Monday, 24 September 2007

UK music copyright: an introduction

When you copy, use, or perform music, you have to worry about copyright, which is actually several different kinds of rights, which might be owned by different people, and which might be different in different countries too.

Why worry? Because it's complicated, and yet copyright infringement is something the copyright owner could sue you for (and in the UK, that's even if you didn't appreciate what you did was a breach of copyright), and in some situations, in some countries, you could be fined or even sent to jail.

Whether they can catch you or find you out, and whether the copyright holder or authorities decide to let it go or to do you, well that may be a different matter - but there's still the theoretical possibility that technically you could be sued, fined or imprisoned, so if you're cautious like me it's a good idea to be aware of when you can safely perform, copy or use music, and when you can't. (Not that that attitude helped me when the BBC got the videos which went with my BBC iPlayer post deleted from YouTube, which was the BBC's first ever YouTube take-down under the US DMCA - but that's a different story and their issue wasn't in fact copyright, but perceived confidentiality concerns.)

Trying to get a handle on copyright isn't made any easier by the fact that it's often difficult to figure out which country's approach should win out, especially with stuff on the Net where several countries can be involved. E.g. if you upload a copy of a recording to a server there could be several countries to consider: where the copyright owner of the music lives, where the copyright owner of the recording lives, where you live, where the server is located, what's the country of the company that owns that server, where a person who downloads the copy lives, etc etc. What a nightmare. And that's just one planet, one dimension (oh all right, three).

So, I'm not even going to try to think about anything outside the UK, in this post. Also, I'm only touching on music copyright, not video or writing. I don't claim to be a copyright expert and this certainly isn't legal or indeed any other advice, I'm just reporting on my own research and my personal views, and this is a basic and simplistic overview at that. I hope you'll feel free to interject (comments links below) if you think I'm wrong or have a gloss to add.

So, on that basis, here's a very basic outline of music copyright in the UK as I understand it - mainly from the viewpoint of those of us trying to make sure we don't get into trouble on copyright matters, but it may be helpful as an introductory guide for musicians and songwriters too.

What's copyright?

Copyright is a set of exclusive rights, a monopoly if you like, given by law for a period of time to the creator of certain types of works which are embodied in certain ways. The purpose of copyright is (supposedly) to incentivise creativity by allowing creators to make money from their work, while also allowing society to freely enjoy the fruits of that creativity after the copyright period has ended.

After expiry of the copyright period the work is out of copyright, also known as "in the public domain".

To demonstrate how music copyright works, let's take a simple piece of music, say a song:
  • A composer has written the song, or composition.
  • There could be sheet music for the song, which could be photocopied or scanned.
  • If someone sings or plays the song or even recites the lyrics, in a pub or club, they're performing it.
  • And their performance could be recorded, via audio or video, e.g. on CD or DVD.
  • The recording could be broadcast on radio, streamed on the Net, or uploaded to a server etc.
  • The song could be used on the soundtrack of a film, ad or video without the performer being shown.
  • The song could be re-arranged, sampled, re-mixed.
And I'm sure I've missed out some things you could do with a song. It's really not that simple after all.

As for the rights involved, they're even less simple. Here goes, and remember this is a simplification!

Composition or creation

The composer or songwriter of the song automatically has the copyright in the song (often signified by the © symbol) as soon as it's embodied in some permanent form, e.g. making a recording or writing sheet music - that's the rights in relation to the music and lyrics both, including the sole right to:
  • copy or reproduce it
  • perform it publicly
  • record or adapt it - including sampling or remixing ("synchronisation" is used to refer to combining the music with a visual image, e.g. in a video, film or webcast), and
  • broadcast it (which includes a podcast or vodcast / videocast / webcast / internet radio, whether by download or streaming).
Copyright also includes the exclusive right to authorise or stop others from copying, recording it etc. The composer will also have those rights in relation to any adaptation of the song, i.e. to perform the adaptation publicly, record it, authorize others to do that, etc.

If more than one person collaborated in writing a song, it can be messy unless they've agreed clearly (ideally in writing which people can point to afterwards) who owns what or how to split the royalties. E.g. the dispute over the famous organ hook in Procol Harum's A Whiter Shade of Pale, which organist Matthew Fisher won - for now anyway.

Copyright is an automatic right although it's advisable from the composer's viewpoint to mark the work with the © symbol, the name of the copyright owner and the year of publication, according to the UK Intellectual Property Office. (Also, if you're a composer, beware of copyright registration agencies and the like - in the UK you don't need to register anything to get copyright, you get the rights when you first write out the song or lay down the track. The issue really is one of proof - you want to be able to prove later down the line that you wrote the song, not someone else. If you mail it to yourself in an envelope registered mail or special delivery, and keep the envelope unopened, you can then open it in court in future if you need to sue a plagiarist. You don't necessarily need to pay a copyright registrar, although registration may be able to help in the evidence stakes.)

So back to the position of a user, if you sing or play a song in public (karaoke, anyone?), strictly you need permission from the song's copyright owner. If you record it, again ditto, and that includes including it in a video, a game, ringtone, etc. They may of course charge for their permission, whether it's a one off fee or ongoing royalties e.g. a cut of profits from every recording you sell, etc - that is after all how they can get rewarded for their creative efforts.

You can't copy their sheet music or even lyrics without permission, either.

You could perform their song privately, e.g. sing it in the shower, and you should be OK - unless of course you're webcasting or podcasting it! (No I do NOT use a webcam that way. Unless there's enough money in it. Hmmm.)

A trap to note: copyright stops you from copying, publicly performing etc a "substantial" part of the song unless the songwriter OKs it. "Substantial" isn't measured by percentage e.g. 90% of the song, it's a qualitative rather than quantitive test, so if e.g. you publicly performed just a few notes but they were the distinctive "hook" that everyone recognises that song by, strictly you could be done for it.

Another trap: you can be sued even if you genuinely didn't realise that what you did was a copyright breach. Guity until, well, guilty. Nice, innit?

A composer also has "moral rights" in the music, but I'm not even going to start on that.


Someone who sings or plays the song has separate performer's rights (performance rights) in relation to their own performance, including session musicians (and they should have got the composer's permission to perform it in public or to record it). It may be that session musicians or other musicians involved will have signed away their performer's rights to the record company or whoever, and it usually is the case - but not always.

In the UK performers' "equitable remuneration" rights to payment belong only to record companies, although performers are entitled to seek their share of that from the record companies (in relation to radio or TV broadcasts of the recording), whereas in other parts of Europe both record companies and performers have direct rights. UPDATE: However in the UK performers don't have equitable remuneration rights in relation to "on-demand" streaming of the recording e.g. over the Internet (audio or video), as opposed to when it's broadcast on the radio or TV or played in a club, because of a technicality in the law.

The songwriter and performer could be the same person, and often is, but the rights are still separate.

I don't know who'd have the rights to the solo or duetting Guitarbot's performance, probably the programmer as we don't recognise "human" rights for robots yet!

Sound recording

The producer who's produced a recording of the song (e.g. a record company) has separate rights to their own recording (that's the P symbol you see on CDs), and again they should have got permission from the songwriter. But even the songwriter would need the producer's permission to copy that particular sound recording.

The record producer strictly has the rights in the recording, but if they work for a record company the rights would be the company's, or if they're independent they've probably agreed for a fee that those rights should belong to the company.

Dealing with rights and making money from them

A copyright owner can sign their rights away, temporarily (e.g. for X years) or permanently, e.g. in return for a one-off price, or royalties or a cut of the profits on every sale of recordings of their material.

They can sell or license the full copyright, or only certain rights (e.g. just the right to include the song in videos, but not the right to perform it publicly), and even "rent" rights out e.g. let someone else have certain rights for X months.

Music publishers

So, songwriters often make deals with music publishers where they sign away many of their rights in return for a royalty, maybe an advance, etc, because the publisher usually has better contacts and resources to exploit the song commercially. (Naturally, the publisher also gets a big cut.)

Record companies

Similarly musicians and singers may (and usually do) sign away their performance rights in recordings to record companies because the record companies have historically had the resources and contacts to pay for studio time, get session musicians and producers and engineers, and market and distribute the recordings, etc. In return the performer might get an upfront advance, royalties, and the like.

Is anything legal? Is copyright forever?

You can do a few things legally without the copyright owner's consent, but the exceptions vary with the country.

Fair dealing is one example in the UK, where copying etc for review or criticism or reporting of current events is OK, or a a single copy of a "reasonable proportion" of the work for non-commercial private study. But I gather that in Australia you can't even make copies for private research, strictly speaking. And in the USA the concept of fair use is similar, but broader, so some things may count as fair use there which wouldn't be allowed as "fair dealing" in the UK.

There are other limited exceptions or permissions, e.g. making an accessible version of a legal copy if you're visually-impaired, or for educational establishments (with limits).

Another trap: many people seem to think that personal non-commercial use is OK, e.g. making a copy for a friend - but it may not be, depending on the country. Even videoing a TV programme to watch later (time-shifting) is only legal in the UK because the law specifically said so - if it hadn't, it would be illegal.

But copyright isn't forever - it lasts only for a certain time, after which the work goes out of copyright, and into the public domain. The copyright owner will no longer be able to stop people from publicly performing the song, making copies of the recording, etc. And the public will be able to benefit freely from the creator's work, thereafter.

The duration of copyright varies with the type of right and the country etc. In the UK, a songwriter's copyright ends 70 years after the composer's death. But the copyright in a sound recording ends 50 years after the calendar year of the first release, hence the to-do about Elvis recordings coming out of copyright a couple years ago.

Remember the two are separate. So a sound recording might be in the public domain, but with a long-lived composer you may still need the permission of the songwriter or whoever's inherited their copyright, before you can perform the song publicly etc.

How do you know if a writer's been dead long enough for you to use their stuff as you wish? The Public Domain Works project is trying to build up an open database of works in the public domain, which people can contribute to - it hasn't got very far yet as it's still earlly days (for starters there's a list of composers whose works are public domain as they died more than 70 years ago), but it's an excellent idea and they still need volunteers to help in a number of ways.

But remember you also may need to check the law of the country concerned, ideally you should consult a copyright lawyer, e.g. supposing country X's copyright period is the composer's life plus 100 years, and 80 years after the death of a composer from X you want to use their music in the UK, is that OK because you're in the UK public domain period? I really don't know.

So what's the MCPS, PRS, PPL etc?

Right, now on to the alphabet soup.

In the UK and many other countries, there are special societies which were set up to represent composers or musicians, licensing works and collecting royalty payments on a collective basis.

These copyright collectives or copyright collecting societies were meant to make life easier not just for creatives but also for those trying to license or buy rights from them.

When songs are played on the radio, for instance, the radio station pays royalties to the collecting societies, who then pay the composers and musicians. How they decide who gets what and how much seems pretty complicated, and I'm not sure how it works if the composer isn't a member of the society, for instance.

Anyway, in the UK the MCPS-PRS Alliance (see Wikipedia) represents composers, songwriters and music publishers (MCPS stands for Mechanical Copyright Protection Society and PRS for Performing Rights Society). They handle royalties for composers etc when their music is recorded or publicly performed or broadcast.

But of course life isn't that simple. There's also the PPL or Phonographic Performance Ltd, which deals with royalties for record companies and performers in relation to sound recordings, when sound recordings are broadcast or publicly performed in the UK (e.g. played in clubs, shops or cafes), including Internet as well as radio and TV broadcasting. UPDATE: However Internet streaming is considered "making available" rather than "broadcasting" so performers have no "equitable remuneration" rights in relation to that.

This explains the differences between the PRS and the PPL well.

Just to complicate matters there's also the VPL or Video Performance Ltd, which handles the broadcast or public performance of music videos. Phew!

Copyright collecting agencies are generally set up on a per country basis, which makes sense, but they have networks of reciprocal agreements with each other to collect for each others' members whenever works are used in their own countries, and then pass royalty payments on to each other.

What about Creative Commons?

I'm a Creative Commons or CC fan. In fact this blog is licensed under Creative Commons: text and images etc. But I'm not going into detail on CC here.

Songwriters and recording artists can license their music under Creative Commons too. They have several types of licences but a popular one lets people copy, remix etc the music for free, but only for private non-commercial use, while anyone who wants to use it commercially would have to get the copyright holder's permission (and therefore would have to pay a fee or promise a cut of revenues to secure that permission).

CC sounds a great compromise in terms of getting users and fans to help publicise your work by giving copies to friends, while stopping outright commercial exploitation, but I should add one warning - I've heard it said that if you license a song under CC, then you may not be able to join the MCPS etc afterwards in order to get paid for radio airplay of that song and so on. I've not looked into that properly, but until I've figured that out I have to say I'm not going to license my own songs under CC yet. Checking this out properly is on my to-do list... if anyone knows the ins and outs of that, do please comment.

Other sources and links

So, that was a canter through UK music copyright as I understand it. I hope it's been helpful. There's lots of other info if you want it. You could read the Copyright, Designs and Patents Act 1988 if you fancy some light bedtime reading. Alternatively, try these sources:

1 comment:

Rob said...

A very useful overview to music copyright. Thanks. I was looking for something else (when does copyright become officially enshrined in law? at the moment of writing, performing, etc) but this was stimulating