Copyright Protection versus Artistic Freedom


A theatre is staging a play by a living playwright and indicates the name of the author as well as the title of the original play; however, the play has been substantially abridged contrary to the intentions of the author. What are the copyright remedies available to the author? What is the position of the director of the play who is the author of the abridged version?

Any substantial abridgment of any literary (including dramatic) works is naturally subject to the author’s consent. Without the consent, any abridgements and modifications are clearly unlawful as they infringe the author’s moral rights. Under Article 6bis (1) of the Berne Convention such an abridgement could amount to distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to the author’s honor or reputation.

What degree of artistic freedom does the director or literary manager as the author of the specific version of the play for staging enjoy? Is it really a free interpretation process? This tension between copyright and the “production” process gives rise to a “grey area”, which pushes the boundaries of the copyright protection.

Even though the Charter of the Fundamental Rights and Freedoms enshrines the fundamental right to artistic creation, the law (be it the Copyright Act or otherwise) provides no further specification of the boundaries of the artistic freedom. It is a truism that any staging of a play only rarely does without necessary modifications of the text and its adaptation for the specific purpose. It must be stressed that routine modifications of copyrighted work in relation to the lawful use of the work under a valid license are permitted (even without the author’s consent unless the consent has been reserved). The problem is that no one knows where such a boundary of the routine modifications lies. Unfortunately, the Copyright Act does not take the specific aspects of staging plays into account.

Any major modifications involving the moral rights always require an author’s consent. Adaptation, which requires the author’s consent, usually occurs where important characteristics of the copyrighted work are modified as a result of the creative process of the director or literary manager, i.e. irrespective of any specific minor modifications caused by the performance of the actors. In such cases, the author’s opinion will be crucial as to the influence on the important characteristics of the play, especially whether the major message of the play, its key parts or other characteristic motives and features are changed.

For any disputes, the judgment of the author will be highly relevant. The Copyright Act lays down no specific boundaries of the artistic freedom of the director and other performers in relation to the performance of copyrighted works. In this respect, they have no such freedom under the Act. The only effective tool to counter the strong copyright protection lies in a broad and well-phrased consent to account for the author’s moral rights. Some experts believe that such a consent may be revoked.