[p2p-research] Fwd: Authorship and Copyright in Theatre Sudhanva Deshpande (EPW)

[Michel Bauwens]

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From: Frederick [FN] Noronha * फ्रेडरिक नोरोन्या <fredericknoronha at gmail.com
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Date: Apr 13, 2009 2:58 AM
Subject: Authorship and Copyright in Theatre Sudhanva Deshpande (EPW)
To: asia-commons <asia-commons at googlegroups.com>


COMMENTARY Economic & Political Weekly  EPW   april 4, 2009  vol xliv no 14
19 This article is based on a presentation at the Second National Free
Software Conference, Cochin, 15-16 November 2008. Thanks to Akshara K V,
Ashish Rajadhyaksha, Pravin K P, Sameera Iyengar and Sanjna Kapoor and Deepa
Punjani for discussions and comments on an earlier version of this article.

Sudhanva Deshpande (sudhanva at leftword. com) is a theatre activist associated
with the Jan Natya Manch.

Authorship and Copyright  in Theatre Sudhanva Deshpande
----------------------------------------------------------

Copying, imitation and reproducibility are central to the fine arts and
therefore the concept of copyright sits uneasy.  Experience suggests that
copyright is designed to protect corporate profits rather than artists'
creativity. It is imperative for artists and theatre persons to work out
alternatives to copyright which recognise the creator's work without
obstructing wider dissemination and adaption.

Increasingly, copyright disputes are all  around us. Consider the figure of
H arry Potter.  The agents of J K Rowling sued a Durga Puja samiti
(committee) in Kolkata because the puja pandal (prayer tent) was based on
the Harry Potter theme.  The puja could eventually go ahead only after the
court granted it a one-time exemption. Rowling's agents tried to prevent a
Hindi film with Hari Puttar in its title from being released. They were
unsuccessful.  But they did succeed in preventing the publication of a
lexicon of Harry P otter words.

Copyright  disputes  are  cropping  up  in  the  field  of  theatre  as
well.  Last year, a Mumbai-based theatre group was rehearsing their
translation of Bertolt Brecht's The Threepenny Opera, a play which has been
performed dozens of times in India, in d ifferent languages, when they
received a communication from the agents of B recht's estate that they would
need to pay royalty before mounting the production, failing which legal
action would be initiated.  The theatre group tried to r eason with them -
they were an amateur group, the performance was not for profit, and so on.
To no avail.  In the end, the t heatre group found an ingenious way out -
they changed the name of the play, and stopped publicising that it was based
on Brecht's original.

The  irony,  of  course,  is  that  Brecht's  original was no original. It
was a reworking of an 18th century play, John Gay's The Beggars' Opera.  It
may also be noted in passing that Brecht himself died in 1956, over 50 years
ago.

More  recently,  a  senior  Tamil  playwright  alleged  that  his
well-known play written in the 1970s was being passed off by a Kolkata
playwright as his own, without even changing the name of the play.  The
Tamil playwright was not asking for royalty, he was merely protesting the
appropriation of what he claims is his work under someone else's name.

On the one hand, there is the legitimate  issue of the right to be
recognised as the creator of a particular work. On the other, corporate
entities use copyright laws to clamp patently unfair restrictions on
creators. I offer below some preliminary and provisional thoughts on the
issue of c opyright in theatre.

The Importance of Copying All  art  develops  and  progresses  through
copying. The student learns from the master by imitating (in the performance
arts) and copying (in the plastic arts). In music and dance in particular, a
student is not allowed to improvise till she is able to i mitate the master
exactly and acquires a certain mastery over the act of imitation.  Indeed,
from almost the earliest times, there has also been reproducibility.  The
Indus civilisation had seals, though I am not sure if they used casts, like
the Greeks did.  In the Middle Ages, techniques of e ngraving, etching, and
woodcuts developed. These were followed by lithographs.  The movable type
revolutionised printing, making it faster and easier to reproduce both text
and images. Photography, in the visual sphere, and sound recording
techniques, in the aural sphere, speeded up reproduction enormously.  These
techniques also helped standardise reproduction. Verisimilitude of a
hitherto unprecedented level was now possible.

Walter Benjamin makes the point that  photography, for the first time, freed
the hand. Now, the eye did all the work. For the first time, dexterity and
skill of the hand was no longer required to create lifelike images. "Since
the eye perceives more swiftly than the hand can draw, the process of
pictorial reproduction was enormously accelerated, so that it could now keep
pace with speech."1 From here, it was but a short step to synchronising
image to sound, and create film. With cinema, for the first time, the
reproduction of art was not a post facto afterthought, but built very much
into the very act of creation.  There is no "original" performance which is
recorded and reproduced.  What is r ecorded is only fragments of the whole,
and the act of creation is as much in the assembling of the fragments as in
the recording of it. The art of cinema makes absolutely no sense without its
mechanical reproduction and dissemination. In other words, for the first
time in the history of art, there is virtually no notion of the "original"
artwork.  What is seen by the spectators is a lways-already a copy.

In  cinema,  though,  there  is  still  the  n otion of the "master" print,
which is then used to make copies. If one were to make copies of copies,
there would be a loss of quality from generation to generation. This
difference is obliterated in the digital era.  Now, there is no difference
at all b etween the master (there is actually no "master") and its copy.
There is also now no limit to how many copies can be made of any work.

The  internet  not  only  accelerates  the  process of copying, it also
opens up potentialities of dissemination beyond barriers of financial
affordability and national boundaries. The internet also smashes barriers of
time in the dissemination of art. Benjamin quotes the French poet Paul
Vale'ry: "Just as water, gas, and electricity are brought into our houses
from far off to satisfy our needs with minimal effort, so we shall be
supplied with visual or auditory images, which will appear and disappear at
a simple movement of the hand, hardly more than a sign." Even the most
prescient of commentators, like Benjamin himself, could hardly have imagined
anything like the internet in the 1930s. The internet (and digital
technology in general) also enormously accelerates another development
foreseen by Benjamin (in connection with the spread of the printing press):
"the distinction between author and public is about to lose its axiomatic
character". With the internet, not only do readers become authors, but
viewers become filmmakers, and listeners musicians.  Inherent in digital
technology, then, is the tendency towards democratisation.

Reproducibility of the Unique  Performance

In the theatre, the notion of "copying" as  well as "reproducibility" works
differently than in almost any other art. The theatre actor does not learn
by copying her m aster, as a painter, sculptor, dancer or musician does
(except in "classical" forms like Kathakali, which are highly coded).  The
modern theatre actor, from the very b eginning, is encouraged to improvise.
The dialectic of theatre is that it simul taneously embodies reproducibility
as well as resists it.  It embodies reproducibility because players act out
a play several times, over time (and most often, over space as well).
However, it resists reproducibility of the mechanical or techno logical
sort.

The  act  of  theatre,  while  embodying  reproducibility, resists it at a
more fundamental level as well. It could be argued that no two performances
of a play, even by the same set of players, at the same venue, one after
another, are "copies" of one another.  There is no one, unique original or
master, which is copied again and again. Each performance is in fact a
unique performance - the pace, rhythm, tempo, feel, power, c adence, energy,
can, and do, vary over performances. Theatre is the art of the impermanent,
the transient, the here and now.

Theatre, it could be argued, is the most  "impure" of arts. It is an
agglomeration of many arts (or crafts, if you will): writing, music,
painting, sculpture, architecture, carpentry, design, tailoring, singing,
dancing, acting, and so on. Any performance of a play is always much more
than a reading of its script.  In every language of the world, a play is
always "watched", never "heard".  In other words, a theatre performance is
always sedimented - actors, musicians, designers, and so on, add their own
layers over and above the text given to them by the playwright. Not to
mention the very critical input of the theatre d irector, who welds all of
this into a single artistic piece based on her vision and " interpretation".

Theatre Resists Copyright

In  a  word,  at  a  very  fundamental  level, theatre resists copyright.  A
written and published playtext may be under copyright. However, in
performance, the playtext has always-already transformed into a sedimented
creation, the kernel of which may be a particular playtext.  However, the
same kernel may, and often does, produce two (or more) vastly different
works of art. The layers of creation that deposit themselves over the kernel
prove very hard to clearly delineate, separate, catalogue, and therefore
copyright. How can you copyright Mohan Agashe's highpitched nasal voice and
heavy yet graceful gait that have come to define the character of Nana
Phadanvis in Vijay Tendulkar's Ghashiram Kotwal for generations of t
heatre-lovers?  In performance, Mohan Agashe's acting, Bhaskar
Chandavarkar's music, Chandrakant Kale's and Ravindra Sathe's singing,
Jabbar Patel's direction, etc, all add to the kernel of Tendulkar's playtext
to transform it beyond the text.  All this complicates enormously the
question of "authorship".

In  actual  fact,  whatever  their  claims  may  be,  playwrights  are
plagiarists.  If Shakespeare is reputed to have based some of his plays on
other contemporary plays which flopped, Brecht based many of his plays on
other eminently successful plays. Many of Girish Karnad's and Chandrasekhar
Kambar's plays are based on ancient myths and tales.  Habib Tanvir has
fashioned plays out of local folk tales. One of Govind Deshpande's plays is
a rewritten version of a Tendulkar play, with characters and situations from
the original, but different politics. The history of theatre is replete with
such and similar examples.

The field of modern Indian theatre has  been  predominantly  an  amateur
field, in that most of the theatre activity in India is neither professional
nor commercial in n ature.  With an absence of corporate i nterest, and a
lackadaisical attitude of the state towards it, theatre earns, even in i
nsta nces where it is commercial or professional, very little revenue.
Therefore, models or notions of rights developed on the commercial stages of
the west have l ittle or no relevance to Indian theatre practitioners.

It  would  be  interesting  to  compile  instances of copyright/authorship
disputes in Indian theatre. It would also be interesting to see how disputes
have traditionally been settled.  One particularly striking instance that
springs to mind is from the 1970s. The director Satyadev Dubey took up
Achyut Vaze's Sofa-cum-Bed for production.  Vaze hated Dubey's production.
When he approached some other practitioners (including Vijay Tendulkar), it
was suggested to him that he mount his own production.  Which he did, and
the two productions played side by side for a while. A postscript to the
controversy is that Vaze apparently said to Dubey that if he was so fond of
rewriting other people's plays, why doesn't he write his own. Dubey took up
the challenge, and has since been writing plays as well as d irecting.

Most  directors  end  up  reworking  playscripts. In 1988, when Safdar
Hashmi wrote a play based on Premchand's story and the director Habib Tanvir
worked extensively on it, expanding scenes, editing, cutting, etc, Hashmi
felt privileged to a cknowledge Tanvir as his co-author for Moteram ka
Satyagraha. A couple of years later, when Tanvir did the same to Asghar
Wajahat's Jis Lahore Nahi Vekhya Voh Janmya Hi Nahi, Wajahat made sure that
the published version was his original script rather than Tanvir's reworked
version. It would be interesting to see how the latest spat, between the
Tamil and Bengali p laywrights I referred to at the outset, pans out.

The Wrongs of Copyright

The myth about copyright, of course, is that  it protects the creative
individual's interests.  In fact, though, it typically protects the
interests of corporate entities. Napster had to be shut down not because
individual musicians protested against their songs being downloaded for
free, but because music companies perceived a threat to their bottom lines.

Interestingly,  copyright  regimes  recognise the ownership of corporations
- which are in any case recognised as legal individuals under law - but not
communities. Thus, while the company that owns the music of the Hindi film
Hum Dil De Chuke Sanam could sue discotheques that play the song Nimbuda,
the company itself is not legally bound to pay anything to the Rajasthani
com munity from which it has stolen that song.

Copyright regimes are also designed to  typically  protect  the  blockbuster
from p iracy. However, not every novel or film is a blockbuster; and
certainly, most plays do not earn millions. My own hunch is that a number of
writers and other creative p eople would be happy to have their work read/
heard/seen without bothering too much about royalties. Once their work is
owned by a company though, this possibility ceases for them. In other words,
while copyright regimes protect blockbusters from piracy, they also,
typically, prevent non-blockbusters from being d isseminated widely.

         The idea of copyright itself needs to be  critiqued because it
         obstructs the free flow and growth of knowledge. It is in
         opposition to copyright regimes that movements for free software
         (as opposed to proprietary software), for copyleft and creative
         commons licences have grown.  Playwrights and other
         theatre-persons need to study these options.

The Alternative to Copyright

In most cases, laws are framed to regulate  practice on the ground; practice
does not evolve out of nowhere simply because there is a law on the books.
Similarly, law adapts to changes in practice and techno logy. Old law has to
cede ground to new law if it goes against common practice. Till 1945,
according to American law, the right to private property in land extended to
all the space above the land, going till infinity.  In that year, the
Causbys, a family of farmers in North Carolina, sued the federal government
because low flying planes scared their livestock, but the judge dismissed
the case because "common sense revolts at the idea" that planes should fly
on an alternative route because the right over land included the right to
space above it.2 The question, then, is: can the practice of theatre lead to
changes in law that are in harmony with realities of Indian theatre?

This  may  seem  utopian.  But  there  are  some leads to look at. The Free
Software Movement is one. If I were to develop new software, I can cede the
copyright over that to the Free Software Foundation, which then makes my
software freely available to others, while ensuring that free software is
not stolen and made proprietary, or that other software that is d eveloped
out of my software is also made freely available.

A group of documentary filmmakers and  lawyers in the US have worked on a
Filmmakers' Statement of Best Practices in Fair Use.  This has three
purposes: it acts as a source of information for documen tary filmmakers
(since they are often misinformed about copyright); it acts as a source of
information for the insurers, the broadcasters, the distributors, and others
(in a word, "gatekeepers"); and if a filmmaker operating within this code is
actually subjected to a lawsuit, it would act as a tool of defence.3 Maybe
it is time to think of something along these lines for theatre-persons in
India.

In  the  end  though,  the  challenge  is  to  create  an  alternative
culture of trust and understanding among theatre-persons. All of us in the
theatre have drawn, time and again, from the large, rich and diverse pool of
plays and theatrical traditions from across the world.  For this to be
nurtured and further enriched, it is imperative that the pool itself be
protected, not the adventurous swimmers in it.

Notes

1 Walter Benjamin, "The Work of Art in the Age of Its Technological
Reproducibility" (third version) in Howard Eiland and Michael W Jennings
(ed.), S elected Writings, Vol 4, 1938-1940 (Cambridge and London: Harvard
University Press), 2003.

2 Quoted by Lawrence Lessig, Free Culture: How Big Media Uses Technology and
the Law to Lock Down Culture and Control Creativity, available online at
http://www.free-culture.cc/.

3 See Contested Commons/Trespassing Publics: A Public Record (New Delhi:
Sarai), 2005, p 105.

--
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Sent from Pune, MH, India
&quot;I hear and I forget. I see and I remember. I do and I
understand.&quot; - Confucius

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