Chronicle Editor
Aleck Ncube, Intellectual Property
IN this two part series, I focus on the role of Intellectual Property on the music industry. Cultural industries, such as music, offer considerable growth and export potential to developing countries. Not only is the basic resource, musical talent, abundantly available, but regional musical tastes offer significant opportunities to establish markets for producers of music in Zimbabwe.
However, talent alone is not sufficient to build a competitive music industry, and in most developing countries it has suffered from weak institutional and political support, low levels of entrepreneurial capability, low value-added, over-dependence on foreign manufacturing and distribution, and massive copyright infringement.
What is a music copyright?
Copyright is a form of legal protection given to many kinds of created works such as musical compositions or songs, lyrics, records (CDs, DVDs etc.) poems, books, films, TV shows, computer software andeven commercials.
For a work to be protected under copyright, it must be:
l “Original”, which means that it was not copied from any other source
l “Fixed in a tangible medium of expression”, which means that it exists in some reasonably permanent or stable form so that a person can perceive it and reproduce it
l Have a minimum degree of creativity.
For the musician, copyrights can protect both songs, which consists of a melody and includes lyrics if the song has words) and recordings (CDs, mp3s, DVDs and any other recording). The “fixed” requirement means that there is no protection for a song that is only in your head.
A song may be “fixed” by writing it down, recording it (even on a handheld recorder), or saving it to a hard drive on a computer. Playing a song live does not meet the “fixed”requirement. But, if you record the live performance, you have now “fixed” the song.
Once an original work is fixed in a tangible medium, the creator has copyright protection automatically. Though registering the work with the Copyright Office may be desirable, it is not a requirement to obtain copyright protection.
The rights of the Copyright Owner
The owner of a copyright has the exclusive rights to do the following:
Reproduce the work: The rights to make copies of the work, such as theright to manufacture compact discs containing copyrighted sound recordings.
Distribute copies of the work: The right to distribute and sell copies ofthe work to the public.
Perform works publicly: Copyright owners of songs (but not owners of sound recording copyrights) control the rights to have their song performed publicly.
Performance of a song generally means playing it in a nightclub or live venue, on the radio, on television, in commercial establishments, elevators or anywhere else where music is publicly heard.
Make derivative works: A derivative work is a work that is based onanother work such as a remix of a previous song or a parody lyric set to a well-known song.
Perform copyrighted sound recordings by means of a Digital Audio Transmission: This is a right recently added by Congress that gives copyright owners in sound recordings the rights to perform a work by means of a digital audio transmission. Examples of digital audio transmissions include the performance of a song on Internet or satellite radio stations.
Display the Work: Although this right is rarely applicable to music, one example would be displaying the lyrics and musical notation to a song on a karaoke machine. No one can do any of the above without the permission or authorization (usuallygiven in a license) of the owner of the copyright.
The copyright term
The length of time that a work is protected by copyright is the life of the author plus 70 years. That means for the entire lifetime of the author and 70 years after the author dies, the copyright is in force.
Copyright Notice
Although music copyright owners are not required to place copyright notices on their releases, it is highly recommended that they do so because:
l You want fans of the music to be able to contact you with any inquiries regarding licensing, live performances etc;
l By placing a copyright notice on the album you prevent anyone who has illegally copied the work from claiming that they did so innocently, which would enable them to pay reduced damages should a court determine that they have infringed your copyrights. Copyright notices for musical works should include the copyright symbol © (the letter C enclosed in a circle) or the word “copyright” followed by the year of publication and the name of the copyright claimant (ex: © 2018 Kozekulunge Music Publishing).
Copyright ownership
The copyright in the work is owned by the author, who can transfer it to anyone else, but the transfer must be in writing. The owner can also license the work, which means giving someone certain rights to use their music without giving them actual ownership of the copyrights.
The exception to this is a “work made for hire.” If the author creates a work of music while an employee of an employer, and as an integral part of the employment (i.e. it is his job to create the music) then it will be considered a “work made for hire.” The copyright in a “work made for hire” is owned by the employer. The second kind of “work made for hire” is a work that is specially ordered or commissioned for use as one of nine types of works identified in the Copyright Act. For musicians, a song that is recorded specifically for inclusion on a compilation or in a motion picture or other audiovisual work may under certain circumstances be considered a “Work Made for Hire.”
Internal band agreements
In order to avoid future misunderstandings, a music band should have an internal agreement between all of the band members, which sets out how the band is going to conduct business together. This agreement should be created as soonas possible after the band’s formation when the band members are on friendly terms and can negotiate in a level headed manner.
One of the first decisions to be made is whether the band will create a corporation or a limited liability company to operate their business. If so, an internal band agreement will still be required, but it will be described as a “Shareholder Agreement” or “Members Agreement.”
The agreement should be in writing and cover topics such as: ownership of the band name, who owns and controls copyrights, the division ofthe bands assets and income (from live performances, touring, record contracts, publishing deals etc), who, if anyone, is to act as the band’s leader, what are the responsibilities of each band member and what happens when there are disputes, someone leaves the band or the band breaks up. In the next article, I will look at sources of income for musicians as they seek to benefit from their creativity.
l Aleck Ncube is an Intellectual Property scholar based in Bulawayo. He can be contacted on Mobile: +263712374408 Skype: Matintas1 Twitter: @aleckncube Alternative E-mail: [email protected]
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