Note On Copyright And Creative Commons In Theatre

[Dr.Mahesh Mangalat]

Note On Copyright And Creative Commons In Theatre


by Sudhanva Deshpande.


1. For as long as there has been art, there has been 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 imitate the
master exactly and acquires a certain mastery over the act of
imitation.

2. From almost the earliest times, there has also been
reproducibility. The Indus civilization had seals, though I am not
sure if they used casts, like the Greeks did. In the Middle Ages,
techniques of engraving, etching, and woodcuts developed. These were
followed by lithographs. The movable type revolutionized printing,
making it faster and easier to reproduce both text and images.

3. Photography, in the visual sphere, and sound recording techniques,
in the aural sphere, speeded up reproduction enormously. These
techniques also helped standardize reproduction. Verisimilitude of a
hitherto unprecedented level was now possible.

4. Walter Benjamin ('The Work of Art in the Age of Its Technological
Reproducibility') 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
life-like images.

5. "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" (Benjamin). From here, it was but
a short step to synchronizing 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 recorded 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 always-already a
copy.

6. In cinema, though, there is still the notion 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. In other words, there is still some difference between the
master and the copy. There is also a limit to how many copies a master
can generate without itself beginning to degenerate. This difference
is obliterated in the digital era. Now, there is no difference at all
between 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.

7. 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 Val�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.

8. 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 democratization.

9. 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 master, 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 beginning, is encouraged to improvise.

10. The dialectic of theatre is that it simultaneously 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 technological sort. To date, theatre is something that
is most typically seen live. Recordings of theatre performances are
sometimes made, and even sold commercially, but never in the way that
recordings of live music concerts are sold.

11. 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 in fact "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, cadence, energy can, and do, vary over
performances. Theatre is the art of the impermanent, the transient,
the here and now.

12. Some arts are "pure." The purest of all arts is perhaps music, in
particular Hindustani vocal music. Not only is it pure in the sense
that it can, theoretically, exist without any instrumental
accompaniment (and is, in fact, performed with fairly minimal
instrumental accompaniment), it is "pure" also in the sense that it
has least dependence on words or images. It is the expression of
abstract thought. Even when Khyal singing, for instance, uses words or
phrases, through repetition as well as conventions of articulation,
the singer draws the listener's attention away from the meaning of the
words themselves. In forms like Dhrupad, of course, even the notional
use of words or phrases is absent. The Hindustani singer improvises in
performance within the notational framework of the raga, and the
stylistic framework of the gharana. However, both these frameworks are
in practice fairly open-ended.

13. Theatre is at the opposite end of the spectrum. It 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 director, who welds all
of this into a single artistic piece based on her vision and
"interpretation." Indeed, what makes theatre theatre is not only its
impermanent nature, but also the possibilities of interpretation it
opens up.

14. Theatre is the one art that most easily takes to new technological
developments. Thus, for instance, if Piscator (in Germany) and
Meyerhold (in Russia), in the immediate aftermath of the 1917
Revolution, made use of projected film newsreels, recorded speeches,
mechanical devises like moving ramps and so on, the modern theatre
artistes are taking to video projections (of both recorded and live
action), installation art, sophisticated sound mixing technologies,
and so on.

15. This has a very important implication. The play in performance
ceases to be the product of a playwright's creative labour alone. This
is the reason that the best-written plays of all time can be disasters
in particular stagings, or vice-versa: a very ordinary play can attain
great artistic heights in the hands of the right players.

16. In a word, 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 high-pitched 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 theatre-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."

17. 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.

18. Indian theatre has seen, since the last quarter of the nineteenth
century, a very large number of translations/adaptations. Shakespeare
was translated widely, sometimes in ways that might amuse the modern
reader. For instance, Narayan Bapuji Kanitkar published Shashikala
Ratnapal, his translation of Shakespeare's Romeo and Juliet, in 1882.
However, he changed the end of the play, from tragedy to happy end.
The reason: because a tragic end belies the belief that God is kind
and forgiving. He did this, he claimed, on the advice of many friends.
He was referring, among others, to "Nyaymurti" Mahadev Govind Ranade
and "Lokhitvadi" Gopal Hari Deshmukh. Ranade felt that the play ending
on "shok-ras" is contrary to "Marathi kavyapadhdhati." In any case,
since the translator had rectified two other flaws in the original -
that the lovers fall in love while still rather young, and that some
amount of "phajilpana" (naughtiness) is involved in it - a tragic end
was unwarranted. One thing, however, has remained unchanged since
then. When Indian theatrepersons translate/adapt a playwright from
another culture, we make him our own. Shakespeare and Brecht, Chekhov
and Fo, Ibsen and Miller, all seem to us our own.

19. 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 nature. With an absence of
corporate interest, and a lackadaisical attitude of the state towards
it, theatre earns, even in instances where it is commercial or
professional, very little revenue. Therefore, models or notions of
rights developed on the commercial stages of the West have little or
no relevance to Indian theatre practitioners.

20. Theatre, because it is here and now, because it resists
reproducibility, has had little to do with the internet for a very
long time. There is no Napster equivalent on the web for theatre.
There is no site (to the best of my knowledge) which posts videos only
of plays, or where you could download entire plays. There aren't even
very many play script banks on the web. All that you get are
programmes of performances, and even those (at least in India) are
often incomplete, erratic, and concentrated in the metros. You cannot
even get details of performance spaces (size, dimensions, facilities,
rentals, location, etc.) for any Indian city on the web.

21. There have been stray incidents, however, where being on the
internet has proved a nuisance for performing groups. A theatre group
in Mumbai was recently sent notice by the estate of a dead Western
playwright, demanding royalties for an adaptation of his play that
they were doing. This is just the beginning. We are likely to see more
such instances. After all, J.K. Rowling's lawyers did sue a Puja
pandal in Calcutta because it was based on the Harry Potter theme.

22. 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.

23. Interestingly, while copyright regimes recognize the ownership of
corporations - which are in any case recognized as legal individuals
under US law - but not communities. Thus, the company that owns the
music of the Hindi film Hum Dil De Chuke Sanam could sue discotheques
that play Nimbuda, the company itself has to pay nothing to the
Rajasthani community from which it has stolen that song.

24. Copyright regimes are also designed to typically protect the
blockbuster from piracy. 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 people 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 disseminated widely.

25. 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 licenses have
grown. Playwrights and other theatrepersons need to study these
options, so that corporations do not come in the way of the wide
dissemination of their work.

26. 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
technology. 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. The question, then, is: can the practice of theatre
lead to changes in law that are in harmony with realities of Indian
theatre?

27. This may seem utopian. But there are some leads to look at. The
Free Software Movement in 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 developed out of my software is also made
freely available. Similarly, one can think of a body like the India
Theatre Forum becoming the repository of rights over playscripts,
etc., which are made available by it, perhaps via the internet, to the
larger body of theatrepersons in India and abroad under the condition
that the material not be used in proprietary ways.

28. 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 documentary
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 (see Contested Commons/
Trespassing Publics: A Public Record, New Delhi: Sarai, 2005, p. 105).
Maybe it is time to think of something along these lines for
theatrepersons in India.

*The writer is an Actor and Director with Jana Natya Manch, Delhi. He
works as an Editor with LeftWord Books First Presented at the National
Free Software Conference, Cochin, 15-16 November, 2008.