THE MUSINGS OF AN IDIOSYNCRATIC ECONOMIST: The Copyright System in Practice (part 3)

Answer to last week’s question.

 Last week “Producer’ asked a question as to whether or not a local collective management organization could be formed in Dominica to look after the performing rights of creators. The answer is definitely yes, since any group of persons can create an association for their mutual benefit. However the economics would militate against the formation of such a society since the potential revenue that could be generated would be too small to make the organisation viable. ECCO was originally Hewanorra Musical Society (HMS) and up till December of 2008 was responsible for managing performing rights only for St. Lucia. However the economic viability of HMS was in doubt and since it was clear that the other OECS countries with smaller populations and smaller markets could not sustain their own individual societies it was decided that the best option was to have a single Society for the OECS  with its headquarters in St. Lucia.  As you have no doubt already concluded the creators are ahead of the politicians!!!!!

Part 3

Ownership of Copyright.

Last week we looked at the economic rights that are embodied in a copyright work, be it a piece of music, a painting, a photograph, a film, a piece of literature, a computer programme or any other work in which copyright exists. This week we will look at who owns copyright works and how rights in copyright are transferred from one person or entity to another.

In general the first owner of copyright is the author or authors. However where an author is an employee, the copyright in the works which he produces in the course of his employment belong to his employer unless the employment contract says otherwise. If you work as a clerk, Permanent Secretary or other functionary for the government the copyright in all the literary works that you create at the government’s office belong to the government.  Yes copyright exists in all the (useless?) paper created by civil servants!!! However where an employee of a newspaper or similar periodical makes a literary, dramatic or artistic work the employer is the first owner only in so far as it relates to:

(a) Publication in a newspaper or similar periodical,

(b) Copying the work for the purpose of such a periodical and

(c) Broadcasting the work.

This means of course that other uses of the work belong to the employed author e.g publication of a book from newspaper articles.

Commissioned works.

The ownership of the rights in a commissioned work belongs to the author even if he is induced to produce the work by the commissioner on payment of a fee. The commissioner does not automatically become the owner of the copyright in the work simply by paying a commissioning fee. A commissioned work is defined as a work that is produced by an author or creator at the request of another person in situations where the creator is not an employee of the person who asks for the work to be created. Examples of commissioned works would include such things as advertisements for radio or TV that an advertising agency creates for a business client at the request of the client, or a report produced by an external auditor with respect to the client’s accounts. Consequently when a commissioner asks a creator to create a work, be it an adverting jingle, a photograph (for which there are some special rules as we will see below), a book or a website it is incumbent on the commissioner to negotiate with the creator for the licences and/or assignments for the rights which he needs. Of course the more rights the commissioner needs the higher the commissioning fee is likely to be.

Photographs.

Photographs are artistic works and as such are covered by the copyright law. The rights in photographs that are commissioned works belong to the photographer but when a photograph or film is commissioned for private and domestic purposes the commissioner has the right not to have, without his authorisation:

(a) Copies of the work issued to the public

(b) The work exhibited in public

(c) The work broadcast or included in a cable programme service

These restrictions on the rights of the photographer or filmmaker are granted to the commissioner on the grounds of privacy.  The situations that would fall in this category would include activities such as the engagement of a photographer to take wedding pictures; first communion photos etc. The persons in photographs taken in other circumstances, particularly in public places, usually have no copyright except if they are performers engaged in the act of performing a copyright work. In this case the photographer needs to seek the permission of the performer before his picture can legally be taken while performing as we shall see below when we look at neighbouring rights.

An owner of economic rights in a work deals with his rights in basically two ways:

1.       Assignments

2.       And Licences.

As we saw last week an assignment is a transfer of ownership. Publishing contracts, whether for music or books, usually involve an assignment of all the economic rights from the author to the publisher subject to whatever restrictions might be included in the assignment. Thus when an infringement of a work assigned to a publisher takes place it is the publisher’s rights that are infringed and the publisher is the one who will initiate action against the infringer in its own name and not the author.

Licences are of two types: Exclusive licenses and non-exclusive licences. Exclusive licences are very similar to assignments in that the person who is the beneficiary of an exclusive licence can take action on his own against infringers. However the author or other person giving the exclusive licence can still take action against infringers himself in certain circumstances. Non-exclusive licences are really authorizations to use copyright works and confers no ownership rights at all on the person to whom a non exclusive licence has been given. These kinds of licenses usually require the person to whom the licence is granted to compensate the rights owner in some form or fashion. It is important to note that In Dominica all assignments and licences must be in writing signed by both parties.

Neighbouring Rights or Related Rights

Copyright per se deals with literary (including computer programmes), dramatic, musical, artistic works, audio-visual works and films. However there is another group of works that are closely allied to these works and the rights in these are known as neighbouring or related rights. They are:

1. Rights in sound recordings; 2 Rights of performers; 3 Rights in broadcasts.

Sound recordings of course are recordings of any kind of sound – speeches, sounds of cars, crickets, frogs, passing gas etc. The most widely recorded sound of course is the sound of music.

Sound recordings are protected against:

(a) Unauthorized reproduction (otherwise known as piracy)

(b) Importation of copies

(c) Rental or public lending irrespective of the ownership of the copy rented or lent.

(d) Making the sound recording available to the public by wire or wireless means, in such a manner that members of the public may access it from a place and time individually chosen by them ( e.g internet downloading or interactive streaming).

Protection is for fifty years from the year of publication or from the date of fixation if the recording is not published.

In addition, if a commercial sound recording is used for broadcast, communication to the public, or to give a public performance directly or indirectly (for example by making the sound recording audible in a public place by reception of a radio broadcast of a sound recording) a payment is to be made to the producer for the benefit of the producer and the performers by the user. Please note that there is a difference between the rights in a sound recording and the rights in the work recorded. These 2 sets of rights frequently belong to different persons and therefore to make legal use of a recording of music requires two sets of authorisations: one from the owner of the recording (the producer) and one from the owner of the work recorded (the songwriter , his publisher or the Performing Right Society of which he is a member).

Rights of Performers.

A performer has the exclusive right to authorise:

(a) The broadcast of his live aural performance;

(b) The fixation of his unfixed performance (this would include making an audio recording; a video recording or taking still photographs).

(c) The reproduction of a fixation of his performance

(d) The first making available to the public of a fixation of his performance or copies thereof through sale or other transfer of ownership

(e) Rental or public lending of a fixation of his performance irrespective of the ownership of the copy rented or lent.

(f) The making available to the public of his fixed performance by wire or wireless means in such a way that members of the public may access it from a place and time of their own choosing. This would include such activities as putting the performance on youtube, facebook or other social media or on one’s own website.

However once the performer has authorised the incorporation of his performance in an audiovisual fixation he ceases to have control over further use of the fixed performance.

In addition the performer also has moral rights in his live aural performances and performances fixed in phonograms to be identified as the performer of his performances and to object to any distortion, mutilation or other modification that would be prejudicial to his reputation. If you are a video editor be careful how you add effects, transitions and sound effects to a performer’s performance! You could find yourself facing an action for mutilation of the performer’s performance if the performer does not approve of your creative interventions!!!

From the foregoing it is clear that If you are a concert promoter who has a contract with a performer or group of performers you cannot legally contract with a broadcaster, recording studio, photographer or videographer to broadcast, photograph , transmit by cable or the internet, the performer’s performance without his expressed authorisation allowing you to do so. This authorisation is to be given by all the performers engaged in the performance or by someone properly authorized to give this authorization on their behalf. Similarly a photographer, videographer or a broadcasting organization that broadcasts, fixes or makes the performance available to the public via the internet without authorization from the performers is liable to the performers for infringing their rights even if the organizer of the event authorized them so to do when the organizer had not first been authorized by the performers to do or authorize others to do these acts. The authorisations from the performer(s) are in addition to the authorizations from the owners of the works that are being performed, be they choreographic works of dance, dramatic works or musical works.

Divisibility of Rights.

The concept of the divisibility of rights is one of the cornerstones on which the copyright system is built. It is also one of the most misunderstood copyright concepts and the source of much misunderstanding by users and creators of copyright alike.

As we saw in part 1 of the series an individual work such as a song or photograph confers many rights on the author or other owner. The owner can grant (and frequently does grant) authorization of some rights to one person for a specific geographic area and for specified periods of time for a specific purpose.  At the same time he can grant authorization to another person for the same right in another geographic area for the same or a different purpose .The law specifically says that a licence granted to do an act which only the owner can do or authorise shall not include, or be deemed to include the assignment or licence of any other rights not explicitly referred to therein. This is the essence of the principle of divisibility. For example if a songwriter gives an advertiser permission to reproduce his song in timed relation to moving pictures (a synchronization licence) to create a television advertisement the advertiser does not have permission to broadcast or transmit by cable or authorize such broadcast or cable transmission. In fact it is the broadcaster or cable operator who is required to have authorization to transmit by cable or broadcast the work incorporated in the advertisement. Similarly when a performing right society gives a radio station licence and authority to broadcast musical works from its repertoire this authorization is to allow the broadcaster to put out the musical works from its transmitters (broadcast) and does not cover the reception of the signal by a store, bank etc to give a public performance of the music by making it audible within its premises. A separate licence is needed by the store or bank for this public performance.