1.1 Introduction
Performers, as a group of entertainers, have struggled to be accepted as creators within the intellectual property rights regime (IPR). The proprietary approach under intellectual property law, which makes it essential to decide āwho gets whatā in a creative work, made the process of identifying what performers get a difficult task to accomplish. Although performers can be one of the strongest mediums through which an authorās literary work can reach a wider audience, the essentially temporal nature of performersā renditions, in a regime that demands the tangibility of a work, has differentiated their creative input from the creativity of the authors and relegated them to a secondary position in the creative hierarchy. These complexities in intellectual property law generally, and copyright law and performersā rights specifically, have been the focus of numerous academic writings. 1 Nevertheless, I believe that a comparison of the implications of these laws at ground level with the expectations of the recipients of these legally created rights would provide new dimensions to such academic discussion. In this respect, I rely on qualitative data collected in a South Asian developing country with a thriving commercial music industry: Sri Lanka.
The recently institutionalised global PRR aims to improve the economic position of those performers whose work can be audio-recorded and reproduced. This book examines whether the PRR achieves this aim. It investigates this question through a case study of Sinhala vocalists in Sri Lanka. Vocalists in Sri Lanka are a significant constituent within the music industry, and they had hoped that the PRR would make their work more economically secure. However, this book finds that the PRR, as developed internationally and implemented in Sri Lanka, is predicated on a particular understanding of the role of performers and their relationships within Sri Lankaās contemporary music industry. The case study shows that this understanding does not reflect the Sinhala vocalistsā role or their relationship within the Sri Lankan music industry.
The qualitative data gathered suggests that vocalists seem to be encountering two concerns. Firstly, they maintain that the making of cover versions, by other singers, of songs they initially performed is of concern to them. Secondly, the vocalists hope to have a secure economic position within the entertainment value chain. Although phrased as two separate problems, the underlining expectations seem to be similar in both cases. By arguing against covering and for a secure economic position, the vocalists express a desire to have their attachment to the songs they performed recognised and to continue to be remunerated from them. These concerns are distinctive to Sri Lankan singers when comparing with other music industries such as UK, USA and India and are at odds with how the PRR understands the role of performers and their relationships with other actors in the music industry.
1.2 Property and Belonging
Given that the PRR is a cluster of rights under the overarching IPR, it is natural to expect that the theoretical justifications that are generally relied on to explain IPR could be extended to justify the PRR. In this regard, Lockeās natural right to property, the economic incentive theory and personality theory seem to be the most prominent. Thus, I felt it was necessary to initially ascertain whether they could be used to justify the PRR and its potential to address the concerns expressed by vocalists. A brief analysis of the three theories is therefore carried out below to illustrate my journey working through these theories and to justify my decision not to rely on them.
John Locke seems to be the most widely used theorist in the exercise of justifying property rights for intellectual works. He justifies a natural right to property created by oneās labour, on the premise that āevery man has a property in his own personā. 2 Locke further argues that, since the labour of oneās body and the work of oneās hands belong to that person, no one else has any right to them. 3 According to Locke, in the state of nature, the earth and all inferior creatures are given in common by God to all men, who mix their labour with these resources, making the fruit of such labour theirs alone, so no one else can claim rights to it. 4 What is so created, therefore, is that personās property. 5
This natural right to property is not an absolute right. In arguing for the natural right to oneās labour, Locke introduces certain limitations. Firstly, this right is only available when others are not deprived of exercising their rights. 6 Therefore, one would acquire a property right to oneās labour when there is enough left in the state of nature for others to mix their labour with. 7 Accordingly, a natural right to what one has created by using oneās labour, according to Locke, will only arise when others are left with enough raw materials to make their creations.
In the second proviso, he maintains that one cannot claim rights to oneās labour if that person spoils and destroys what they have created with the use of their labour. One should only mix oneās labour for the purposes of enjoying it before what one has created perishes. 8 Hence, the natural right to oneās labour is only available as long as what is produced does not perish without any use.
Thirdly, it has been argued that an implied limitation can be seen in the wording used by Locke in the creation of a natural right to property. 9 This natural right is only available when one procures nature with their own labour 10 ; this would seem to be inferred in Lockeās words. 11 Accordingly, oneās natural right to property is limited to the things created by oneself.
The application of Lockeās natural right to property as a theoretical rationale for creating IPR has been subjected to criticism by many scholars. While these criticisms can be wide-ranging, three criticisms that challenge the very pillars of this theory are discussed here. Firstly, it is questionable as to how far Lockeās ideology justifying the creation of tangible property can be utilised for the creation of exclusive rights to abstract property. As some have pointed out, āabstract objects have the potential to reside in one physical object or manyā. 12 For example, if we consider a book that was written as a result of an idea the particular author had, this idea can be made available in thousands of copies of the same book. Thereafter, if a film was created from the storyline in the book, the same idea could be seen in the film so produced. The idea behind the book and the storyline is visible in every single copy of the book and the film. However, Lockeās theory is not helpful in identifying the object of propertyāi.e. the expression in the book or the expression in the filmāalthough it focuses on extending property rights to objects, i.e. the book or the copy of the film. 13 In arguing that Lockeās theory has been extended to justify the recognition of abstract objects under intellectual property, what has in fact occurred is the recognition of the physical object on which the intellectual creation is recorded rather than the abstract object.
Secondly, arguing for natural rights under IPR when they are created to last for a limited period of time also challenges the viability of Lockean theory in justifying IPR. 14 According to Locke, one who mixes their labour with what is available in nature will make that thing theirs, and theirs alone. Therefore, the time limitations stipulated by IPRāthe life of the author plus 70 years for authors under copyright, 20 years for patents, etc.ādo not fit well within his theory. For Drahos, an intellectual property right further fails to qualify as a natural right in that accepting it as a natural right would ignore the intellectual contributions of our predecessors. 15 Such recognition, according to Coombe, asserts a āunitary point of identity that denies the investments of others in the [work], and the constitutive history of others in its development, circulation and significanceā. 16 Therefore, granting copyright for an authorās work ignores the historical cultural contributions made by others, while granting exclusive rights to the person who made the most recent contribution to it.
Thirdly, relying on an indeterminable component such as labour in granting property rights for intelle...