SONG, PERFORMANCE AND AUTHORSHIP: THE CASE OF FLAMENCO IN SPAIN.

• Author: Heredia-Carroza, Jesus
• Position: Report

1. Introduction

   Copyright regulations do not consider a performer's contributions to the song as creative labour. This is based on the idea that the song is finished when the author signs it, and its externalisation carried out by the performer is less valuable, or deserves less protection. Or from another point of view, it seems that the labour of performers is a routine labour, which is uncreative, and therefore least considered in the context of the legal protection involving copyright. This article exemplifies this situation with the case of flamenco song in Spain.

   Flamenco (1) is a traditional popular music genre with its own characteristics such as aesthetics, performance, and socio-cultural significance, amongst others. However, one of the most relevant features of flamenco is its consideration as an arte vivo due to its oral tradition. For this reason, the performer is not a mere reproducer of the work and its creative contributions to the flamenco song are fundamental.

   The research develops a methodology based on three approaches to demonstrate the gap between the legal protection and the importance of the performer for the flamenco song. First, by means of interviews with experts, it lays out the creation process of the flamenco song where its externalisation, carried out by the performer, is one of the key stages. Secondly, it studies intellectual property regulations from different countries to learn the necessary requirements for the recognition of creative contributions by copyright. Finally, through surveys applied to different market agents of flamenco, it determines the cultural valuation of the performer's contributions to the song.

   The conclusion shows that the contributions of the performer are essential to the flamenco song and it represents a creative labour. Therefore, copyright creates a gap in which special features of traditional popular songs, such as flamenco characterised by its orality and consequently its performers, are not considered.

2. Song, performance and authorship

   This article conceives the song as the sum of creative inputs from the different agents that are involved in its creation, resulting in a collaborative work. However, this concept does not originate from international copyright legal frameworks which grant less protection to the performer's creative contributions.

   Thus, the methodological proposal starts by describing the creative process of the flamenco song, as well as the various agents that intervene in it. This description process is carried out through interviewing renowned Spanish music industry experts (2). The experts concur that the song's creation process starts when the author resorts to a pre-existing creative source known as cultural heritage. That creative source derives in musical forms known as palo (3) in flamenco.

   In this stage, the author selects the palo for the development of the future song with its own rhythmic and harmonic characteristics. The author would then add personal elements such as melodies and lyrics, producing a musical composition. Current copyright legal frameworks would consider the song concluded at this point, overlooking what we consider would be the last stage: the externalisation.

   During the externalisation the performer completes the creation process of the song. In it, the composition's features combine with the performer's elements such as talent, spontaneity and own concept of cultural heritage, derived components that enable the recreation of what the author sets. The song is not completed until it is externalised; until then the song reaches most of the audience who gives it an appreciation (Bourdieu 1984). The purpose of the song is to be performed, therefore this stage cannot be overlooked.

   In addition to laying out the creation process, the interviewers identified the components of the flamenco song. On the one side, there is harmony, rhythm, music and lyrics, which would be traditional structural elements (Roson 2010), and on the other side the added talent of the performer (Heredia-Carroza et al. 2017). According to the experts, talent, which we consider the fifth structural element of flamenco, materialises through distinctive elements, improvisation, technique, its ability to produce emotion and generate reflection in spectators, and the ability to feel and make others feel flamenco.

   Figure 1 illustrates the need for the elements from the cultural heritage, the author and the performer, to come about in the creation process of the flamenco song. It also shows the intellectual property protection that each receives: public domain (4) for cultural heritage, copyright for the author and neighbouring rights for the performer (Heredia-Carroza et al. Forthcoming-A).

   Through a study of comparative law, the next section explains the differences between copyright and neighbouring rights and its effects on the performers.

3. Comparative law analysis

   3.1. Differences in the legal treatment of the author and the performer

   The study of the gap between the protection of the performer's contributions and the value it represents for the flamenco song requires identifying the differences between the legal treatment of copyright and neighbouring rights (WIPO 2011).

   Copyright focuses on the patrimonial rights of distribution, public communication and transformation and the moral rights of paternity, integrity, legal disclosure, modification, removal from the market due to a change in intellectual or moral convictions, as well as access to the one remaining original copy.

   Neighbouring rights do not include the patrimonial right of transformation, or the moral rights of legal disclosure, modification, removal from the market due to a change in intellectual or moral convictions, and access to the one remaining original copy.

   The differences between copyright and neighbouring rights have negative effects on the performers. For...