, and Sweden. Why did the latter three take so long to implement the French legislative innovation? Ethnic or national animosities will be discussed. Ostensible differences in the way composers and outsiders viewed both artistic and general moral norms seem to play an important role in determining why some countries viewed performing rights with lingering skepticism for several decades after their first introduction in France. This point is related to Polányi's theory of labor as a “fictitious commodity” and his observation of the “double movement” of liberating and restricting forces on the labor market. Performing rights are generally divided into two categories: 1. grands droits pertaining to music for the stage (opera, musicals, ballet); and 2. petits droits pertaining to the diffusion of other forms of music productions. The grand rights are negotiated directly between the composer (often represented by a publisher) and the theater company while the small rights are the objects of collective licensing agencies, which provide customers with blanket licenses for the use of all the music listed by the agency for an agreed purpose (normally live performances or broadcasts).