THE legal principle ignorantia juris non excusat, meaning: Ignorance of the law is no excuse, underscores the fundamental responsibility that individuals have to abide by the law, regardless of personal awareness of its intricacies.
This principle is significantly relevant for artists, who navigate the often-complex realm of intellectual property rights (IPR), particularly copyright.
To safeguard their own creations and avoid inadvertent infringements, artists are prudently advised to cultivate an understanding of the legal framework governing copyright protection.
This proactive approach empowers artists to navigate the creative landscape confidently, respecting the rights of both themselves and fellow creators.
A wave of copyright claims recently plagued both local and international artists, leaving many wondering what is behind it all. Is it simply a lack of understanding of intellectual property rights (IPR) or a blatant disregard for them?
On the local front, gospel super couple Baba Charles and Amai Olivia Charamba successfully caused YouTube to pull down dancehall chanter, Jah Signal’s Shinga Muroora and Tenga Mafuta renditions of their two songs which were reproduced without their consent. They latter made peace after Jah Signal apologised to the Charambas.
In a related matter, multi-award-winning dancehall musician Winky D was forced to pull down a entire catalogue of songs he recorded at the now defunct Kenako Music following a copyright tiff.
In simpler terms, IPR protects creations of your mind, like inventions (patents), designs (trademarks), and artistic works (copyright). In an increasingly knowledge-based economy, these rights fuel growth and competition across industries.
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Black’s Law Dictionary defines copyright as the exclusive right to copy, reproduce, adapt, distribute, perform and display an original work. Zimbabwe’s Copyright and Neighbouring Rights Act (Chapter 25:06) echoes this, emphasising the author’s exclusive right to control their work. This includes literary, musical and artistic works, sound recordings and broadcasts.
The Act also spells out consequences for infringement, both civil and criminal. So, copyright protects both the financial rewards (economic rights) and the creator's reputation and accreditation (moral rights) for a limited period. After 50 years, others can use the work without permission, but until then, it is off-limits.
Remember, a single song can involve multiple rights holders. The sound recording (beat), lyrics and distribution rights might belong to different people. There are also “related rights” for performers, producers and broadcasters. It is all about acknowledging their contributions.
The key takeaway is that only the original creator or authorised individuals can reproduce or adapt the music. Using it without permission is simply illegal.
Unlike trademarks and patents, copyright arises automatically upon creation, there is no registration required. The music itself is the proof of ownership. Section 20(f) of the Act makes things clear: Adapting music without permission is illegal.
If one’s copyright is infringed, he or she has options; they can sue for damages, get a court order to stop the misuse or even have the music removed from online platforms. The law protects the artists rights.
So, what about the recent claims? Are they due to ignorance or arrogance? But remember, respecting intellectual property benefits everyone, fostering creativity and innovation in a shared musical landscape. Let’s keep the music playing, the right way.
Here are some of the keys to a basic understanding of copyrights in music.
Basic music elements and the law: Chords and chord progression
A chord is a combination of three or more notes played simultaneously and are considered part of the common stock of musical raw material and are not copyrightable. Similarly, useful successions of chords are called “chord progressions”— because of their scarcity are not copyrightable.
Melody
Melody is essentially the recognisable “tune” that catches your ear and stays with you. It is a series of musical notes played one after another, arranged in a way that creates a distinct and memorable sequence. It is a musical work and, therefore, protected under the law.
Harmony
In simple terms, it is defined as a combination of different tones played simultaneously, where multiple notes ring out at the same time, creating a new "whole" sound.
Rhythm in music essentially refers to the pattern of sound and silence, including their duration and emphasis, that occurs over time. It is like the heartbeat of a piece, creating movement and structure.
While there are no bright-line rules, some courts have held that rhythm and harmony are generally in the public domain and not “original”, while melody is often determined to be “original” and protected by copyright.
Borrowing creative content: Sampling, mash-ups, and remixes
Sampling involves taking part of an existing sound recording and incorporating it into a new work. For example, a piano line or guitar riff from one recording might be used as a melody in a new recording (instead of re-recording the melody or creating a new melody) or the audio from drums or a piano might be incorporated into a new sound recording as the rhythm or melody of the new work.
A remix involves taking an existing sound recording and adding, changing or removing sounds to make a new version of the work.
A mash-up involves combining two or more samples of sound recordings into a new work. This may include merging the vocals from one song with the instrumentals from a second song or blending multiple instrumental or vocal samples to create new melodies or harmonies as part of a new work
In many cases, samples, remixes and mash-ups will infringe a copyright owner’s exclusive rights, unless the use is authorised or qualifies for a legal exception or limitation, such as fair use. Because samples, remixes and mash-ups all use pre-existing sound recordings, not only are those recordings themselves implicated, but the underlying musical works they embody may be implicated as well. Consequently, licences from both the sound recording and musical work copyright owners which in many cases can be different may be necessary.
Some artists, however, allow remixes or mash-ups with specific conditions, like non-commercial use or sharing profits.
Interpolations
An interpolation involves taking part of an existing musical work (written music itself, including melody, harmony, rhythm and potential lyrics and incorporating it into a new work. While sometimes confused with sampling a sound recording, interpolating a musical work is different because it does not involve using any of the actual audio sounds contained in a pre-existing recording.
Instead, new audio is recorded. In many cases, similar to samples, interpolations may infringe a copyright owner’s exclusive rights. However, unlike samples, interpolations only implicate the pre-existing musical work, which means that only a licence from that musical work’s copyright owner may be necessary. Permission from the copyright owner of a pre-existing sound recording is not necessary when interpolating a musical work, regardless of how similar the new recording may be to an old recording.
Covers
A cover also called a “cover song” or “cover recording”) is made when a previously recorded musical work is re-recorded into a new sound recording. Some covers seek to imitate the earlier recording, while other covers apply different interpretations, styles and sounds and may create new arrangements. Similar to an interpolation, only the musical work being re-recorded is implicated when creating a cover.
To make a cover one needs secure a licence from the musical work copyright owner.
Fair use
The concept of fair use in Zimbabwe is captured by the Act through Part 3 and the Berne Convention for the Protection of Literary and Artistic Works, Art 9(2). Fair use involves imposing some limits or restrictions on copyright protection in the sense that some uses of protected works are permitted without the authors consent. Sometimes, in these cases, payment is required, sometimes not. Fair use is not clear-cut and cases are usually dealt with on a case-by-case basis.
When determining whether a work is a fair use, and not an infringement of copyright, the factors to be considered include, among other things, the purpose and character of use, including whether such use is of a commercial nature or is for non-profit educational purposes. In addition, Parody is a creative work designed to imitate, comment on or mock its subject in a humorous or satirical way. It typically focuses on a well-known work, style or person, exaggerating their characteristics for comic effect, has also been considered as fair use.
International conventions
Zimbabwe is a member of the international community and is signatory to some of the world’s major conventions which provide for the protection of copyrights. They include the following:
The Berne Convention: The first and major international convention in the area of copyright. Among other things, it states that copyrights accrue at the creation of an original work and does not require additional registration, as the work’s fixed authors are entitled to all copyrights in their work and to any derivative works unless and until the author disclaims them or if they expire.
The TRIPS Agreement (1994), among other things sets down minimum standards for various forms of protection of intellectual property regulation as applied to nationals of other World Trade Organisation members.
The WIPO Copyright Treaty (1996), in essence, provides additional protection of copyright deemed necessary due to advances in information technology since the formation of previous copyright treaties before it.
The Rome Convention (1961) provides for the recognition for the rights of performers, phonogram producers and broadcast organisations.
Debunking common copyright misconceptions
A popular misconception is that the copying of seven seconds or less is always fair use. However, the reality is that the amount of material used is only one factor considered in the fair use analysis. Seven seconds could still constitute infringement depending on the nature of the work, its purpose and its impact on the original market. It's not a magic number for automatic fair use.
Another misconception is that disclaimers protect against infringement. However, merely stating “no copyright infringement intended” or repeating the fair use law does not absolve you from liability. These disclaimers are widespread online myths with no legal basis.
It is paramount to recognise that requesting permission to use copyrighted material does not inherently guarantee its usage. In the absence of explicit, unequivocal approval, one must assume the request remains denied.
Therefore, when navigating the intricacies of copyrighted material, seeking proper guidance is essential to ensure compliance and mitigate potential legal ramifications. Reliance on unfounded assumptions and misinformation can inadvertently lead to detrimental consequences.
- Clinton Chipo is a legal practitioner, conveyance and notary public at Uriri Attorneys at Law.
