The music industry thrives on copyright. The difference between a successful and a yet-to-be successful musician is usually in the value of each of their intellectual property (IP). The more popular a musician is, the higher the chances that his IP will be worth more, because popularity may translate to higher record sales, more music downloads, more show bookings. A creative will only be able to derive economic benefits from his creativity if copyright is vested in him/her.
Copyright protects six categories of works: literary works, musical works, artistic works, cinematograph films, sound recordings and broadcasts. Of all these categories, all forms of musical creations may be protected by only three of these: music may be protected as a literary work, a musical work and/ or a sound recording.
This also means that over a single musical creation, an author may have three distinct copyrights: that is, copyright in the lyrics as a literary work, copyright in the lyrics and musical composition as a musical work and copyright in the sound recording, where an audio recording of the song is made.
The Copyright Act does not define literary works, but merely states that it ‘includes irrespective of literary quality, any of the following works or works similar thereto’, it then goes on to list the types of works. On that list, ‘poetical works’ is mentioned.
Written music can be classified as a poem, especially when written without musical notations. Literary works as a classification of eligible copyrightable works therefore protects the lyrics of a song, written without musical notations, whether intended or unintended for musical accompaniment.
Musical works as another category of copyrightable works protect musical compositions, irrespective of musical quality and also includes works that are composed for musical accompaniment.
Musical composition means both the lyrics and the accompanying music (which is depicted by musical notation- the use of symbols or words to visually represent in written form, the parts of a music that is to be sung by different parts of human voices, and the portion and manner to be played with musical instruments).
A literary or musical work comes into existence the moment it is written down (fixed). No additional act is required for copyright to be vested in either a literary or musical work, the moment it is written down, copyright subsists in it. A performance of the work or a studio recording of the song is not necessary for the subsistence of copyright in either a literary or musical work.
Sound recording is defined by section 51 of the Copyright Act as the ‘fixation of a sequence of sound capable of being perceived aurally (through the ears) and of being reproduced but does not include a sound track associated with a cinematograph film’.
When a song is sung and recorded on either a cassette, CD, flash drive, or a computer as an audio file, then it is a sound recording of a musical work and protected under the law. A song that is incorporated in a movie is not protected as a sound recording, (that is if it was created solely for the movie) though that does not mean that it is not protected either as a musical work or a literary work.
Literary and musical works are treated the same way in terms of the nature of rights exercisable and the term/duration of those rights, but sound recordings are treated a little differently under the law. The rights that a copyright owner has in his literary or musical works are broader than those conferred on a sound recording.
Also, the legal definitions of authors (for the purpose of determining ownership of copyright) of literary and musical works on one hand and sound recordings on the other hand are quite different. In the case of a literary or musical work, the author is the creator of the work. Whereas, in the case of a ‘sound recording of a musical work’, the author is the artist in whose name the sound recording was made. The definition of the author of a sound recording of a musical work in this manner, by the Copyright Act clearly shows that sound recording is aimed at protecting audio versions of musical works.
Since copyright is vested in the author of a work, it is clear that the Copyright Act intends to vest copyright in a sound recording of a musical work in the artiste who sang the song (the artiste in whose name the recording is made) and not the record label that signed the artiste or the music producer.
However, the practice in the music industry is that record labels sign contracts with artistes, that vest copyright in both the sound recordings and the musical works in them, rather than the artistes, so as to be able to recoup their investment in the production and promotion of the artistes’ songs. It is for this reason that it is desirable for artistes to always have legal representation at the contract negotiation and execution stage, so that they are not left with bare rights at the end of the day.
Copyright in literary and musical works lasts throughout the lifetime of the author and expires seventy years after the end of the year in which the author dies. In the case of a literary or musical work authored by a body corporate, copyright expires seventy years after the end of the year in which the work was first published. However, copyright in sound recordings has a shorter term of subsistence; copyright in sound recordings expire fifty years after the end of the year in which the recording was first published.
When a person’s copyright in a particular musical creation is infringed, if the copyright owner can show that the infringement occurred in respect of both his/her literary work, musical work and sound recording, then the infringement will be treated as infringement of distinct works in which copyright subsist.