Looking back, Looking forward | Real royalties - Give our Jamaican music creators/owners their just rewards

It is no secret that Jamaica's vast musical influence is of disproportionate magnitude to its small geographical size.

In this vein, it is quite unfortunate that some of our artistes, composers, and song writers still lament the lack of information, bargaining power, and legal understanding when it comes to securing royalty payments and entering into licensing agreements for the copyright in their musical works.

One way in which this problem is somewhat ameliorated is through the establishment of what are known as 'collecting societies'.

The collecting society enters into numerous agreements with copyright owners and is responsible for administering and enforcing the rights in musical works. The aggregate collection of the works of members joining the collecting society is termed the 'repertoire'.

The administrative value of a collecting society is that it can track down and enforce the infringement of copyright on behalf of a large number of persons covering hundreds of thousands or even millions of musical works.

 

Reciprocal Agreements

 

The extent of the repertoire is indirectly expanded through reciprocal agreements with overseas collecting societies which may give the local collecting society the right to collect royalties on behalf of foreign based members.

At present, Jamaica has two collecting societies related to the public performance mechanical (reproduction) and synchronisation of musical works: The Jamaica Music Society (JAMMS) and The Jamaica Association of Composers Authors and Publishers (JACAP).

Although their objectives and collection efforts to date are commendable, their effectiveness is hampered by an inadequate policy and legislative framework to guide their royalty pursuits.

JACAP and JAMMS seek to secure compliance by entering into individual licencing agreements with persons or companies which engage in the public performance of musical works such as radio broadcasters, cable service providers, nightclub owners, schools, hoteliers, transport operators, restaurant operators, party promoters, fitness instructors, etc.

The net is cast widely for music users, but compliance across the board is patchy. If left unchecked, collecting societies can operate like cartels due to the practical lack of competition as a result of the strength of their repertoire.

Many promoters, for example, feel that the demands are extortionate and leave little room for fair negotiations. There is also a need for a cultural sensitisation to the work of collecting societies and the importance of protecting the copyright of our musical talents.

I would recommend that Jamaica's Copyright Act is amended to provide for automatic referrals of proposed licensing schemes to a properly resourced and independent copyright board for review instead of the ad hoc arrangements being presently set-up.

Persons potentially affected by the proposed scheme would have an opportunity to make representations to the board on what would amount to a fair and reasonable tariff or licencing fee.

The board's approval of the proposed scheme, and any attendant method of calculation for fees/tariffs, would then be binding for all members of the relevant class for a specified period.

Such a regime would significantly improve compliance and reduce the administrative costs of our collecting societies in the long-run. Additionally, the present framework wastes valuable time and court resources when one considers the recurring JACAP/JAMMS matters on our weekly civil cause lists.

The recommended regime would declutter our court system by obviating the need for JACAP/JAMMS to file complex legal claims seeking injunctions and damages for intellectual property infringement on a case-by-case basis.

Our collecting societies perform a function of public interest and concern, which can impact the livelihood of our musical talents in Jamaica. In addition to raising public awareness and understanding, it is important that JAMMS and JACAP submit to high standards of reporting and dissemination of information among its members as it pertains to the calculation and distribution of royalty payments.

Many collecting societies use outdated and arguably unfair methods and procedures for calculating royalty payments even in the face of more advanced tracking systems and Internet-related technologies.

 

Radio Playlists

 

There is still a heavy reliance in Jamaica on radio playlists which do not reflect the varied trends in music usage over other platforms and spaces in which licence fees are collected. Lesser known creators, without international standing, often get overlooked and receive minuscule payments even though their works may enjoy heavy playing time in certain settings.

Members need to be properly advised on innovative trends in royalty collection and distribution across the globe and use this knowledge to influence resolutions passed within the corporate structure of the collecting society.

A grey area which our collecting societies need to address relates to the enforcement of reciprocal agreements. How are foreign collecting agencies made accountable to our local collecting societies? The streaming service, Spotify, announced earlier this year that it paid $9.76 billion in royalties to artists, music labels and publishers since it launched in 2006.

I also recall a February 23, 2017, article in The Star titled 'Radio DJs in favour of boosting local music' where it was reported that the bulk of JACAP's royalty collections went overseas - as much as 85 per cent in 2013.

My immediate thought was 'How many millions of US dollars or pounds or euros are we collecting (or losing) for our creative talents who, from time to time, dominate significant portions of the entertainment scene in foreign locales?'

Our collecting societies in Jamaica ought to be held accountable by their members to put measures in place to ensure foreign collecting agencies astutely monitor and track the performance rights of Jamaican music creators and that the royalties properly earned are collected and sent back home for distribution.

 

No accountability without transparency

 

There cannot be accountability without transparency. All members of JAMMS and JACAP should be furnished with detailed annual reports on collections and compliance; progress in key performance indicators; investment in and development of monitoring and listening tools for rights tracking; and the policing or oversight of foreign collecting agencies.

Although JACAP and JAMMS are labelled 'non-profit' entities, a significant portion of the royalties collected are pocketed for administrative costs. Annual reports should also include a breakdown of operating expenses and budgetary allocations.

Our music creators/owners have a distinct advantage over our revered athletes in that their timeless music can earn income long after the body breaks down.

We should revisit our approach to selling music in the digital age by, among other things, reinforcing the consumption model and the repertoire underpinned by advanced, robust rights tracking technologies and enforcement measures.

The tragic situation of the struggling 'has-been' reggae icon should be relegated to antiquity and our new generation of elite hitmakers should look forward to financial stability heading into their pensionable years.

- Mark-Paul Cowan is an attorney-at-law. Feedback: editorial@gleanerjm.com.