In our part of the world, a good musical performance or performer is showered with praises and gifts out of the abundance of the hearts of the audience, nothing more. This probably could account for the reason why performances in the arts and culture industry are merely “appreciated” and not necessarily paid for.
Consequently, operators of public places such as theatres, hotels, cinemas, concert halls, bars, clubs, holiday resorts, restaurants and commercial banking and industrial establishments that use music in the course of their work find it difficult to reconcile making provision let alone paying copyright royalties for the use of musical works they may have purchased on their premises.
Charged with the responsibility to collect copyright royalties for the use of musical works/ sound recordings and distribute same to rights owners, collective administration societies or collective management organizations (CMOs) are duty bound to ensure all music users are sensitized and obtain licenses before music is used on their premises.
What is Copyright?
The Copyright Act, 2005 (Act 690), interprets a number of terms and highlights conditions under which copyright may be enforced but does not define copyright. For the purposes of this this write up, we can simply say that copyright is the right to authorize or prohibit the making of copies of a work. Moving on to which works are protected, the Act identifies specific works eligible for copyright protection and this include authors of musical works and sound recordings among others. (s.1)
Under the Act, musical work is considered to be any musical work irrespective of its quality and words composed for musical accompaniment, while that of sound recording is referred to as work that results from the fixation of a series of musical, spoken or other sound, or of a representation of sounds but does not include sounds accompanying a motion picture or other audio-visual work regardless of the nature of the material objects in which those sounds are embodied. (s.76)
I must hasten to add that under the Act, an “author" is generally a person who creates a work, and in the case of cinematographic work or sound recording, means the person by whom the arrangements for the making of the work or recording is undertaken. That is the creator of the musical composition, the musical arrangement or the lyrics, or a combination of any of them.
Rights granted under Copyright
Once a work passes the eligibility criteria under the law, then the author of that protected work is automatically granted exclusive economic rights to authorize among others, the reproduction of the work in any manner or form, the public performance, broadcasting and communication of the work to the public. (s.5)
With this bundle of rights granted under the Copyright Act, any person who intends to use the work of the author needs to seek his/her permission to authorize any of the activities stated in the Act before it is undertaken. Please note further that an authorization granted for specific right under specific conditions and terms does not extend to other uses.
The Act further points out that “where in any public place by means of broadcasting, cinematography, jukebox or other apparatus, a sound recording or audio visual work is used the authorised performer and producer of the sound recording or audio visual work shall be entitled to royalty in accordance with this Act.” (s.37)
A "public place" under the Act is interpreted to mean any building, place or conveyance to which for the time being the public are entitled or permitted to have access, either without any condition or upon condition of making any payment, and includes theatres, hotels, cinemas, concert halls, dance halls, bars, clubs, sports grounds, holiday resorts, circuses, restaurants and commercial banking and industrial establishments.
The Act goes on to interpret "public performance" to mean in case of a work other than an audio-visual work, the recitation, playing, dancing, acting or otherwise performing the work, either directly or by means of any device or process … and in the case of a sound recording, making the recorded sounds audible at a place or at places where persons outside the normal circle of the family and its closest acquaintances are or can be present, irrespective of whether they are or can be present at the same place and time, or at different places or times, and where the performance can be perceived without the need for broadcasting or communication to the public within the meaning of the definitions of "broadcasting" and "communication to the public"(s.76)
Therefore in the case of public performance of music in a hotel room for instance, a “public place” does NOT refer to for the purpose to which the room is put to by the lodger or client, but rather a “public place” in terms of being outside the normal circle of the family and the closest acquaintances of the hotel owner or proprietor, irrespective of whether they are or can be present at the same place and time, or at different places or times.
Collective Management Organizations
Given the fact that it is impracticable if not impossible for rights holders to manage their rights individually, such as when it comes the licensing of public performances taking place in hotels, restaurants, clubs, etc. or the hundreds of broadcasting stations scattered across the country, the Act provides therefore for the establishment of CMOs to do license, collect and distribute copyright royalties on behalf of authors, producers, performers and publishers as well as promote and protect their interests. (s.49)
The Law regulating the administration of copyright in Ghana - the Copyright Regulations 2010, Legislative Instrument 1962, further provides that a person who intends to use or perform the work of an author or cause the work of the author to be used or performed in public or do any act in respect of the work, shall apply to the appropriate society for a license for the performance of the work. (r.36)
Services of CMOs thus make it easy for users to comply with copyright legislation. Music users normally get the necessary copyright licenses from a central source, for both national and international works. CMOs like the Ghana Music Right Organization (GHAMRO) also educate the public about the value of copyright material and their legal obligations in using it.
Payment of Copyright Royalties
CMOs therefore basically offer legal access to copyright works from one source easily and cost effectively to users. And subject to the payment of the appropriate tariff and the fulfilment of specific conditions, the CMO will issue a blanket licence granting the music user access to use all, many or some of the works on an unrestricted basis, as long as they respect the conditions of the licence.
Copyright royalty payable by music users are calculated based on a series of carefully devised tariffs, which normally take account of the type and frequency of use, the type of venue and other relevant factors. Where all the works used belong to the copyright repertoire, in the case of live performance, entertainment radio or night club, the copyright royalties payable is a percentage of the receipts - about 10% of the receipts.
If the copyright protected works are not the main source of interest for the public, as in the case of a restaurant, hotel, shopping mall, etc. the percentage is converted into a flat charge or lump sum using criteria and parameters which enable an indirect connection to be established with the receipts that it is estimated were obtained partly thanks to authors' works. The actual royalty sometimes may be settled by negotiation especially, in situations where there are associations representing the class of music users such as broadcasting, hotels, mobile DJs, etc.
Infringement and remedies
While the Act provides for music users to apply for and obtain a license before going to use copyright protected works of authors, persons who use the work of an author protected under the Act without the permission of the CMO or right holder, constitutes an infringement of rights of the author (s.41) and have committed an office liable on summary conviction to a fine or to a term of imprisonment or to both. (s.43). Furthermore apart from the criminal proceedings, a person whose rights under the Copyright Act are in imminent danger of being infringed or are being infringed upon may initiate civil proceedings in the High Court. (s.47)
I hereby call on all intellectual property practitioners, especially those in the copyright space not just the CMOs, but the Copyright Office and even the Ministry of Justice and Attorney General’s Department to bolster the enforcement of the Copyright law by re-doubling efforts in creating awareness on the importance of copyright and intellectual property in general and its role in national development.
Failure to do so may impact negatively on the development of the arts and culture industry making it not only unattractive to new investment but also take away compensation due to authors.