Can There Be a Performance Right in a Graph?

This Kat had no business being awake at 3:00 am. For his sins, he began to listen to a podcast of a business interview program produced by one of the world's largest media conglomerates. One of the main ways by which prospective interviewees are brought to the attention of the interviewer is to provide the interviewer with a copy of the latest research report that the prospective interviewee offers to its customers on a subscription basis. In conducting the interview, the interviewer will then usually make reference to the interviewee's research report, often supplemented by a brief summary of this report. This summary will usually be a sound-bite synopsis of the main points of the report, but sometimes it involves orally describing a chart, table or graph set out in the report. Whatever the nature of the interviewer's treatment of the report, the interviewer will invariably follow-up by saying something along the lines of the following:

"Listeners, don't contact me and ask for a copy of the interviewee's research. We protect the copyright of our interview guests." 

My immediate response was to think--"how admirable of the interviewer, putting the interviewee's copyright protection first".  Stated otherwise, what he meant is that he won't scan the report for the listeners of the program; if you want to see the entire text, take out a subscription with the interviewee. But, as I began to push 4:00 am, I began to wonder -- what about the interviewee's public performance right? As a matter of intellectual curiosity, had the interviewer done anything that might affect the interviewee's public performance right in his report?

Pushing 4:30 am, two thoughts came to mind. First, there is the possibility that the interviewer's oral summary of the text might be deemed a public performance. While possible in principle, the likelihood seems low, very low. Given the brevity of the summary, either the summary amounts to the interviewer's own expression of the underlying ideas contained in the report and/or it is an immaterial taking of the interviewee's contents. And the interviewer may well have said something to the interview such as "I assume it will be ok if you I refer to your report during the interview", to which the interviewee said to himself: "OK? You can't refer to it enough! Just make sure that you get my conclusions right and your pronounce my name correctly."

More interesting for this Kat is the second possibility--might there not be a public performance by the interviewer with respect to the graphs/charts/tables found in the report? Take the situation in which the interview refers to "Graph 1", which sets out the trend for sales in a certain industry for the period between 1995-2010. The interviewer states, "Listeners, what a great V-shaped graph, with the quantity of sales on the x axis and the year on the y axis, with the high points both in 1995 and 2010, and the low point in 2005." This is not a sound-bite summary of a lengthy discursive text, but a reasonably detailed oral description of what appears in the graph. On the other hand, can anyone claim originality in a V-shaped graph; any graph?

It is now 5:15 am and I begin to break out in a cold sweat: Is it, or is it not, a public performance, of Graph 1? I say to myself that it might depend upon whether the applicable local law treats a graph as an artistic work (for which probably no public right exists) or a literary work (regarding which the public performance right will apply).

It is now 6:00 am and all I want to do is catch a few moments of rest. But Mrs. Kat reminds me that it is time to get up -- "a new day", in her words. Off to work, I listen a new podcast broadcast, where the interviewer begins to describe the housing market for a certain region from 2008 to the present. "It is a perfect hockey stick", he tells us. A public performance of the interviewee's Graph 2, or not? Not a "new day", but copyright déjà vu, something like Bill Murray and Groundhog Day (performance right is available).