Copyright and wrongs

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Mostyn Rischmueller of The Rights Lawyers.

The illegal use of music has artists, song writers and music publishers crying foul play demanding further measures be taken to protect their work and hold offenders accountable.

Mostyn Rischmueller of The Rights Lawyers shares his professional opinion with S&S and discusses music piracy and copyright in the Middle East.

Over the past few years, much has been made of the continuing slump in music sales worldwide, particularly with regard to the impact piracy and illegal downloading has had on the music industry as a whole.

It is important to note however, that in some regions of the world such as the Middle East, rights owners continue to face parallel issues relating to the illegal use of their music.

The impact new technologies and the internet have had on physical product sales are quite apparent, hence the increased importance for rights owners to focus on alternative sources of revenue, such as the licensing of their music.

For example, record labels, music publishers, performers and songwriters alike rely heavily on organisations that enforce their rights and collect royalties on their behalf, as they have done for many years. Royalties received through the licensing of secondary uses of their music are a prime example.

There are differences between first and secondary exploitation. For example, when a performance is recorded for commercial use and then sold to consumers, this is called first exploitation or use.

When that recorded performance is then broadcast on radio, television or the internet or is played in public (in shops, hotels, airlines, bars, etc), that is called a secondary exploitation or use.

As is made clear through copyright laws, the users of music cannot make such secondary use without the permission of the owner of such rights. In return for such permission, the rights owners will require the payment of a licence fee.

Currently however, no organisation exists in the Middle East that collectively representing music rights owners for the secondary exploitation of their rights.

This essentially means that the region seemingly remains a ‘black hole’ for the illegal use of music, which extends across all manner of industries. From those who generate revenue directly from the use of music, such as radio broadcasters, to those that stream music from websites or businesses that just play music to create an atmosphere; very few people are paying to use music as they should be.

As to the reasons why this remains a problem in 2008, when most music consumers around the world have been paying royalties for the use of music for years, this can be attributed to a couple of key issues.

In the UAE, amendments to the copyright law and regulations have been made to provide for the set-up of a collecting society. The last thing remaining is the implementation of a regulatory framework for such organisations to operate within. This is currently under review by the Ministry of Economy.

The economic rights for copyright owners are clearly defined under Article 18 of UAE Copyright Law of 2002 and although protections afforded to music rights owners under UAE law are clear, in particular the right to licence collectively and subsequent penalties for unauthorised use; questions of how and when the necessary regulations are introduced to govern collective licensing, and how UAE copyright laws are to be adequately enforced, remain.

As it happens in most parts of the world where collective licensing exists, collection ‘societies’ are privately run organisations regulated (to a degree) by local government; the primary purpose being to limit the number of societies representing any one group of rights owners and to ultimately ensure transparency and legitimacy.

It is with this in mind that rights owners have a real need to continue their lobbying of the UAE government with hopes to resolve the issue as quickly as possible.

Encouragingly, more and more record companies and music publishers are seeking local representation in the UAE and throughout the Middle East.

They are aware of the difficulties that exist locally, with regard to illegal use of their music and lost royalties, but are pushing forward regardless with the direct licensing of their repertoire, without the existence and support of collective licensing bodies.

Although far from an ‘ideal’ manner in which to approach licensing, whereby music users are required to enter into individual arrangements with each copyright owner, direct (or individual) licensing appears to be the only pragmatic way forward and sends a clear message of intent.

The world’s four largest record labels have all recently made arrangements to pursue individual licensing within the GCC.

So while many music users within the region struggle to understand (or are resistant to) the concept of paying for the use of someone else’s work, it is clear that rights owners do not wish to let the issue go unanswered any longer.

Their rights are derived from and protected under the UAE Copyright Law of 2002. Under the law, they may seek action before the courts to enforce their rights.

Collective rights management

A collective rights management organisation (or a collection society) is a body created through private agreements with rights owners, operating under the laws of the territory in which they are based.

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