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CREATING VALUE FROM MUSIC: CRITICAL COPYRIGHT ISSUES

Music is the line that connects all the dots. It is not just businesses and corporate environments that need intellectual protection; artists of all kinds must protect their work, too. Individuals of different cultural backgrounds perform together and music is heard by people no matter the language or any other cultural barrier. It is important that something as precious as music should be protected and conserved. Intellectual property rights help in doing that. Intellectual property is the economic framework that underpins the music industry and other creative industries.

The music industry’s primary product is intellectual property, protected by copyrights, trademarks and the right of publicity. A majority of the terms in contracts concern the ownership and use of their property. Songs, plays, films, works of fine art, books and even some choreographed works are copyrightable.

Where is the link?

Musicians interact with intellectual property on a daily basis, but they are mostly unaware of how IP intersects with their creations. Copyright law does not protect your brilliant idea for a song, but when you actually write that song. Once a work has been created, lyrics or musical notes written down, arranged or recorded, copyright protection kicks in. IP gives default rights to the creators of the songs including the sole right to produce, reproduce, perform and publish the songs.

No person or body can copy an artist’s creation unless authorised by the musicians themselves or, in some cases, the recording studios. Intellectual Property Rights (IPR) award them this security, which helps them protect their music. The music industry depends on copyright. It is copyright that allows the industry to help artists and to gain a return on its investment; it can then plough back new funds and resources into the next generation of talent.

Copyright enables those who hold rights in a work to decide how, when and where it may be used and by whom. One of the purposes of copyright is to create the conditions for creators to be able to earn a living from their talent by getting a financial reward on the time and energy they put into producing a work and being recognised as its author.

The musicians who do not get their work copyrighted suffer from loss of revenues due to misuse of their work by websites that sell pirated music, or even by larger organisations who feel that if they copy the music, they have no legal obligation to the musician since the work does not bear copyright.

Potential Infringement

It is an infringement of copyright for any person to carry out, without the consent of the copyright owner, any act that is within the owner’s exclusive rights. There are two necessary components of copyright infringement: first, there must in fact have been copying of the plaintiff’s work; second, the amount copied must be of all or a substantial part of the plaintiff work.

If someone infringes your copyright, you will have legal grounds to pursue the guilty party to either pay you for a license, or compensate you for any financial loss you may have incurred. If they end up using your music without your permission, you are well in your rights to stop them from doing so and receive compensation for any earnings they have made off the back of your work.

Section 52(2) of the Copyright and Neighbouring Rights Act of Zimbabwe stipulates that in any proceedings for an infringement of copyright there shall be available to the plaintiff all such remedies by way of damages, interdict, attachment, the rendering of account, the delivery of infringing copies or articles used or intended to be used for making infringing copies.

Although a musical work may be protected by copyright, not every element of that work will belong to the copyright owner. Perhaps, most fundamentally, the ideas contained in the work are not protected by copyright, but only the expression of these ideas.

So why is music special

Music is a language in its own right and the field of music theory seeks to illuminate how this language works. The expression of your thoughts and ideas are worth protecting which is why copyright is critical to the survival of the music industry and its creators. At the same time, the opportunity to unlawfully acquire, and therefore infringe, copyright protected works is exponentially increased by the digital world. Copyright infringement causes damage to the music industry, which is why the industry should be committed to finding solutions to mitigate the damage, but this can’t be achieved alone.

Muvingi and Mugadza Legal Partners

Muvingi and Mugadza
Intellectual property department

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