Zeeshan Chaudhry - EMI (Pakistan) Ltd.

Copyrights & Music Licensing

This presentation is intended to provide an introduction for non-specialists or new-comers to the subject of copyright and related rights. It explains in layman’s terms the fundamentals underpinning copyright law and practice.

It describes the different types of rights which copyright and related rights law protects, as well as the limitations on those rights

“... my problem isn’t piracy, it’s obscurity” - Cory Doctorow

What exactly is a Music Copyright?

What exactly is a Music Copyright?

Think of a copyright as a bundle/basket of exclusive rights. The exclusivity means that only you as the copyright owner may exercise those rights in your music, or authorise others to exercise them.

Copyright is a legal concept, enacted by most governments, that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time, with the intention of enabling the creator of intellectual wealth (e.g. the photographer of a photograph or the author of a book or lyricist of a lyrics or composer of a composition) to receive compensation for their work and be able to financially support themselves.

Musical Composition vs. Sound Recording

When you hear a song on the Radio / TV / CD you are hearing two separate copyrights: one for the underlying musical composition and one for the sound recording. The distinction between these two is important, because even though they are both attached to one song, they are two separate works for copyright purposes and may be independently licensed or enforced. It is easier to understand this distinction if we look a little closer at what each copyright consists of: A musical composition consists of music, including any accompanying words. The author of a musical composition is normally the composer of the work along with the lyricist (if the lyricist and composer are separate). A musical composition can be in the form of a notepad copy (such as sheet music) or in the form of a phonorecord (tape, CD, LP, etc.) A sound recording (or master recording) results from the fixation of a series of musical, spoken, or other sounds. The author of the sound recording is typically the performer(s), the record producer, or both. In many cases an artist will enter into a publishing agreement in which they will sign over all or part of their copyright in their compositions to a publisher in return for the administration of those compositions. As part of this administration, a publisher will seek out people who want to use the artist’s composition in their own works or performances, issue the necessary licenses, collect the money, and give the artist their agreed upon percentage. It is also common to see performers grant their copyright in their sound recordings to the record label they are recording under.

Musical Composition vs. Sound Recording

When an artist wants to release a cover song, they must get permission from the copyright holder of the musical composition. If, however, a recorded song is being used, the person using the song would potentially have to seek permission from two people: the person that has the copyright in the musical composition (usually the composer or publisher) and the person who holds the copyright in the sound recording (typically the performer, record label, or producer). As an example, consider the popular song “Keh Dena Ankhoo Sey” made famous by Alamgir Haq. The song “Keh Dena Ankhoo Sey” was originally composed by Mr. Alamgir Haq, written by Mr. Nasir and released in 1981.

Three Decades later “Kristie Yung" released her version of the song. Inspite of the fact that Ms. Yung was going to “Re arrange” (in certain cases also called “Jhankaar”) an existing tune , WITHOUT changing the melody, she still needed to seek permission from the original “Publisher” (the Body/company/Artiste/Composer as it may apply) who held the Master Rights for the song. As she was going to be physically altering the “likeness” of the “original plate”. She did not seek the said permissions and proceeded to record the product. However in another scenario, if she had secured requisite permissions then SHE would control the new / revised “likeness” while certain amount of Publishing fees would be forwarded to the original owners of the copyright.So, there is a copyright element in a pirated / unauthorised version too……… WHY? Because some level of “Intellectual Thought” regardless of the mollified intent was given to developing the new product. Hence it is commonly seen that popular songs have several variations. A major point to note is that the original Artiste Mr. Alamgir Haq will ALWAYS hold the right and authority to perform the said recording, however, HE CANNOT give out the RIGHT to change / modify / alter the song / track without first reconfirming his own control over the recording.

Exclusive RightsHolding a copyright in a work means that you have exclusive rights to the use of that work. These exclusive rights include the rights of: Reproduction. The right of reproduction allows you to decide who may make a copy of your work, such as using it in a movie, using a sample, or publishing it as sheet music. Derivative Works. This right allows you to decide who may make a new work based on your original work, such as the creation of a parody song. Distribution. This right allows you to decide who may sell copies of your work.Public Performance. This right controls the performance of your song on the radio, in clubs or restaurants, on television, or anywhere else where the performance would be deemed “public”. The first two rights, involving reproduction and derivation, are infringed whether violated in public or in private, or whether violated for profit or not. The last two rights are infringed only when violated publicly, that is, before a "substantial number of persons" outside of family and friends All of the exclusive rights afforded by copyright may have significant economic value. For example, derivative works, which may include translations, dramatisations, films, recordings, and abridgements, can offer substantial rewards to the author. An author may sell, license, or transfer one or all of the exclusive rights.

Performer’s RightWho is a performer?

As per the Pakistan Copyright Act, a "Performer" includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, a person delivering a lecture or any other person who makes a performance.

What is a performance?

"Performance" in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers.

What are the rights of a performer?

A performer has the following rights in his/her performance:

• Right to make a sound recording or visual recording of the performance;

• Right to reproduce the sound recording or visual recording of the performance;

• Right to broadcast the performance;

• Right to communicate the performance to the public otherwise than by broadcast.

What are the rights of a performer in a cinematograph film?

Once a performer has consented for incorporation of his performance in a cinematograph film, he shall have no more performer’s rights to that performance.

Moral Rights

What are the moral rights of an author?

The author of a work has the right to claim authorship of the work and to restrain or claim damages in respect of any distortion, mutilation, modification or other acts in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation. Moral rights are available to the authors even after the economic rights are assigned.

Do the author’s moral rights remain after assignment of copyright?

Yes. The moral rights are independent of the author’s copyright and remains with him even after assignment of the copyright.

Will failure to display a work infringe the moral rights of an author?

No. Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the moral rights of the author.

Duration of OwnershipAs we discussed earlier in our presentation, music copyright is broken down between musical compositions, lyrics and sound recordings. It is important to keep this distinction in mind when considering the duration of either of these copyright terms, because different sets of laws will govern the duration of the copyright depending on the type of work being considered (sound recording or musical composition or lyrics) and when that work was created. Under the original provisions of the Copyright Act of 1962, copyright protection of an authored work extended through the life of the author and to fifty years after the author's death. The following tables explain how copyright duration varies: One author: Life of the author + 50 years Joint authorship: Life of the last surviving author + 50 years Work-made-for-hire; anonymous works; 95 years from publication or 120 years from fixation, whichever is shorter. pseudonymous works: If an anonymous author is later revealed, life of the author + 50 years.

Holders of a CopyrightA copyright is initially owned by the author or authors of the work, except in the case of a "work for hire." A work for hire can arise in two situations: (1) where an employee creates a work within the scope of his or her employment, in which case the employer owns the copyright to the work upon its creation; (2) where two parties enter a written agreement designating the creation as a work for hire. "author" means:- (i) in relation to a literary or dramatic work, the author of the work; (ii) in relation to a musical work, the composer; (iii) in relation to a record the owner of the original plate from which the record is made, at the time of the making of the place The ownership of a copyright, or the ownership of any of the five exclusive rights afforded by a copyright, can be transferred to another and is regarded as Personal Property upon the death of the copyright holder. Copyright ownership and ownership of the material object in which the copyrighted work is embodied are two entirely separate legal entities.

Licenses by Owners of CopyrightThe owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the copyright by license in writing signed by him or by his duty authorized agent: Authors of musical works may use their works for their own benefit or they may instead, or additionally, allow third parties to use their works via a license. In many instances a copyright owner will negotiate a direct license with a licensee, with both parties mutually agreeing upon term and conditions, including the payment of a fee for the use of the work. This is known as a voluntary license. The available licensing scheme will depend on which copyright the licensee is seeking to use (musical composition or sound recording) and how the licensee intends to use that work.Voluntary Licenses: There are a number of different situations in which a license must be negotiated between parties. These situations include: Reproduction and distribution: To reproduce and distribute a sound recording, a master recording license must be obtained from the copyright holder. To use the underlying musical composition, a compulsory mechanical license must be secured, as discussed below. Reproduction in audiovisual works: If you want to use a sound recording in a visual work, such as a commercial or movie, a master recording license must be obtained from the copyright holder. To use the underlying musical composition, a separate synchronization license must be obtained from the copyright holder. Public performance: If you would like publicly perform a work, you must secure a license for the musical composition, and if applicable, the sound recording. For larger music users, such as radio stations or restaurants, it is typical to secure a blanket license from a performance rights organizations (the major organizations being COMP). Performance rights organizations (PROs) enter into agreements with publishers to license out all of the publisher’s songs. Individuals or organizations who negotiate a blanket license with the PRO are permitted to publicly perform any song within the PRO’s collection. The fee for this use will be negotiated between the parties and will vary according to the scope of the use and the nature of the entity using the works.

Licenses by Owners of CopyrightCompulsory Licenses: There are a number of licenses that are compulsory, meaning that the copyright owner must issue a license to a person seeking to use the work. These licenses include: Cable television rebroadcast: Local broadcasting stations must allow cable companies to re-transmit their signals, for a set fee. Public broadcasting system: Copyright owners must license the use of their published nondramatic musical works and published pictorial, graphic, and sculptural works in connection with noncommercial broadcasting. Digital performance of records: Copyright owners of sound recordings must allow performance of their recording if used in a noninteractive digital audio transmission. The four categories of works generally covered by this compulsory license are: eligible nonsubscription services, preexisting subscription services, new subscription services, and preexisting satellite digital audio radio services. Phonorecords and digital downloads of nondramatic musical compositions: Once a non-dramatic musical work has been recorded and released to the public through a phonorecord (e.g. CD, audio DVD, MP3, record), the owner of the musical composition copyright must license use of the composition to anyone who wants to use it in a phonorecord, so long as the licensee does not change the basic melody or fundamental character of the song. This is known as a compulsory mechanical license. Many publishers handle their mechanical license on their own. In the event that the original work did not meet the requirements for a compulsory mechanical license (e.g. the work was not released to the public, the work was a dramatic musical work, etc.), a voluntary license must be negotiated with the copyright owner. The new media rights of ringtones and permanent digital download are also subject to a compulsory mechanical license.

Copyright InfringementsWhich are the common copyright infringements?

The following are some of the commonly known acts involving infringement of copyright:

i. Making infringing copies for sale or hire or selling or letting them for hire;

ii. Permitting any place for the performance of works in public where such performance constitutes infringement of copyright;

iii. Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright ;

iv. Public exhibition of infringing copies by way of trade; and

v. Importation of infringing copies into Pakistan.

vi. Exportation of infringing copies out of Pakistan.

Has the owner of an auditorium or a hall any liability while renting out the place for communication to the public of a copyrighted work?

Yes. If a person permits for profit any place to be used for the communication of a work to the public, where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright, he will be deemed to have committed an offence under the Copyright Act.

What are the civil remedies for copyright infringement?

A copyright owner can take legal action against any person who infringes the copyright in the work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts.

Copyright InfringementsWhat is the proof of the authorship of a work?

Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher appears on copies of the work as published, or, in the case of an artistic work appeared on the work where it was made, the person whose name so appears or appeared shall, in any proceeding in respect of copyright in such work, be presumed, unless the contrary is proved, to be the author or the publisher of the work, as the case may be.work, as the case may be.What are the rights of owner over infringing copies and equipments used for making infringing copies?

All infringing copies of any work in which copyright subsists and all plates used or intended to be used for the production of such infringing copies shall be deemed to be the property of the owner of the copyright.

Is copyright infringement a criminal offence?

Yes. Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under the Copyright Act 1962.Who is responsible for copyright offence committed by a company?

Every person who at the time the offence was committed was in charge of, and was responsible to the company for, the conduct of the business of the company, as well as the company shall be deemed to be guilty of such offence and shall be liable to be proceeded against.

“Just because something is traditional is no reason to do it, of course. Piracy, for example, is a

tradition that has been carried on for hundreds of years, but that doesn't mean we should all attack

ships and steal their gold.” - Lemony Snicket

Thank you!!!Zeeshan Chaudhry General Manager EMI (Pakistan) Ltd Email: zeeshan@emipakistan.com Cell: +92 331 2273529