Thursday 23rd June 2005


Rights owners should live from royalties

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Dr Hollis Liverpool

In the June 9 edition of the Business Guardian, Dr Hollis Liverpool, the winner of many Calypso Monarch competitions, said that copyright owners, including those in T&T, have five exclusive rights in relation to their music and lyrics.

Three weeks ago, Liverpool, whose calypso name is Chalkdust, identified three of the exclusive rights: the right to reproduce their work, the right to distribute their work and the right to perform their work.

This week, Chalkdust concludes his presentation with the last two exclusive rights and some thoughts on how new technology affects five the rights.

Right to make a derivative work

The fourth right of a copyright owner is the right to make a derivative work. A derivative work is simply one that is derived from another.

For example, one may compose parody lyrics to a well-known song. Calypsonians Cro Cro and Pink Panther, for example, used the melodies of Gypsy (Little Black Boy and Captain the Ship is Sinking) with new parody lyrics to bring about new works that parodied the UNC and Gypsy himself.

Although the melodies they used were copyrighted original works, their parody lyrics constituted new works. One can understand the concept better if one looks at a film made from a novel. Any film so made constitutes derivative work. A new version of a work that is considered to be public domain, or a new version of a copyrighted work produced with the consent of the copyright proprietor is regarded as “derivative” work and, as such, is copyrightable. Thus, last year, Maximus Dan produced a “derivative” work when he recorded Gypsy’s song entitled The Soca Train.

This brings us to the popular question of “sampling” which is, in fact, another form of derivative work, and which has become quite

The ever-changing world of music

prevalent with the advent of digital technology.

Sampling is the process of dubbing portions of previously recorded music into new recordings. New recordings that utilise licensed samples of an earlier copyrighted recording would naturally fall within the area of a derivative work. Sampling is usually a musical work taken from the body of an original song and recording, ranging from a few seconds to more extensive time periods. Sampling, it must be understood, is a form of infringement to copyright when it makes illegal use of not only the song’s music and,or lyrics but the sound recording itself; moreover, it infringes the right of the publisher of the music as well as the owner of the copyright. Such sampling is wrong because it infringes the “fair use” of the music since substantial identifiable portions of another person’s work are utilised without permission.

One of the areas whereby copyright owners gain compensation for their work is that of issuing licenses to those who wish to use such works, whether they like it or not. In many cases, such compulsory licenses are issued to users of the work by a copyright organisation or some such body that is given the responsibility by the owner to issue same.

Mechanical rights

In T&T, Cott, as the national collecting agency, is usually given the task of issuing such licenses by copyright owners. One such license is that of mechanical rights which actually mean the rights to reproduce songs in records. Mechanical rights therefore demand that once a song or a work has been recorded, the publisher of such work is required to license it to anyone else who wants to use it in records for a specific payment. The royalties thus accrued are known too, as mechanical royalties, and are computed in a most complex manner based, in most cases, on the wholesale price of records.

The term mechanical rights arose from the idea of “mechanically producing sound” from mechanical devices in the early 20th century. Even though devices have not reproduced sound mechanically since the 1940s, the name has stuck, and the mechanical royalties still refer to monies paid to copyright owners for such manufacture and distribution of records.

The payments of mechanical rights are facilitated in most cases by music publishers. As such, this brings us to the area of publishing and publishing rights. A few years ago, Calypsonians Terror, Kitchener and Sparrow, made the headlines when it was made known to all by the print media, that these calypsonians had sold their publishing rights to Barbadian Eddy Grant. Did these singers need a publisher? What does a publisher do?

Well, very often, musicians and music composers need someone to take care of their business while they spend most of their time creating. Accordingly, the songwriter assigns the copyright in the song to a publisher, who in return will carry out all the administration rights: finding users, issuing licenses, collecting money and making mechanical deals. Traditionally, the publisher splits all income with the writer; his 50 per cent is for his overhead expenses as well as his profit.

Publishers collect monies from printed sheet music, from performance deals, mechanical royalties, from commercial usage of works, from radio and television fees, from print music licences, from foreign sub-publishing and from synchronisation and transcription licenses.

Sub-publishing is the concept of making deals with other publishers in foreign countries to publish the works of their clients, while synchronisation fees refer to licenses to use music in “timed synchronization” with visual images. A classic example is a song in a motion picture, where the song is synchronised with the action on the screen. It also includes, however, television commercials, home video devices, but not radio commercials. Radio commercials are not synchronised with visuals and as such, are known as transcription licences.

The fees for synchronisation licensces are based usually on the usage and importance of the song. The importance of publishing and publishing rights can be gleaned from the fact that in the 1990s, following their Copyright Act of 1992, the government of Jamaica decided to put measures in place to obtain the publishing rights of all the outstanding folk songs of their land, lest perhaps these rights were snapped up by money-grabbing publishers. T&T needs to follow suit, particularly in regard to the outstanding calypsoes and folksongs that underscore our heritage. The National Carnival Commission as well as the Ministry of Culture might one day be sued for using, at their shows, a calypso by Kitchener or a folk song of Edric Connor without the permission of the publisher.

All will agree, therefore, that the business of music is an ever-changing and dynamic field. Its consumers include listeners as well as amateur and professional performers. With new technology being introduced yearly, the industry continues to grow toward unexpected heights. With the rapid and continuous growth of the industry, however, music makers and the public need to understand the rights that accrue from creating music for public use, particularly because copyright owners ought to be able to live decently and with dignity from the royalties that their creativity has engendered.

Dr Hollis Liverpool is an associate Professor of History, University of the Virgin Islands, St Thomas. USVI. He is the reigning Calypso Monarch and in the world of calypso he is better known as “Chalkdust.”

Cott is indebted to him for his contribution.




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