Why Pay to Play

I haven’t done any surveys, but it would seem to me that mass partying is one of the “industries” that has experienced a boom in the last 10 years. The summer party season is almost over and party promoters will soon be preparing for the Christmas party season. The government is also talking about Entertainment Industry Reform. Now is a good time to put on the agenda issues related to improving compliance with copyright laws by persons who use musical works as a source of revenue or to enhance their business or other public event.

Authors and creators of musical works, including the songwriter/lyricist, producer, performer and the person who composes the musical arrangement own the copyright in the final piece of work created. In some instances, all these roles may be played by one person, but quite commonly the work is the result of the joint effort of several persons.

The Copyright Act provides that the owner of copyright is entitled to exclusive rights of exploitation of his work, subject to a few exceptions set out in the Act. As a result, creative works are given somewhat similar treatment as tangible property, in that ownership and control by the owner is recognized by law. We can readily accept that a stranger is not entitled to enter someone’s land and keep a party on it without their permission, even if it had no gate or bad dogs guarding it. However, the idea that someone’s original song or performance is not to be equated to the air we breathe and to which access and use is a human right, is not so easily digestible by many.

The current law requires that in order to legally use someone else’s original work you must have received their permission. This permission may be derived in many ways, including: (i) purchasing a copy of the recorded work, for example, on iTunes or on CD; (ii) using the work for private/personal purposes based on permission from a distributor who has obtained the requisite kinds of permission, for example, YouTube, radio or television; (iii) entering into a licence agreement with the copyright owner for use of the work for public or commercial purposes, for example, synchronization in a movie, documentary or advertisement; (iv) entering into a licence agreement with the relevant collective rights agencies, such as JAMMS and JACAP (in Jamaica) for use of the work for public or commercial purposes, for example, use in a theatre production, or use at parties or concerts; or (v) consent from the Copyright Tribunal in specified circumstances, for example, where the copyright owner cannot be found after reasonable enquiries.

The role of collective rights agencies is often misunderstood throughout the world and I’ll give a brief explanation here. They actually represent the copyright owners who are members of their organizations. These members enter into an assignment agreement with the agencies. By virtue of this assignment agreement, the copyright owner authorizes the collective rights agencies to act on their behalf, to grant users permission to use the works and also to collect licence fees. All licence fees collected should then be distributed to members based on the formula agreed upon by the membership, and should at the very least be in accord with international standards. It is interesting to note that Jamaica Music Society (JAMMS)and Jamaica Association of Composers, Authors and Publishers (JACAP) not only represent local music interests but they also represent international interests, in the same way that their counterparts in other parts of the world represent Jamaican music interests. Collective rights agencies for copyright (which may relate to music, artistic works, literary works, etc) are regulated by the Copyright Act.

A consumer of music for commercial or public purposes is best advised to ensure that the kind and scope of the licence obtained is appropriate and adequate for the intended use. The consumer should also ensure that all the rights are cleared, for example, getting permission from the performing artiste is not adequate when contemplating the inclusion of a recorded song in an advertisement. Additionally, getting a licence from JAMMS or JACAP may or may not cover use of the music in a documentary, on-line radio, live streaming or downloads. In some instances, negotiations should be handled carefully to ensure that you, the consumer, does not pay more than you have to and appropriate regard is taken of the extent to which the recorded work will be used by you for a commercial or public purpose.

Copyright infringement may lead to reputational damage and high levels of compensatory payments. If the work infringed belongs to a national of certain countries and you are exposed to law suit in that country you may also be exposed to high levels of punitive damages or strict liability and statutory damages (that is, the amount payable is fixed by law). Further, getting proper legal advice and appropriate agreements up front are likely to work out to be more cost effective and efficient than the legal fees and human resources that are usually expended on handling litigation or negotiating a settlement.

So, why pay to play? The simple answer is that anyone using music should pay if he/she is not the owner of the music or has not been granted permission to use the music free of cost. Music is property belonging to the rights holders and there are local laws and international treaties which underpin those property rights.

This article is for general information purposes only and does not constitute legal advice.

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