COMMENTARY: The Act that protects musicians

In January Dominica News Online (DNO) reported that Derek “Rah” Peters filed a law suit in the High Court of Dominica against musicians Machel Montano of Trinidad and Tobago and Lashley Winter of St. Lucia. The suit was filed in February of 2020.

This prompted me to take a closer look our copyright laws in Dominica and how it plays out in this scenario.

Musical works are protected under Section 5 (1 ) of the Copyright Act 2003 (No. 5 of 2003) (hereinafter referred to as “the Act”), which states: Copyright is a property right which subsists in accordance with this Act in original works of the following descriptions – (a) literary, dramatic, musical or artistic works; (b) sound recordings, films, broadcasts or cable programmes…

Pursuant to Section 3(a) and 4(a), the provisions of the Act applies to performers who are nationals of Dominica and sound recordings the producers of which are nationals of Dominica. Therefore, Peters would fall within that category.

The report states that in his Statement of Claim, Peters alleges that Montano and Winter, without his authorization, incorporated parts of the song “Balance Batty” by way of the technique known as sampling into their musical work to create a derivative work.

Although the Act provides for the protection of “derivative work” under Section 6, it does not define it. Black’s Law Dictionary (2^nd Edition) defines “derivative work” as “An artistic work taken from existing works that are copyrightable and must be original to be a work in its own right.”

This is what Entertainment and Media Attorney Justin M. Jacobson, Esq.  says of “Sampling” as “Sampling” is best described as reusing a specific portion of another’s sound recording. The amount used varies; from as little as merely integrating another’s unique drum combinations or guitar rift into a song, to utilizing the entire chorus or a complete verse from a song.  This action, in simplest terms, can be viewed as merely “copying” and “pasting” a portion of another’s existing sound recording into your new work.

Unlicensed instances of this practice can subject a creator to potential liability for copyright infringement; however, there are ways to avoid potential liability and obtain proper permission to utilize a “sample” of another’s work.

(https://www.tunecore.com/blog/2016/08/music-sampling-breaking-down-the-basics.html)

It begs the question therefore as to why entertainers sometimes fail to ask permission of the owner of the original work? Do they feel they may get away with it? Is it that they are of the view that the sampling is of too small a portion to be considered an infringement?

Whatever the reason, credit has to be given where it is due.

Section 18 of the Act provides: “the author of a work shall be the first owner of the copyright in that work.” Exclusive rights are vested in the owner to reproduce his or her work under Section 10 (1) (a).

Peters further alleges that as the sole lyricist and a co-composer of the musical work, his permission was necessary for any part of the song to be reproduced in any manner or form including reproduction by sampling. The sampling of “Balance Batty” was done in the creation of the song ISSA VIBE by Montano and Winter for the Carnival of 2019.

As a member of the business organization W.C.K at the time the recording was done, Peters is also claiming that he is a co-owner of the sound recording and thus his permission was also needed for the use of the sound recording of “Balance Batty” to be reproduced. He insists that since he gave no such permission, directly or indirectly, his right of reproduction in the sound recording was also infringed.

This permission that Peters speak of is derived under the authority of  Part V of the Act, Section 27( 1) (a) which states: “…a producer of a sound recording shall have the exclusive right to carry out or to authorise any of the following acts:

(a) direct or indirect reproduction of the sound recording, in any manner or form;

(b) importation of copies of the sound recording;

 (c) the making available to the public by sale or other transfer of ownership, of the original or copies of the sound recording that has not already been subject to a distribution authorised by the producer;

(d) rental to the public or public lending of a copy of the sound of recording, irrespective of the ownership of the copy rented or lent; and

(e) the making available to the public of the sound recording, by wire or wireless means, in such a way that members of the public may access it from a place or at a time individually chosen by them

Section 12 (1) of the Act provides for duration of protection of sound recordings and films. It states that a copyright in a sound recording or film shall expire at the end of fifty years from the date of the calendar year in which it was made, or where it is made available to the public before the end of that period, at the end of fifty years from the end of the calendar year in which it is so made available.

Balance Batty was originally released in 1995.

Section 12 (2) goes further to say “…a sound recording or film is made available to the public when it is first published”.

The statement of claim alleges that videos were made of the musical work ISSA VIBE incorporating “Balance Batty”. These videos were uploaded to the YOUTUBE video hosting site and made available to the public by Montano and Winter without his authorization. These unauthorized uploads infringed his right of communication to the public with respect to the musical work and the sound recording. Audio only versions of the song were also uploaded to the SOUND CLOUD audio hosting site without his authorization thereby creating further infringements.

Peters is also seeking relief for the Infringement of his moral rights associated with the song “Balance Batty” since he is not credited anywhere for his contribution to the creation of the song.

So what is the remedy available under the Act?

28. (1) If a sound recording published for commercial purposes, or a reproduction of such sound recording, is used directly for broadcasting or other communication to the public, or is publicly performed, a single equitable remuneration for the performer or performers and the producer of the sound recording shall be paid by the user to the producer.

(2) Unless otherwise agreed between the performers and the producer, half of the amount received by the producer under subsection (1) shall be paid by the producer to the performer or performers.

It is not very often we see musical artists sue for copyright infringement but the mere fact that this law suit has been filed is an indication that musical artists do recognize that their work is protected and there is recourse for infringement.

NB. The musicians may have gotten permission from the other band members.