Exploiting arrangements of traditional (gospel or folk) music in South Africa

Last year, there was wide media coverage of infighting within South Africa’s sole music collecting society, the Southern Africa Music Rights Organisation (SAMRO). Several issues were subjects of agitation within SAMRO and between SAMRO and some of its members. There were disagreements over the issue of rules regarding full membership qualification, SAMRO’s investment in a Dubai ‘Ponzi’ scheme, the construction of SAMRO House and SAMRO’s royalty distribution rules.

...rules are rules

One key issue arose from a publication by City Press regarding what SAMRO calls the ‘16.7% arrangement rule’ as it applies to arrangements of traditional gospel music, traditional African music or folk music. According to SAMRO CEO, Nothando Migogo, “where an arranger creates an arrangement, he (the arranger) receives 16.7% of the copyright in the new arrangement while the balance goes to the composers of the original work because the presumption is that original work forms the basis (and thus lion’s share) of the new arrangement”.

What does the Copyright Act say about arrangement of music?

By virtue of section 6(f) of the South African Copyright Act, copyright in a musical work entails the exclusive right to do or authorize the making of an adaptation of the work. An adaptation in relation to a musical work “includes any arrangement or transcription of the work, if such arrangement or transcription has an original creative character”: see section 1(1)(b) of the Act.

If A owns copyright in a musical work and B wishes to make an arrangement of A’s musical work, B would require permission from A in order to do so. This is because such arrangement is an adaptation of A’s work and he (A) has the exclusive right to make such an arrangement or authorize anyone, in this case, B to do so. A would not be obliged to give permission but if he does give permission, authorship (and copyright) in the arrangement would be vested in both A and B as joint authors. Under section 1 of the Copyright Act, a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not separable from the contribution of the other author or authors. Copyright in a work of joint authorship would belong to all the authors of such work.

Orphan works or public domain works?

If the author/composer of a musical work is not known or copyright in a musical work has expired and B wishes to make an arrangement of such work, there would be no one or no known person to obtain permission from. In the case where the original author exists but is not known (an orphan work), both B and the unknown author would be joint authors of the arrangement. 

However, where the original work is in the public domain, would B’s arrangement belong 100% to B? If it did, would another arrangement of the original work by say C, constitute an infringement of B’s copyright in his arrangement? This is unlikely because a work is not an infringement of an existing work simply because it contains the work of another. However, in the case of YouTube for instance, would C’s arrangement not be flagged with a copyright strike if B uploaded his arrangement first under Content ID? 

And then the key question: is folk music or traditional gospel or African music, an orphan work? Is folk music or traditional gospel music in the public domain? There is no accepted universal definition of public domain. However, widely accepted definitions incorporate notions of works in which copyright has expired and/or works that lack copyright protection due to the absence of originality. “Orphan work” is not defined in the Copyright Act. However, if definitions in reports and academic papers are to be accepted, it appears that orphan works, enjoy copyright protection just that the author is not known or cannot be found.

Do we have an arrangement?

Put this way, two pertinent questions come to mind regarding SAMRO’s ‘16.7% arrangement rule’:

(1) What is the basis for allotting 16.7% only to arrangers? Put differently, why 16.7%?

 (2) Is it lawful to paint every traditional gospel/African/folk music with the brush of ‘public domain’?

And a related question: when traditional gospel/folk/African music is known to be of black origin [or any other race], should other races (whites, Indians, Chinese) [or blacks in the case of other races] share from a musical arrangement incorporating such music? If the origin of traditional music forming part of an arrangement is known to a collecting society, would a distribution policy that engenders distribution to members of all origin be discriminatory? 

In December 2018, South Africa’s National Assembly passed the Copyright Amendment Bill. The Bill defines “orphan works” and makes provisions for the licensing of orphan works. 

Clause 1 provides for a range of new definitions and defines ‘orphan work’ to mean a work in which copyright subsists and the owner of a right in that work— (a) cannot be identified; or (b) is identified, but cannot be located. Clause 24 provides that any person who wishes to obtain a licence to use an orphan work must make an application in the prescribed manner to the Companies and Intellectual Property Commission (CIPC). The application is to be accompanied by publications in the Gazette and two daily, nationally circulated newspapers. Such application is to be made after a thorough search for the copyright owner has been made without result. The CIPC may grant a licence, which shall be non-exclusive, and royalty is to be deposited in a particular account so as to enable the owner of the copyright in the work or, his or her heirs to claim such royalty at any time. 

If traditional gospel/African/folk music is treated as orphan works, what would then become of the ’16.7% arrangement rule’? Are these requirements of administration by the CIPC not onerous for arrangers? For indigent arrangers, would the cost of search and newspaper publications and payment of royalties not be burdensome?

Clause 22D of the Bill allows collecting societies to “collect and distribute royalties in accordance with their constitution”. Would the 16.7% rule be lawful as a distribution rule that is part of the constitution of SAMRO? Or, would such rule amount to unlawfully contracting of a statute that deems orphan works to include traditional or folk music?

If the appellation of “public domain” were inordinately applied to every folk music or traditional (gospel) music, would such appellation not unduly prejudice the interests of communities/indigenous people/races in such music?

 
Given recent events at SAMRO and given South Africa’s history, there is a risk of perpetuating the economic discrimination of the apartheid era if traditional or folk music is not appropriately classified whether as orphan works, works in the public domain or indigenous knowledge. Whatever appellation is accepted will also require an appropriate approach towards collective licensing arrangements of works containing traditional gospel or folk music and how this feeds into digital copyright management tools such as YouTube’s Content ID.