1. What types of (intellectual property) rights do I need to consider when reusing performing arts productions online?
You will encounter copyright and neighboring rights. Online reuse involves various actions for which you need the permission of (the representatives of) the owners of these rights or for which you need to pay a fee.
Generally, rights holders monetize the permission they grant by requesting a fee in return, making it not immediately clear which actions require permission and which only require payment.
The core online reuse rights you need include the right to record the performing arts production audio(visually) and to make this recording available to the public online.
You will typically need to acquire these rights from (representatives of) the creative contributors to the performing arts production and the rights holders (text, music, choreography, etc.) of the work being performed, recorded, and made available online.
2. Why can't I simply publish my performing arts production online?
Because the permission you arranged for the venue (the performance rights) does not automatically include permission to record the performance or concert and publish that recording online. In case of doubt about whether you have the required permission, be aware that unclear contract language will not give you the benefit of the doubt.
3. Does copyright/neighboring rights always apply if I want to make my performing arts production available online?
They always apply (unless the protection period has expired), but some uses are allowed without permission or payment obligations.
This is the case when your intended online use is permitted under statutory limitations on copyright and neighboring rights, provided that this authority is not excluded in your licensing contracts. Examples include quoting (a fragment of a production for discussion, review, or preview purposes), parody (comic intent), or pastiche ('style imitation').
Since the boundaries and conditions of these statutory limitations are difficult to determine in practice, it is wise to consult a specialist in case of doubt before putting something online.
In addition to potential reliance on statutory limitations, the platform where you want to upload content may have already arranged (certain) rights (e.g., YouTube and Buma).
4. Can I publish a short fragment of a performing arts production online without arranging anything (e.g., for promotional purposes)?
The law (Copyright Act and Neighboring Rights Act) allows this. Many contracts that regulate the permission to perform a work also allow fragments of a certain maximum duration to be used for promotion.
If nothing is explicitly arranged, there is a strong argument that usual promotional fragments may be shown.
However, the opposite may also be true: the legal freedom to post a fragment online can be 'contracted away.' Always check your contracts before posting anything online.
5. With which persons involved in the performing arts production must I arrange intellectual property matters if I want to make my performing arts production available online?
The legal circle of people with whom you need to arrange matters does not always align with the circle of people considered in the sector as those with whom arrangements should be made.
To determine the legal circle, you must identify who contributes a copyright-protected element to the production and who performs the copyright-protected work.
The copyright creators of a protected work include authors and composers, set, lighting, and costume designers, and, in some cases, choreographers and 'visual creators' (photo, video).
Performers include, besides actors and musicians, conductors and directors.
In the CAO Toneel & Dans (Collective Labor Agreement for Theater & Dance) or individual employment and assignment agreements, arrangements may already be in place (e.g., participation in the recording and the fee for publishing the recording), so always check these agreements before arranging anything.
6. Does it matter for rights arrangements whether the creative team (the creators) and performers in my performing arts production are employees or freelancers?
Definitely. But first, note that the individuals referred to in the sector or by the company as members of the creative team do not necessarily equate to creators in the copyright sense. The latter are exclusively those who create a copyright-protected work (notably authors, composers, translators, editors, designers) and not those who perform the protected work (not only actors, dancers, musicians but also directors and conductors).
The distinction between employees and freelancers is important because, under copyright law and neighboring rights law, there is a provision whereby rights generally rest with the employer for employees, while for freelancers, the rights generally rest with them, requiring additional agreements.
7. Does it matter for rights arrangements on which (online) platform I make my performing arts production available?
Definitely. While permission is always required to make the production recording available online, for some platforms, certain rights are already collectively arranged (e.g., YouTube has agreements with Buma Stemra).
8. When do I encounter collective management organizations when reusing performing arts productions online?
Online reuse requires that the performing arts production be audio(visually) recorded and the recording subsequently made available online. Both the recording and the online availability generally require permission (which may be converted into a fee claim).
When these permission and/or fee rights are not exercised individually by a rights holder or their representative, such as an agent or publisher, they may be exercised by a collective management organization.
Although the organization you deal with primarily depends on the protected works (copyright holders) and performances (neighboring rights holders) featured in the production, in practice, for online use, performing arts institutions typically only deal with Buma Stemra (opens in new tab) and sometimes with SENA (opens in new tab) or Pictoright (opens in new tab).
9. What should I do if I am held liable for reusing a performing arts production online?
It is generally wise to immediately take the production offline and keep it offline until legal advice is obtained (and then act in accordance with the advice).
If the liability claim involves substantial damages and possibly a claim for attorney fees, it may be prudent to suspend availability and offer a standard license fee. After all, the lost fee is usually equal to the amount of damages incurred, so offering that fee eliminates the basis for continuing the claim for damages and escalating attorney fee claims.
10. What should I do if my question is not answered in or through the tool?
Your situation may be slightly different or seem different, and/or the other party with whom you want to make arrangements may not agree with the arrangement proposed by the tool. If you feel legally secure, you can deviate from the tool.
In that case, it is important to keep a good overview of the differences between the agreements with all parties involved and to consider any resulting usage restrictions.
If you get stuck because you cannot figure out how your question can be resolved with the tool or you do not feel sufficiently safe, it is advisable to seek external legal advice.
