Copyrights & Wrongs (Part 1)
The big deal in the small print
Sampling has put the copycats among the pigeons all over again, and it's more important than ever to know your rights...
Be warned: copyright is a rather dull subject. However, if you are a composer or 'user' of music, it is essential you know something of the do's and don'ts. As a composer, royalties could be at risk and as a user, infringement could mean having your collar felt by the music industry's PC Plod. Remember, ignorance is no defence in a court of law.
On my travels, I find that most people want to know how copyright can protect them or how they can operate within the law. The aim of this article is to shatter, as simply as I can, a few myths and explain a few mysteries.
Welcome to the world of music industry initials. Now, what do they all mean? Well, the Mechanical Copyright Protection Society (MCPS) looks after composers and music publishers. In other words, the copyright holders of music. The MCPS licences the use of their music and collects royalties on their behalf whenever their work is recorded. This is why the term 'mechanical' is in the name. It refers to the mechanical right copyright holders have to control the recording of their work in any way. This includes vinyl/tape/CD, dubbing onto a soundtrack for a TV or radio production, recordings made for playing down a phone line when you're put on hold or coming from the bottom of a tea mug when you pick it up.
The Performing Rights Society (PRS) looks after the same membership, ie. copyright holders of music. However, as their name suggests, they look after them whenever their work is performed. This can be on TV and radio, concert halls, discos, shops that play music to their customers, even places that have those cursed karaoke machines.
The membership of the Phonographic Performance Ltd (PPL) is made up of record labels. This is because not only is there copyright in the music on the record, owned by the composer/publisher, there is also a separate copyright in the actual sound recording. This is owned by the label, as they have usually paid for the studio, mastering, duplication etc.
Let me bring this into the real world. Steve Wright is playing a record on his afternoon programme on Radio 1. The stylus hits the disc and the music goes out to the masses. The BBC pay two royalties here: one is to the PRS for playing the music and the other is to the PPL for using that particular recorded version of it. In this instance, they do not pay MCPS because they are broadcasting, not recording. Now, John Peel calls in a band to record a session in the BBC studios for his programme. As the BBC are now recording somebody's music, they pay MCPS a royalty. When John Peel plays that session to the masses, the BBC pay PRS for playing the music. They do not, however, pay PPL. This is because the BBC made their own sound recording of the work. Got that? Good. The moral of this tale is, of course, don't start up a radio station.
Needless to say, it's a lot more complicated than this, but I'm trying to stick to basics here (honestly).
Talk of a record label (meaning any individual, band or company who releases a record) and you will probably start thinking of the EMIs and Polygrams of this world. Although they are arguably the biggest, they are by no means alone. We estimate that there are about 4000 labels in the UK at the moment, and although a lot of these are small, many of them are quite industrious, turning out a lot of high quality, diverse product. So who makes sure that any royalties due for the music reproduced on the record (by which I mean anything released to the public on vinyl, cassette or CD) they release goes to the correct composer? The MCPS. How? Read on...
The Copyright Act of 1988 gives copyright holders of music certain exclusive rights in their works. This includes the right to license others who wish to record or perform their work in any way. There are further restrictions, like tampering with the lyrics or making a derogatory version, for which you have to get direct permission from the composer, but as I have said, I'm trying to keep it simple.
With the introduction of the 1988 Act, more power was given to the publisher and composer. In essence, these strengthened rights are there for the benefit of anyone whose music is to be copied by somebody else. Permission must be sought in three stages: to copy the music in the first place; to make further copies and to put the copies into public circulation. These licences will usually be granted by the copyright owner, providing the new version does not tamper with the work as mentioned earlier. Royalties, though, will be payable for these permissions.
So, why does MCPS get involved in all this? As I mentioned earlier, we look after our composer/publisher members whenever their work is recorded. Our membership agreement authorises us to license our members' work on their behalf and to collect the royalties payable. This means that any label wishing to release a record featuring our members' work has to come to us to obtain the necessary licence - which is obviously much easier than the label having to chase up the individual composers to pay them their royalties direct. We have about 1100 composer/publisher members in the UK, and we also have reciprocal arrangements with overseas societies.
Let's go back to the rights that the composer/publisher has. Studio owners may wonder if they are affected. If you wanted to read the law literally, the master recording made in a studio technically does need a licence. However, as studios act as a facility for those making and exploiting recordings, MCPS would not normally look to the studio to obtain a licence or pay a royalty. MCPS has drawn up a code of conduct with the APRS for their studio members, which lays down basic operating procedures for APRS members to follow which will give them some protection if licences are not obtained. As a rule, if you are running a recording session and you have serious doubts over the origins of the material and the intentions of your client, give us a call.
The need to license the making of further copies affects the manufacturers and duplicators of vinyl, cassette and CD. If a manufacturer makes copies of recorded music for a label, and this music is an unlicensed copy, then the manufacturer could also be liable under the new act. If you are a manufacturer, whether your duplication capacity is 500 or 500,000 a week, this affects you. If you as a label have gone to a manufacturer recently with your master to be copied and they have asked you for your MCPS licence, this is what it is all about. As with APRS members, we have drawn up a code of conduct for the manufacturers. If you have a manufacturing capacity of any sort and have not seen this code, then call us to obtain a copy.
So you're a label, you're going to release a record and you want a licence. How do you get one? Simple. Give us a call and ask for an Application For Licence (AFL). Complete this as fully as possible and return it to us. If all information is adequate, we will process this form within seven working days. If royalties are due, we will send you an invoice. Once this is paid, we will then send to you your licence to manufacture and you can then go and get your copies made.
You may think this all sounds like unnecessary paperwork. Well, imagine you're a composer and somebody at the other end of the country (if not the world), releases a version of your best composition and makes money out of it. There is no central licensing body around, such as the MCPS. How are you going to know they released it? How are you going to ask them for your royalties?
Anyway, I mentioned earlier that royalties may not necessarily be due on your record. If you are releasing a record that contains purely your own original compositions which you have not assigned to a publisher, then generally you will not have to pay us any royalties. As soon as we have processed your AFL, we will just send you a Notification of No Claim and it won't cost you anything. You may then ask why you have to bother to tell us you are releasing a record of your own work? Well, you might know it's your own work but how well the manufacturer? Someone brings the manufacturer a master tape of 15 songs they claim are theirs. They may well be, but they forgot about the cover version of that lesser-known Grateful Dead song they have always played in their set.
Another instance where we would not ask for royalties is if your release contained music owned by non-members. We can only collect on behalf of our members. If your release features non-member music (we will indicate on your licence who they are), it is incumbent on you to get a licence and pay them direct.
One final example of music where royalties are not payable is Public Domain (PD) music. Music generally passes into the public domain 50 years after the death of the composer or, in certain cases, 50 years after its date of first publication, whichever comes last. Sound recordings also enjoy a period of 50 years after the date of first release. If you make a recording of music which is in the public domain, then there should be no royalties due. But be warned: once music passes into the public domain, it can be rearranged and that arrangement becomes a new copyright work. If you make a recording of a new copyright version of a PD work, royalties will still be due. (I only said I'd try to keep it simple!) I keep mentioning this word royalty without saying how much it is. We have recently been engaged in a long legal dispute with the British Phonographic Institute (BPI, one of the record labels' trade associations) over this issue. For records released on sale to the public, the rate is 8.5% of the published dealer price (PDP), or wholesale price, of the record. This is quite a bit cheaper than its retail price.
So, remember, if you are releasing a record, send us an AFL. It may be your own music with nothing to pay, but the manufacturer needs to see a licence. The licence won't cost anything if no royalties are due, and it will keep the manufacturer happy.
NEXT MONTH: Anthony Braine looks at copyright as it effects music for film and TV, and also the tangled web of home recording and sampling.
Feature by Anthony Braine
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