COPYRIGHT AND RELATED RIGHTS

Bit2Music Business Blog

COPYRIGHT AND RELATED RIGHTS


‘Copyright’ is one of the better words in the English language in that it means exactly
what it says. It is the ‘right to copy’. If an artist writes a song or makes a recording no
one else has the right to make copies of it without the artist’s permission.

With the
parallel evolution of technology and law, copyright has evolved to cover control by the
author of other uses of a work such as public performance, broadcasting and distribution.

Traditionally the term ‘copyright’ refers to an author’s works whereas rights of
performers, phonogram producers and broadcasting organisations are usually referred
to as ‘related rights’ or ‘neighbouring rights’ but in essence they are all forms of
intellectual property rights.

In some countries such as the UK and the US related
rights are regarded as another form of copyright, but for the purposes of this
publication we will define the rights of performers, phonogram producers and
broadcasting organisations as ‘related rights’.

One has to go back to the invention and evolution of the printing press in the sixteenth
century to find the first regulations concerning copyright. The right to copy books was
limited to certain copyright holders.

The first real copyright legislation came along in
1710 in England but it was not until the mid-nineteenth century in France that modern
copyright law began to take shape.

One of the main factors to be understood is that there are two systems in law.
The system applied in continental Europe and which originated in France is referred to
as civil law whereas the English legal system is referred to as common law. Civil law
systems place far greater emphasis on the rights of the author (songwriter, composer
or author of the lyrics) referred to as droit d’auteur, whereas common law systems put
more emphasis on the concept of copyright ownership.

The civil law, droit d’auteur, treats the rights of authors almost in the same way as human rights, whereas the
common law system is more focused on the economic issues.
As England ‘spawned’ the legal systems in the US, Australia, Singapore etc. as former
colonies, the common law system is also to be found in those territories.

The interesting
thing to note here is that in the UK, Scotland operates under the civil law system
whereas England, Wales and Northern Ireland all operate under the common law
system. Similarly in Canada the French-speaking region of Quebec operates under civil law
whereas the rest of Canada, with British roots, operates under the common law system.
In both cases one thing is true: the legislation of rights for authors had over a 100-year
head start on those for performers.

As a result the rights of authors tend to be much
stronger and last longer than those for performers. For example, one of the most
important income streams for performers at the beginning of the 21st century is the
income from public performance on radio.

This right means that every time a radio
station plays a record, it must pay the phonogram producer and the performers who
performed on the recording in addition to the publisher and the author of the work.
Most countries have incorporated this right as harmonised by the WIPO Performances
and Phonograms Treaty 1996 (WPPT).

However under the WPPT, Member States have
the right to opt out of this provision. The largest music market in the world, the US,
decided to do this and at the time of publication, it still has no public performance
right for performers or phonogram producers when records are played on free-to-air
radio. The US does, however, have a digital public performance right if the record is
played on satellite radio or over the Internet.

For free-to-air radio broadcasts in the US,
which is by far the biggest sector, the author and the author’s publisher receive
payment but the performers and the phonogram producers do not.
Also, the duration of rights tends to be considerably shorter for performers and
performances than for authors’ works.

In the European Union (EU), for example, the
duration of rights protection for performers and performances is harmonised at 50
years after first release of the phonogram whereas the duration of rights for authors is
70 years after the death of the author. In reality this could be as much as 150 years if
the author wrote a work at age 15 and died at the age of 95.

In other words the
author’s rights can last up to three times longer than those of a performer. The reason
for this is entirely historical in that recording devices and radio only came along at the beginning of the 20th century, so the rights for performers and phonogram producers
have a considerable amount of catching up to do.
International agreements for authors’ rights first came into being in 1886 with the
creation of the Berne Convention for the Protection of Literary and Artistic Works.
Since then it has been updated seven times, most recently in 1971. As of July 2007,
162 countries had signed the Berne Convention.

Two other international treaties, The
World Trade Organisation’s (WTO) Agreement on Trade-Related Aspects of Intellectual
Property Rights 1995 (the TRIPS Agreement) has also had an effect on authors’ global
rights in as much as it includes nearly all the conditions of the Berne Convention.

As
most countries in the world are members of the WTO, this effectively brought the
laws of those countries that had not signed the Berne Convention into harmony with
those that had. The WIPO Copyright Treaty (WCT) further extended the rights of
authors, particularly in the context of the Internet.

The most important International agreement for performers, phonogram producers
and broadcasters was the 1961 Rome Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organisations. Further rights were
included in the TRIPS Agreement and in the 1996 WIPO Performances and
Phonograms Treaty (WPPT).

As of July 2007, 86 countries were signatories to the
Rome Convention and 62 countries were signatories to the WPPT.
In practice it needs to be remembered that there are fundamentally two rights to
consider when making records.

1) The copyright in the work (songwriting, composition and/or lyrics).
2) The related rights in the recording.
However music is used, everyone involved needs to keep these two separate rights in
mind at all times.

The importance of understanding these two distinct and separate
rights cannot be over-emphasised, and anyone involved with music needs to be very
clear on how they are dealt with in all transactions concerning music.

For example, if an artist wanted to ‘borrow’ a small section of someone else’s recording
and incorporate it into one of his/her recordings as is often done in modern recording (referred to as a ‘sample’ or ‘sampling’) the artist would need to obtain permission from
not one, but two different rights holders.

Permission would be necessary from whoever
owns the rights in the recording (usually a phonogram producer) but also from whoever
owns the rights in the work (usually a publisher). Not until an artist has received both of
these permissions can he/she legally go ahead and use the sample.

WIPO and the WIPO Internet treaties play a very important role in how the rules of
copyright and related rights are formulated so as to provide certain minimum rights
which each Member State is obliged to incorporate in its national laws. In this way
reciprocal arrangements are more easily possible between collection societies in
different countries, giving music greater value in terms of international trade.

For example, if an author is resident in Singapore and his/her work is broadcast on
Hungarian radio, the author will still get paid via the Singapore collection society
COMPASS, which will receive the income from the Hungarian collection society
ARTISJUS. ARTISJUS and COMPASS have reciprocal agreements with most of the
other authors’ collection societies all over the world.

So we see here that with appropriate reciprocal international agreements and laws it
is possible to earn money from far beyond the borders of an artist’s country, from
radio, television, the Internet, record sales and audiovisual usage.

The WIPO Internet treaties have been particularly valuable in bringing copyright law up
to date. The role of WIPO will become increasingly important in the future particularly
concerning improvements in the rights of audiovisual performers and the new
challenges constantly being introduced by the rapid development of technology. Let us
now look at the main rights these and previous treaties and agreements provide.

Some
may find the following information too legalistic and may wish to proceed to the next
section but for others it may provide an understanding of the different rights that exist.


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