MUSIC LAW IN GENERAL
Music law is a particular field of entertainment law that involves (among others), issues such as music publishing, the management of band’s business, contracts and copyright law. The knowledge of the regulations related to intellectual property rights in the music industry is crucial for musicians, songwriters, performers, composers, music producers, business managers, concert promoters, music publishers etc.
It is common knowledge that the musicians are extremely exposed to the danger of exploitation by the publishers of the music. In every country, musicians can become a member of specific unions and associations to protect their rights and to gain additional support for their contribution to the entertainment industry.
Musicians’ Intellectual property rights are subjects of various international and national regulations, in particular:
1. The Berne Convention for the Protection of Literary and Artistic Works (1886);
2. The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961);
3. The WIPO Copyright Treaty (1996);
4. TRIPS The Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement, Annex 1C (1994)
In the European Union, relevant acts are:
1. Directive 2006/115/EC of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property;
2. Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission;
3. Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society;
4. Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights.
Most of the countries around the world incorporated the mentioned international regulations to their legal systems and they recommend effective tools to protect musician’s works.
INTELLECTUAL PROPERTY RIGHTS IN MUSIC INDUSTRY: THE GLOBAL MUSIC REPORT 2016 AND THE EUIPO STUDY 2016
Organizations which care of the protection of IP rights in the music industry, such as the Federation of the Phonographic Industry (IFPI) or the European Observatory on Infringements of Intellectual Property Rights (the Observatory, the EUIPO), published a few reports showing issues related to the effectiveness of the protection of IP rights in music industry.
The first of the mentioned documents, the IFPI Global Music Report 2016 (April)[1], outlines that:
“global music revenues increase 3.2% as digital revenues overtake physical for the first time. Digital sales contribute 45% of industry revenues; overtake physical’s 39% share. Streaming revenues up 45.2%, helping to drive 3.2% global growth. Music consumption is exploding globally, but the “value gap”[2] is the biggest brake on sustainable revenue growth for artists and recorded labels. The global music market achieved a key milestone in 2015 when digital became the primary revenue stream for recorded music, overtaking sales of physical formats for the first time. Digital revenues now account for 45% of total revenues, compared to 39% for physical sales” .
The recent study of The European Observatory on Infringements of Intellectual Property Rights (May 2016)[3] shows the enormous scale of the economic impact of counterfeiting and piracy. The study shows that the problems can occur through physical or digital channels (for instance, through the purchase of fake CD’s or downloading of illegal content).
According to the main findings of said study, “the recorded music industry lost approximately EURO 170 million of sales revenue in the EU as a consequence of the consumption of recorded music from illegal sources. This total corresponds to 5.2% of the sector’s revenues from physical and digital sales. These lost sales are estimated to result in direct employment losses of 829 jobs” .
Additionally, the study points out that “if the knock-on effects on other industries and on government revenue are added, when both direct and indirect effects are considered, infringement of IPR in this sector causes approximately €336 million of lost sales to the EU economy, which in turn leads to employment losses of 2,155 jobs and a loss of €63 million in government revenue”.
The studies are important contributions to the awareness of the problem of effective protection in the music industry.
COPYRIGHTS IN MUSIC
Copyright is a form of legal protection given to many kinds of intellectual creations such as musical compositions or songs, lyrics, records (CD, singles, cassette, etc.) poems, books, films, TV shows or computer software.
In music industry, copyrights can protect both:
1. songs (which usually consists of a melody and may include lyrics),
2. recordings (CD, mp3, cassette, and any other recording).
Song is automatically considered as a copyrighted work. There are only two requirements to get such protection: originality and sufficient tangible form. The owner of the copyright has the exclusive right to:
1) Reproduce the work;
2) Distribute copies of the work;.
3) Perform works publicly;
4) Make derivative works (making a remix of a previous song or a parody lyric set to a well-known song).
6) Display the work, it occurs rarely i.e. displaying the song’s lyrics and musical notation on a karaoke machine.
No one can use any musician’s work without the permission or authorization (usually it is given as a license) issued by the owner of the copyright.
Musicians can register their songs in the relevant collecting society organizations in order to be paid for their song played publicly. The paid fees are called “royalties”.
Institutions which generally pay royalties to copyright owners for playing their songs are televisions, radios, restaurants, clubs or shops etc.
TRADEMARK IN MUSIC
A trademark is a word, name, symbol or device, or a combination of them, used by a business in commerce to identify its goods and services and to distinguish them from goods or services of others businesses.
A music band, a singer, a Disc Jockey, etcetera, may consider protecting its name or a title of a song as a trademark .
In the music industry, a band may obtain a service mark on its name to be used in connection with its live performances (entertainment services) and may also obtain trademarks on its name in connection with the sale of merchandising products such as t-shirts, posters, etc.
In the running of a music business, musicians should take the role of an entrepreneur, by thinking in the medium/long term period.
Before registering the trademark, a trademark specialist as an IP Lawyer should research if the chosen band name is available in the specific country of interest.
The registration of the trademark can be national, international or regional (for example, only in Spain, for the European Union (EUIPO) or through the World Intellectual Property Organization – WIPO). After successful registration of the trademark, it is recommended to check if the trademark is used or applied for by others, for example, a competitor in the market (e.g. another band). This can be done by activating a trademark watch service through an IP specialist, checking all new trademark applications filed in selected countries of protection. Once ordered the watch service, the owner of the trade mark receive periodical full reports of identical or similar trademarks filed by third parties. On the basis of such information, the owner can then take appropriate actions to prevent the others from using their valuable IP rights.
DESIGN IN MUSIC
A design is the external appearance of a product, including its shape, configuration, texture, combinations of color, having an aesthetic value. The design can be protected nationally, regionally or through and international application with the World Intellectual Property Organization (WIPO).
In the European Union, designs can be registered and unregistered: protection for a registered community design lasts up to 25 years and is subject to the payment of application and renewal fees every 5 years. The unregistered European design lasts for 3 years after it has been available to the public (e.g. through its publication or commercial launching). Registered European designs generally offer more reliable protection than unregistered designs.
In the music business, design protection may be useful to provide the owner with exclusive rights on (among others devices):
– album covers,
– album leaflets,
– promotional materials,
– artist’s representative symbols.
We invite you to follow our blog and our next articles in the music law series.
Authors:
Riccardo Ciullo
Judyta Kasperkiewicz
[2] “Value gap” is a gap caused because of circumventing the normal rules that apply to music licensing; it’s using by some major digital services.
[3]https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/resources/research-and-studies/ip_infringement/study7/Music_industry_en.pdf
