What the law says about GHAMRO: A time for reflection? Ep 4/12

OPERATION OF THE GHANA MUSIC RIGHTS ORGANIZATION

As earlier stated, the Ghana Music Rights Organisation was established in December 2011; its aim was to collect royalties from the public performance, broadcasting and communication of its members’ work and to distribute the royalties collected to the members. The organisation has a current membership of over 4,000 made up of artistes and composers from all regions across the country. 

Artistes become entitled to royalties whenever their work is broadcast, communicated to the public or publicly performed. Section 37 of Act 690 provides the instances when an artiste becomes entitled to royalties. The section states,

(1) Where in a public place by means of broadcasting, cinematography, jukebox or other apparatus, a sound recording or audiovisual work is used the authorised performer and producer of the sound recording or audiovisual work are entitled to royalty in accordance with this Act.

(2) An owner of copyright is entitled to collect royalties for the live performance of the copyright work or for the public performance of the recorded copyright work.”

For the avoidance of doubt, Act 690 clearly defines these terms in Section 76 the interpretation section as follows:

A broadcast is defined “as the transmission of copyright works for reception by the general public over a distance by means of radio, television, electromagnetic emissions, light beams, wire, cable or other means

 Communication to the public is defined as means the transmission, other than broadcasting, by wire or without wire, of the images or sounds or both of a work, a performance or a sound recording in such a way that the images or sounds can be perceived by persons outside the normal circle of a family and its closest social acquaintances at a place or places so distant from the place where the transmission originates that without the transmission, the images or sounds would not be perceivable irrespective of whether the person can receive images or sounds at the same place and time, or at different places or times individually chosen by them;

A public place includes a building, place or conveyance to which for the time being the public are entitled or permitted to have access, without a condition or on condition of making a payment, and theatres, hotels, cinemas, concert halls, dance halls, bars, clubs, sports grounds, holiday resorts, circuses, restaurants and commercial banking and industrial establishments;

Public performance means

(a) in the case of a work other than an audiovisual work, the recitation, playing, dancing, acting or otherwise performing the work, either directly or by means of any device or process;

(b) in the case of an audiovisual work, the showing of images in sequence and the making of accompanying sounds audible; and

(c) in the case of a sound recording, making the recorded sounds audible, at a place or at places where persons outside the normal circle of the family and its closest acquaintances are or can be present, irrespective of whether they are or can be present at the same place and time, or at different places or times, and where the performance can be perceived without the need for broadcasting or communication to the public within the meaning of the definitions of “broadcasting” and “communication to the public”

A practical illustration of what constitutes a public performance is provided in the south African case of SOUTH AFRICAN MUSIC RIGHT ORGANISATION LTD V TRUST BUTCHERS (PTY) LTD 1978 (1) SA 1052.

In the case of SOUTH AFRICAN MUSIC RIGHT ORGANISATION LTD v TRUST BUTCHERS (PTY) LTD (supra), the Defendant owned a butchery. It had on its premises a radio and from time to time operated the radio to receive broadcasts from the South African Broadcasting Corporation, and which broadcasts were emitted through a loudspeaker on the premises. At the time, the radio was being operated, the South African Broadcasting Organisation would play a fair number of musical works. The South African Music Right Organisation Ltd contending that the Defendant had performed the works in public, brought an action to prevent the Defendant from continuing to make said broadcasts available without the authorisation of the South African Music Right Organisation Ltd.

The Court speaking through Addleson J, stated,

“There is clear ad acceptable evidence from Mr. Bell, an inspector employed by the Plaintiff and his assistant, Mr. Chauke that…they visited the Defendant’s premises and heard musical works playing in the butchery…clearly audible to staff and customers of the butchery…I find therefore that the Defendant regularly caused public performances to take place…of musical works broadcast by the South African Broadcasting Corporation and received by the radios then in the butchery.”

The inference drawn from this holding is that once you publicly broadcast any literary work, you are liable to pay royalties to the requisite music rights organisation. It is also apparent from the ruling that it is immaterial the means by which the broadcast to the public was made.

The test for what constitutes a public broadcast is first espoused in the case of HARMS (INC) LTD AND CHAPPELL & CO LTD V MARTANS CLUB (1927) 1 CH 526. The court in the case stated as follows,

‘The question whether a work is performed or a sound recording, film or television broadcast seen or heard in public is solely one of fact. In determining this question, the following considerations and tests have been applied: whether there has been admission of any portion of the public with or without payment to the injury of the author, i.e. to say, of the class of persons who would be likely to go to a performance if there was a performance at a public theatre for profit, or whether the performance was private or domestic, a matter of family or household concern only.’

Any performance which is not domestic or quasi-domestic will be regarded as in public even if only a few members of the public are present or that no charge for admission was made”

By: Kwabena Frimpong Mensah Esq and Adwoa E Paintsil Esq