Week 11 - Music Copyright + PDPA

Copyright in the composition

• Music for instrumental and vocal parts

• Has its own copyright (life + 70 years)

• Can be fixated by musical notation

• May include lyrics

Performance unprotected by copyright

• Human performance of the composition

• A performance is NOT copyright protected

  • Ephemeral performance alone is not fixated

  • It’s not the type of work protected by copyright

• Performers have limited rights

  • to authorise the recording of their performance

Copyright in the sound recording

• Sound recording of the human performance

• …of the “underlying” composition

• …is copyright-protected

  • Digital/analogue file that contains the recording sounds

Owners of music rights can assign copyrights in compositions or sound recordings entirely

• Creators of music may contractually assign their compositions and recordings to”

  • Brand

  • Video producer

  • Game developer

• Why would both parties agree to assignments?

  • Assignee wants complete, long-term control over use

  • Music creators want immediate, guaranteed payment

Bundle 1: “Publishing rights” to exploit the copyright in the composition

1. Mechanical rights

   • To reproduce and distribute the composition in audio-only formats

2. Sync rights

   • For use of composition synchronised with images in a visual medium (film, Tv show etc)

3. Performance rights

   • Public venue: Live performance or playback recording of underlying composition

   • Transmitting a sound recording of underlying composition via broadcast/streaming

Bundle 2: Rights to exploit the copyright in the sound recording

1. Master right to

   • Reproduce and distribute the composition in audio-only formats

2. Master use right

   • To reproduce/distribute in a visual medium

3. Performance-like rights

   • For playback of sound recordings in public venues

   • or via broadcast or streaming

Mechanical rights for the composition

• To reproduce and distribute the composition (melody/lyrics) that is underlying the audio-recording

• Songwriters own this right & can license for others to reproduce/distribute their work in exchange for mechanical royalties

  • Record labels: physical copies

  • Platforms: permanent digital downloads

  • Interactive streaming platforms: digital streams

Songwriters use intermediaries to exploit their compositions

• Music publisher

  • Helps songwriter by promoting the song and helps “administer” their rights  and works with

  • Collective Management Organisation that collects various royalties

Singer-songwriters use music publishers to get the composition recorded

• Music publisher act as rep for songwriters and help exploit their copyrights in compositions:

  • Help singer-songwriter find an artist to land a recording contract with a label

  • Help find other recording artists to cover the composition

Some songwriters don’t perform their own compositions

Songwriter seeks recording artist to record and release her composition for the first time

Songwriters use music publishers to “administer” their rights

• Grant license to use their composition

  • In other audio or visual formats, e.g., ads, films

• Overseeing collection of fees and royalties

Songwriters’ deals with publishers: Options:

• Songwriter assign publishers a share of ownership of their copyright in the composition to publisher, who gets:

  • Proportionate share of songwriting revenues generated

  • Proportionate share of control over licensing decisions

    • e.g. which label, platform, licensing for use in films

Collective Management Organisations

• CMOs help music users pay royalties to rightsholders for:

  • Mechanical rights for the composition

  • Performance rights for composition

  • Performance-like rights for the recording

Mechanical royalties: Collection and payment

• Some CMO collect mechanical royalties for use of your composition

• If distributed in US:

  • Mechanical Licensing Collective collects royalties from streaming platforms

  • Haryy Fox Agency collects royalties from:

    • Labels for physical copies

    • Platforms for permanent downloads

Mechanical royalties: Collection and payment in Singapore

• Few local songwriters, so:

  • Songwriter or publisher assume a more direct role with label and production to collect royalties

US law: Compulsory mechanical license

• Encourages covers through compulsory mechanical license

• Songwriters/publishers cannot refuse the license to reproduce composition and distribute copies

  • Assuming the following conditions:

    • Notify songwriter/publisher before distributing recording &

    • Pay mechanical royalties at stat rate

Derivative work

• Fundamental changes made

  • Requires permission/license from songwriter/publisher

Covers recorded outside USA

• Need to negotiate with songwriter/publisher

  • To obtain license

  • Royalty rate

Master right

• Copyright in sound recording of a musical performance

• Can be digital or physical

• Need not be professional recording

Record labels

• Companies that record the recording artists’ performance of the underlying composition

• Label typically owns master recording & accompanying rights

• Arrange to distribute and promote recordings

Unsigned artists and streaming

• Can use third-party service to 

  • Upload music on platforms like spotify

  • To deliver earnings to you

  • For audio-only covers:

    • To notify songwriter/publisher and ensure reproduction royalties are delivered to them

What about recording artists?

aka artists or performing artists or performers

• Typically do not own recordings

• Are paid artists’ royalties on sales/streams on their recorded performances

Sampling is different from covers

• Recorded snippets of others’ work in a new work

  • Almost always requires permission/payment

  • Almost never considered fair use

  • Almost never de minimis

• Hence requires permission/payment for use of BOTH:

  • Recording - master rights from label and

  • Composition/lyric - for the mechanical rights from songwriter/publisher

Re-recording restrictions

• In artists’ contract, label forbids re-recording for a period of years

  • Don’t want to compete against new master recording

The advantage of owning the master rights: Physical copies

• To reproduce/distribute master recording in audio-only formats

Synchronisation rights for composition

• Video producers clear rights to synchronise composition with images directly from songwriter/publisher

• No compulsory mechanical license scheme for videos

Master use right for sound recording

• Video producers clear right to use sound recording with its owner

  • Usually record label

Parties involved in licensing recorded music for video: The composition:

Decision making power typically based on share of ownership of the copyright

1. Music publishers

2. Songwriters

3. Labels typically own master recording and can decide

4. Recording artists 

   • May have no input unless

     • They own masters

     • Retain decision-making power in contract

     • Consulted as courtesy

What rights must be cleared?

For mozart pieces in public domain:

• Master use rights

• No need sync rights cause its in the public domain

Music videos

• Labels produce MVs

  • Labels clear sync rights to composition from songwriters/publishers

  • But label typically already owns recording

Performance rights

• In a public venue:

  • For live performance

  • OR playback of recording of underlying composition

• Transmitting sound recording of underlying composition via broadcast or streaming

Performance-like rights

• For playback of sound recordings in public venues

• Or via broadcast or streaming

Music in public venue

• Substantial number of persons

• Not just to family and social acquaintances

• e.g. club, bar, cafe etc

When a live act performs, what rights need clearance?

• Only performance rights

  • Right to perform the composition live in a public venue

• No playback involved

When you hear recorded music in a public place like a club, what rights need clearance?

1. Performance rights

   • Right to play back a recording of performance of the underlying composition in a public venue

2. Performance-like rights

   • Right to play back recording of performance of the underlying composition in a public venue

Who pays Performance Rights Organisation (PRO)?

• When performers publicly perform a composition

• Typically venue owner or event organiser pays:

  • PRO, COMPASS for performance rights

    • Then COMPASS pays rightsholders of the composition: songwriters & publishers

Who pays the PRO/CMO?

• If recording of composition is played back in public, then

• Typically the venue owner or event organiser pays:

  • PRO, COMPASS for performance rights AND

  • CMO, Music RightS Singapore (MRSS) for performance-like rights for the recording

    • CMO pays the rightsholder of the recording (e.g. music label)

      • The label pays artist royalties to performers according to contract

SG CMOs

COMPASS: performance rights

MRSS: performance-like rights

When you listen to a streaming service, what rights does it clear behind the scenes?

1. Performance rights to play back recording of underlying composition via streaming

2. Performance-like rights to play back a recording via streaming

   • Both via contracts

When you listen to a broadcast radio station, what rights does it clear behind the scenes?

1. Performance rights to play back recording of underlying composition via streaming

   • via PROs

2. Performance-like rights to play back a recording via streaming

   • via CMOs

   • Only some jurisdiction (USA not SG)

Playing broadcast radio in a public place

• Receiving a broadcast of a song and publicly playing it is exempted

  • No performance rights clearance needed from songwriters, publishers

  • No performance-like rights clearance from labels needed in SG

Playing a streaming service like Spotify in a public place

• Spotify accounts are for personal use

  • Pays for performance & performance-like rights for personal use NOT public use

  • violates terms of service

• Must get business account

Performance-like rights for artist who owns masters

• Outside USA: public venues and radio stations pay CMO based on plays

• To play back recordings on interactive streaming platforms, artist collect and pay comission to label

Notice and takedown provisions

1. Suffers primary liability for infringement by posting others’ musical work

2. If service knows of infringement, service also suffers secondary liability for post

   • Exceptions (YouTube) Not liable if

     • YT receives notice and takes it down

YouTube gives rightsowners of recordings options

• Rightsowners of composition and recording can

  • Ask platform to take it down

  • Or allow recording to stay

    • YT may have revenue sharing agreement

• Usually, rightsowners have indicated their choices to YT, and applied automatically

Cover videos

• Sync rights must be cleared unless revenue sharing arrangement

• No compulsory mechanical license or master use right

YouTube cover videos: Possible scenarios

1. Songwriter/publisher may still find infringing video and send takedown notice to YT

2. Maker of cover obtained sync license

3. Revenue sharing arrangement:

   • Allow covers of publishers’ composition

   • YT shares some of ad revenue with publisher

   • Cover artist may get share of revenue

Amateur concert videos: 3 potential violations

1. T&C of ticket contract

2. Performer’s right to authorise recording

3. Songwriter/publisher’s copyright in underlying composition

   • No permission to make/distribute a copy

   • If posted, may face notice & takedown

Short-form video platforms

• Licensed music clips

Personal data: NRIC/FIN

• Generally cannot disclose

• Except:

  • Required by law

  • healthcare

  • financial/real estate transactions

  • emergency

Procedure and enforcement

• someone makes a complaint to IMDA’s Personal Data Protection COmmission (PDPC)

  • fined

  • direct offender to act e.g. training

  • warning

• Publishes decided cases

Procedure and enforcement

• Organisation must make reasonable security arrangements to prevent unauthorised access

Notification and consent ***

• When organisation collects, uses or discloses personal data, must:

  • Notify of reasonable and specific purpose

  • Get valid consent by opt-in (Actual or deemed)

    • whether actually opt in or deemed consent from failure to opt out

• Exceptions for:

  • Publicly available data 

  • News

Consent: Deemed by failure to opt out

• More likely sufficient if

  • Individual unlikely to suffer adverse effects

  • Reasonable steps to ensure individual notified

  • Individual has reasonable period to respond

Consent: Deemed from providing data

• Voluntarily provide data for that purpose

• Reasonable that you would

  • e.g. give mobile number to book grab

    • deemed consent to be contact with plate number at arrival time

    • NOT deemed consent to receive future SMS about limo service

  • Consent for photos of identifable people in places NOT open to public may be deemed IF

    • Invitation states photos will be taken for the purpose OR

    • Obvious notice

Consent: Valid

• Organisation cannot require consent to collection/use/disclosure beyond of what is reasonable to provide product/service

No notification/consent: Publicly available data

• Personal data that can be observed in public

  • By reasonably expected means

• Location open to public with few restrictions

  • e.g. image of you in park, street, mall etc

• For social media:

  • Privacy settings set to public

  • Closed group that can be joined with minimal effort

  • Not restricted only to close circle

No notification/consent: News

• News activity by news organisation

  • In news business:

    • Licensed print newspaper

    • Licensed broadcaster

    • Newswire

    • Doesnt include online-only news outlets like Mothership