INTERVIEWS AND AUTHORSHIP

In general, interviews take place under the direction of the interviewer who selects the questions and themes to be discussed throughout the interview as well as deciding when to end with one line of questioning before moving on to the next. This may give the impression that the ownership of the interview should exclusively belong to the interviewer.

However, many would argue that interviews are only interesting to readers or listeners for the interviewee’s answers. As such, it is the participation of both individuals that gives an interview its substance and value. For this reason, interviews are perhaps better understood to be the work of two contributors: both the interviewer and interviewee. Indeed, just as an interviewee’s responses follow the lead of the interviewer’s questions, an interviewer’s questions are often influenced by preceding answers given by the interviewee. The input and contribution of both individuals can become so intertwined throughout the course of the interview that they come to be regarded as a single collaborative work. As such, in most instances, an interview that qualifies for protection as a literary work will typically be regarded as a work of joint authorship, jointly owned by the interviewer and interviewee (see Case File #22 for more on joint authorship).

The fact that only one of the two contributors may be responsible for recording the interview (most often, the interviewer) does not affect the recognition of joint authorship of the interview itself. It does not matter who fixes the work in some material form, so long as fixation takes place (section 3(3)).

While the interview may be a work of joint authorship, as we noted above, the recording of the interview will also be protected as a separate copyright work, whether as a sound recording or a film. The person who arranges and controls the making of the recording will be the author and the first owner of the copyright in the recording. Typically, this will be the interviewer (or the organisation or company for which they work).

PERFORMERS’ RIGHTS IN INTERVIEWS

As explained in Case File #26, any performance of a literary, dramatic or musical work, improvised or not, is eligible for protection under the regime of performers’ rights. That is, while interviewers and interviewees jointly create a literary work (the interview), at the same time they are also performing that work: as such, they would be regarded as ‘performers’ benefitting from performers’ right.

Or at least, this appears to be the situation under the current law in theory. In practice, however, whether an interviewer and interviewee are the performers of their own (improvised) literary work has not been decided in court. If the question is ever litigated, it is possible that a court would adopt a definition of ‘performance’ that excludes the performance of improvised literary works in general, or interviews in particular. This is because the CDPA currently defines a ‘performance’ in relation to an already existing work. That is, section 180(2)(c) states that a performance means ‘a reading or recitation of a literary work’. A literal reading of this provision suggests that the literary work must already exist before it can be performed. A court may decide that an interview cannot be regarded as ‘a reading’ or ‘a recitation’ of a work, since no existing work is in fact being read or recited: rather the literary work (the interview) is being created at the same time as it is being performed. If this interpretation were to prevail, neither interviewers nor interviewees would be able to claim protection under performers’ rights.