January 30, 2014

Like most good theater critics, I am a theater maven, a theater junkie, a theater lover. I went into theater criticism in order to spread the word about good work – to support quality theater – and to help audiences find shows they would like while helping shows find audiences they will please. 

As theater critics, we are often the proponents of the interests of the theater community … of theater itself. Great critics have championed the cause of the importance of theater as an institution as well as of the importance of quality in the theater.

Now, as the civilized world makes a transition no less fundamental and far reaching as it did when Gutenberg introduced movable type to Europe, the interests of the theater community need our voice more than ever before.  

Because of our access to the public through the papers, magazines, radio and television programs, websites and blogs for which we write, we may well be the best, if not the only, voice capable of making the case for theater's interests when changes in the laws governing intellectual property are considered, and it is certain that changes are coming. 

We should be diligent in monitoring developments in our own nation's law making processes and in the international arena and careful in our analysis of these events in order to identify issues that could help or hinder future theatrical creation. And we must be vocal in bringing the fruits of our watchfulness and our analysis to the attention not just of the theater community but of the general public and the powers that be. 

Remember that there will be a well paid army of advocates for corporate interests as legislators, regulators and adjudicators take action in a changing digital age. And there will also be somewhat less well paid, but nonetheless vocal advocates for each new invention or application. New genres and new technologies will have their champions and older, newly-passé technologies will have theirs as well. 

Theater needs and deserves spokespeople who pay close attention to its interests and who give them voice in a time of transition such as this. It is a time of fundamental shifts and accelerating rates of change.

The rate of change is astonishing. My wife and I just celebrated our thirty-eighth wedding anniversary. How the world has changed in those thirty-eight years! When we were married there was no Apple Computer, Microsoft had not yet released Windows, there was no such thing as a web browser and the first instance of a spam email was still two years away.

But just as the scribes in monasteries of the fifteenth century couldn't uninvent the printing press, so we can not uninvent the computer, the internet or any of its emerging technologies. 

And technology isn't the only thing that keeps changing. So, too, does the market for intellectual properties and the audience that wants them. And the institution of theater itself adapts as well. 

Theater is not a monolithic thing. It encompasses huge commercial entities, small community companies, single creators struggling for even a small audience and all manner of collaborations, combinations and cooperations. Each has its own set of interests, as well as sharing the interests of the wider community. 

Those of us who sit in darkened halls nightly to see what at least our local segment of that community is producing – and who gather from time to time to broaden our understanding at festivals and symposia such as this – are in a unique position to provide the crucial commentary demanded by the times. 

Prior to the revolution in printed communication writ by Mr. Gutenberg, the copyist was seen as the creator of a product, not the author of the words the copyist copied. That clearly was insufficient to the new reality. From the recognition of that insufficiency came the concept of "copyright." 

Now we face another new reality. We must realize that the concept of the author as the owner of a "copyright" may become useless in a world where copying is ubiquitous, instantaneous, transparent and all but uncontrollable.

It wasn't long ago that theaters first felt the need to tell people that no recording of a performance was allowed, and that they should turn off their cell phones. What in the world will they do when something akin to Google Glasses makes it impossible for anyone to tell when anyone else is recording anything? 

Indeed, in a new age when each and every performance of a piece, be it a song or a scene or a speech or a play, can be captured and retained by each and every person who witnesses it, might it not be the end of the idea of a "record" as something experienced by thousands or millions in the same edition? 

How will copyright deal with either the underlying work – the song or the speech, the lyric or the plot – or with the performance of the actress, singer or instrumentalist or the display of the works of designers? These are questions that are very different from the perspective of, say, the playwright than from the view of  the author of a computer program. Yet computer programs are copyrightable just as are plays.

As the spokespeople for theater, theater critics should be explaining to the public – and to adjudicators, regulators and legislators – the ways in which decisions will affect theater.

There is a growing recognition that it is time to move to a new concept, just as it was time when Gutenberg unleashed a new capacity for human intellectual exchange. But who will look to the interests of the institution of theater as the new concept is developed?

We should!

While we search for, and I hope, move toward a new concept, we theater critics – as the spokespeople for the theater community – need to be diligent in our assessment of the pros and cons of various proposed changes in law and in our analysis of the impact of various changes in technology and society. I'm not wedded to any particular concept as long as it is a new one well suited to the needs of the age that is now dawning. It must be flexible enough to accommodate inventions yet undreamed and actions as yet impossible. 

I don't know what it should be for certain, but I do know that it certainly shouldn't be based on copying – for the very concept of a "copy" is all but doomed. My own suspicion is that the new concept might best be the replacement of "copyright" with something we should call "useight." It would call for the compensation of the creator of an intellectual product for its use not for a mere copy. 

The determination of how that use is defined – whether the test is commerce or context, size or purity – will be a major battle between economic and cultural titans. We must keep the interests of the theater community from being completely obscured in the dust of that battle.

Remember that there were really two purposes for the now outmoded model of "copyright" which has been subverted into a crusade against "piracy" – the stimulation of art and the securing to artists the fruits of their labors. Neither purpose is good or bad for theater on its own, so long as the two goals are kept in balance. But when either becomes dominant, it has the potential to do real damage to the cause of theatrical creativity.  

Siva Vaidhyanathan tells us in her wonderfully titled book Copyrights and Copywrongs "American copyright law at the beginning of the (twentieth) century tilted in favor of consumers at the expense of producers" but that "in an attempt to redress that anti-producer balance" decision-makers "have succeeded in tilting the body of law dangerously the other way."  Of course, here she has a broad definition of a "producer" which would include authors and other creators, and not just people or corporations carrying the title "producer."  

It seems to me that this "tilt of the body of law" has become true not just in American law but internationally as well.

As theater's spokespeople, theater critics need to learn from the past. From what Joseph Lowenstein called "the history of mental making." There are lessons from the post-Gutenberg era which we need to apply to the post-Bill Gates/Steve Jobs era. 

One – For the sake of theater, we need to encourage a recognition that you don't need to control the copying if you control the using. After all, it is the using of intellectual property to make money that is at the heart of the matter. So, if you switch the control to the use – a much more identifiable and trackable activity – you increase the potential to be effective and, for that matter, to be viewed by the using public as reasonable. 

Two – There is no way in an age of such rapid change in technology for any law to react swiftly enough to new concepts in either mechanics or content. For the sake of theater, we need to sound the alarm when a legal concept of insufficient flexibility gains momentum in the development of a new regime of intellectual property law. 

Three – Theater as an institution has elements that would benefit from longer periods of protection of intellectual property and others that would benefit from shorter periods. We needn't side with either, but surely we should call for some balance. The period that copyright protects has grown over time from 14 years (renewable for another 14) in the Statute of Anne in 1710, the first "copyright" statute, to the current 70 years after the death of the author. At which point does the interest of those who want more works to be freely available for either production or adaptation balance with the interests of those who want to profit from that which has already been created? 

Four – We should raise the question: Is there any reason for the period of protection to be the same for all genres of intellectual property? Should protection extend for the same number of years for a song as for a movie, for a play as for a painting, a dance as for a poem or for different aspects of the same theatrical effort – play writing, song writing, staging, choreography, set, lighting, sound and/or projection design, etc. When it comes to creativity, one size does not necessarily fit all. 

Five – We should also ask why the period of protection must be determined just by genre. Would it not be of value to society if the period of protection for intellectual property was somehow connected to its use? Should a work that has found a large audience be protected longer than one that has failed to find an audience? Wouldn't the at least initially less successful work have a better chance to succeed if the law provided a second chance? Theater's spokespeople – we critics – should ponder the impact of such changes on the institution of theater and then bring the results of that thinking to the attention of the public and the powers that be.

Six – While the period of protection has grown, so too has the list of things that are protectable. That "Statute of Anne" applied only to books. The first US copyright statute applied to books, prints and charts. Over the centuries protection has been extended to paintings, drawings and sculpture (1870) music (1891) movies (1912) computer programs (1964) sound recordings received their own section of the law in 1971, and even boat hull designs were brought in as "works of utility" in 1998. Which categories of "mental making" are relevant to the theater community and who benefits from their inclusion or exclusion? Theater critics should be presenting the pros and cons involved when the changes in the scope of coverage are considered.  

Seven – While the search for a new concept for intellectual property protection proceeds, we should look to other types of property law for features which might be of benefit to the theater. 

One such feature deserving of careful consideration would be the concept of "abandonment" such as you would find in real property law. If one "abandons" his real property, he can loose his right to control it. But if one lets intellectual property lie fallow he continues for as long as the copyright protection runs to have the right to prohibit its use. 

What, though, of works from that very collaborative of art form – theater? Here it is often difficult or impossible for even one who owns a copyright – or thinks she does – to know with whom she shares that right and, thus, who to approach if she wants to use it herself or to authorize its use by others. 

Wouldn't it make sense to provide in law that anyone who wants to use an old but still protected work can use it after undertaking an honest effort to determine the rights holders? I don't mean that the new user should not have to pay a royalty – just that a showing of a certain level of effort – due diligence, if you will – would prevent the assessment of damages. Royalties could be determined in the case of a "resurrected work" by something akin to the Copyright Royalty Tribunal set up to determine royalty rates for such things as jukeboxes and cable television programming.  

– – – –

To bring this full circle, lets look at what the digital shift has done to the world of theater critics themselves. 

Once it was easy to figure out who was a critic and who was not – Walter Kerr was a critic. Brooks Atkinson was a critic. We know, because they were paid for their criticism by the same people who printed it. They were professional critics. 

But those days seem to be a thing of the past – with shrinking coverage of theater in a shrinking newspaper industry, where papers and magazines as well as broadcast media in major cities worldwide have dispensed with the "luxury" of employing a critic full time.  

Could we be at the end of the era of theater criticism as a profession? Is it possible for there to be a professional theater critic in the digital future? By which I mean "can you make enough money just doing this that you can put kids through college?" 

I don't know. I'm not here to predict the future – just to comment on the challenges today's emerging technologies pose. But one thought is that the changes in the world of theater criticism pose a very real challenge to the groups who convened this symposium – IATC and its constituent organizations such as the Indian Section and ATCA in the US. 

How do we establish norms for the activity and help spread competence and adherence to standards throughout our community – what we once called "professionalism" – in order to earn, maintain and deserve the respect of the larger theatrical community including the audience and the makers of the art about which we write?

We in the American Theatre Critics Association struggled with this beginning in 2010 when our Executive Committee formed a subcommittee to consider the definition of "professional" as it applies to eligibility for membership in our organization. I had the pleasure of serving on that subcommittee … and it was a pleasure in part because we met at Hanifan's Pub in New London, Connecticut during a conference at the nearby O'Neill Theatre Center. 

Our website now invites critics to join us using the following language:

"Membership is open to all who review theatre professionally, regularly and with substance for print, electronic or digital media. ATCA understands 'professional' normally to mean you are paid for your reviews and there is some editorial or other supervision of your criticism – e.g., it is not disseminated only on a personal, unsupervised website. But even such websites may qualify you for membership upon further review by the membership committee, considering such measures as substance, reputation and track record." 

As the world of the theater changes, and we attempt to speak for it in the face of those changes, we also face the challenge of changes in our own world. We need to address questions such as  

    – What are the rights and duties of participants in website coverage of theater? 

    – What is the role (or status) of the bloggers and twitterers and facebookers?

    – What challenges are coming due to technologies that are even now beginning to undermine blogging and twitterring and FBing? 

The International Association of Theatre Critics and the American Theatre Critics Association can take the lead in seeing to it that theater critics can address these questions and fulfill the responsibilities of which I have spoken by instituting programs of professional education. 

That program should include basic introductory courses and also offer continuing professional education. Such a program could raise the standards for criticism and improve our reputation and our ability to speak for the greater theater community. 

Who Speaks for Theater in the Digital Age? 
(We Should!) 

Presentation by Brad Hathaway, American Theatre Critics Association

Theater & Theater Criticism in Transition
International Association of Theatre Critics Symposium
Presented as part of the 
International Theatre Festival of Kerala,

Thrissur, India​​​​​​