Questioning IMRO

national | arts and media | opinion/analysis Thursday July 17, 2003 23:32 by Anthony McCann amccann at beyondthecommons dot com

The Politics of Performing Rights?

The Irish Music Rights Organisation, and organisations like it around the world, administers licences for performing rights. Developed from copyright theory, performing rights act as a justification for prescriptive control, making it legitimate for one person to prescribe the actions of another unless a fee is paid. Have you ever given performing rights a second thought? have you ever questioned the validity of performing rights? Have you ever thought about the role of persuasion and coercion in the politics of copyright and performing rights?

Following a recent restructuring of the distribution and membership department of the Irish Music Rights Organisation (IMRO), IMRO will be holding a series of Members Meetings around the country at the end of July. Meetings are scheduled for Sligo (24th), Galway (25th), Cork (28th), Kilkenny (29th), and Dublin (30th). These meetings are intended to explain how the IMRO Distribution and Membership department works, to listen to the concerns of members and to answer any questions members might have.

But have you ever asked yourself what IMRO does? Controversies involving publicans, primary schools, and traditional musicians during the second half of the 1990s allowed for a brief period of suspicion, if not paranoia, about their operations. In the space of five years, however, a series of contractual agreements, coupled with savvy public relations, transformed the fortunes of the organisation. By the year 2000, one of the most notorious organisations in the country became one of the most accepted, in a complete and almost miraculous turnaround. Now the organisation operates with full government sanction, full support of the legal system, and with an unchallenged economic monopoly position in the Irish jurisdiction.

But if the controversies of the 1990s made IMRO visible, the acceptance of the new century has rendered the operations of the organisation discretely unassailable. What exactly does the organisation do? In their own words, “The Irish Music Rights Organisation is the national body charged with administering public performance rights in copyright music in Ireland on behalf of songwriters, composers, arrangers of public-domain works, and music publishers. IMRO’s function is to collect and distribute royalties arising from the public performance of copyright works.” But what does that actually mean?

When you clear away all the legal jargon, and it’s difficult enough to clear away, the primary function of performing or performance rights, developed from copyright theory, is that they act as a justification for prescriptive control, making it legitimate for one person to prescribe the actions of another unless a fee is paid. In other words: “Obey me! Pay me money! (or else!)”. This is the most basic of logic behind IMRO’s licensing of “uses” of “music” in public spaces. For IMRO to operate successfully, or even to operate at all, licences for “music use” must be enforced on the basis of either persuasion or litigation, and the claims to authority that the organisation makes must remain unchallenged.

Performing rights, to my knowledge, are never mentioned in the Irish Copyright and Related Rights Act 2000. Copyright is mentioned, and performing rights sort of have something to do with copyright, and something to do with “making a work available to the public”, but nowhere is this made clear, in legislation or in the relevant literature. It seems to be simply assumed by all involved that there is a fundamental logic to performing rights and that it makes sense. Despite the rulings of various judges in courts down through the years, there may not be any solid basis in logic for the operations of performing rights agencies at all. Yet, the rhetoric of copyright and performing rights continues to guarantee financial turnover in the music industry, and the end, as ever, seems to justify the means.

One thing that is hardly ever noticed is that the supporting rhetoric for performing rights royalty enforcement runs a little thin. For example, the terms “music”, “music use”, “musical work”, or “performance” are never defined, either in Irish legislation or in literature provided by the Irish Music Rights Organisation (except maybe in circular terms, where “music use” is what “music users” engage in, and vice versa). The licences themselves are for the “use” of a product, but the product itself is never specifically identified, residing somewhere among the terms “work”, “music”, and “performance”. Nobody ever asks for more specificity than this, because it is always assumed that someone somewhere must have verified that the whole performing rights deal is above board and verifiable. It is simply assumed that these terms provide a safety net of solid justification for the organisation’s activities.

The people “making the works available to the public”, that is, the musicians and singers, are, confusingly, never identified as the “music users”, even though they are the ones doing the (sort of) copying. If they were charged for playing tunes and singing, it would lead to a public relations disaster, and draw way too many questions into the fray. Instead, venue owners are identified as “music users”, and the rest is controversial history. Strong-arm, explicitly coercive tactics, including litigation, are generally avoided, needless to say, as they are costly and generate bad public relations. If someone refuses to pay an IMRO licence when approached, then the organisation takes recourse to the Circuit Court. If a licensing agreement has been contracted but royalties are not paid, then the “music user” is sued by the Irish Music Rights Organisation as a commercial debtor.

The issue isn’t so much that it is wrong for people to think in fanciful ways about economics, authorship, genius, copying, music, and creative activity. People think what they think. Where it becomes ugly, however, is when a person moves from trying to persuade someone else that their way of making sense of things is valid to actually backing up that persuasion with threats of force and demands for money. Then, it would seem, it becomes less important what people think, and more important what their relationship to those around them has become.

As it happens, the Irish Music Rights Organisation, a non-profit organisation, continues to provide many helpful services for musicians, songwriters, composers, and publishers in Ireland. The organisation sponsors song contests, festivals, seminars, workshops, research projects, and showcase performances. And so it must, in order to garner support for the enforcement of its claims. Those sponsorships are, however, provided under the long shadow of performing rights, as the politics of persuasion and coercion implied by performing rights licensing continues to play itself out in people’s lives. It is not my intention to slight the organisation, merely to question the logic and politics of performing rights. Maybe next time you hear IMRO mentioned, you might give performing rights a second thought, or maybe even question the validity of performing rights at all.

If you are interested in finding out more about the operations of IMRO and the logic of performing rights, read *Beyond the Commons* or *“I Got it for a Song”: Lifting the lid on Performing Rights*, both available at http://www.beyondthecommons.com.