Background Music – Still The Property Of Someone Else’s Intellect

The Copyright In Musical Works – Performing AND Mechanical Licenses

Music is the sound track of our lives.  There are very few places, which we visit in our day-to-day existence, where there is not some variation of background or atmospheric music playing; be it in a shopping mall, a doctor’s waiting room, a taxi or a restaurant.  However, how many of these enterprises are legally permitted to play the music?

As with all things in the commercial world, if it contributes to your business, then some sort of consideration should be paid over to the ‘provider’ of that contribution.  When purchasing a music album, most people are aware of (or perhaps choose to ignore) the fact that the album may not be copied.  However, would a doctor know that he is also not permitted to play his Freshly Ground album in his waiting room?  The rights granted when purchasing an album do not extend beyond the individual’s private listening.

One aspect of copyright law is specifically designed to protect the rights of those involved in the creation of musical works. The South African Copyright Act, 98 of 1978 protects original works of authorship and gives the following exclusive rights to the owner in order that he or she alone may:

i.  Reproduce the work – mechanical rights / synchronisation rights;

ii. Produce a derivative of the work – adaptation rights / translation rights;

iii. Distribute copies of the work – publication rights;

iv. Perform the work in public – performance rights / broadcast rights / dramatisation rights

When producing a music album or a particular song, the following parties are usually involved:

the composer of the tune;

  1. the author of the lyrics (who may also be the composer);
  2. the arranger of the production – the producer; and
  3. the publisher, being the production company.

All of these parties have put in time and effort to create the resultant song or album, and need to be remunerated for their contribution in creating an original piece of music.  Although many artists and musicians will make music for the love it, it does not feed, clothe or house them.  Copyright law accordingly affords each of the parties involved in creating music the exclusive copyrights in their particular work, being the literary work of the lyrics, the musical work of the tune, and the sound recording being the actual fixation or storage of sounds contained on the CD, cassette, record, etc.

When one purchases a music album, the copyright owners do not relinquish or transfer any of their copyrights to that song, but they rather allow the purchaser to make use of that album in their personal capacity.  Should the purchaser wish to use the album in a commercial environment, to entertain waiting customers for example, then an additional fee would need to be paid for this extra use.

As you can well imagine, it would be incredibly cumbersome to expect a restaurant owner to shoulder the administrative burden of paying the owner of each copyright work every time he wishes to play a song to his customers. The amount of labour involved in separately paying the composer, author, arranger and publisher of each song played in his restaurant every day as background music for his customers, would be absurd.  Likewise, it would place an insurmountable burden on the relevant copyright owners to monitor and police all use that it is made of their songs.  The copyright owners are accordingly able to sign up with collection societies, which have been established in order to collect the fees on behalf of their members.

The collection societies, which have conveniently been divided into two separate categories, are authorised to grant licences to the public on the behalf of their members to make commercial use of their songs.  The first category of collection societies license the copyright in the lyrics and musical notation (on behalf of the artists, composers and musicians), and the second category license the copyright in the sound recording (on behalf of the record companies).

So, should a doctor wish to play music albums in his waiting room, he would obtain a performing licence from two organisations that represent the parties involved in the particular albums (eg. SAMRO who represents the artists, composers and musicians, and SAMPRA who represents the record companies).  These licences are not exorbitant and the cost really depends on the licensee’s particular circumstances and requirements.  Considerations include the manner in which the music is played (by a live band or as background music), the size of the establishment’s clientele, the location.  Accordingly, a different tariff is likely to be payable in respect of a doctor’s waiting room as opposed to a restaurant or a bar.

Similar to a Television Licence, these collecting societies have inspectors, who police all   relevant establishments, ensuring that they have obtained a licence.

It should also be kept in mind that these performing licencesonly permit the licensees to play legitimately purchased albums. So, if a restaurant owner has a sound system run through his computer, two further licences would need to be purchased for the right to transfer the content of, for example, a CD to a computer.  This type of licence is called a mechanical licence and could also be purchased from SAMRO, as well as from SARRAL and NORM who each represent a certain portion of the artists, composers and musicians in the industry, and from RISA who represent the record companies.

In summary - no matter what type of business you own, if you play music in public, you are required to obtain permission for that right by obtaining a performing licence (from both the music and sound recording collecting societies).   In addition, should you wish to transfer or reproduce music from one format to another, you will also need to purchase a mechanical licence from both the music and sound recording collecting societies.

Further information regarding the specific licences can be obtained from the websites of the various collecting societies at samro.org.za, sampra.org.za, sarral.org.za, norm.co.za, and risa.org.za.

Publication Name: Musical Works
Date: April, 2013
Author: Andrew Papadopoulos
Practice Area: Copyright