Why pay for copyrighted works?

LEGAL NOTES

BY HELEN LIU

Wednesday, October 17, 2018

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Going to the movies or buying a legitimate copy of a song, album, book or DVD can seem expensive. It may seem cheaper and more convenient to simply stream a new movie or series or download a song or book from illegitimate sources. However, by doing so, you would have “pirated” the work and the author of the work would be deprived of revenue.

Many argue that big movie studios, etc, make large sums of money and the non-purchase of one copy of work in Jamaica does not affect the profitability of the studio, etc. However, it takes significant amounts of creativity and capital, both human and financial, to create works. If studios and publishing houses no longer make returns on their investments because of pirating, it could be argued that works will eventually decline in frequency and/or quality.

 

WHO GETS PAID?

Authors are usually paid royalties out of the proceeds resulting from the sale or performance of the work.

 

ROYALTIES IN THE MUSIC INDUSTRY

Many individuals are involved in the creation of musical works. These include composers of the music and songwriters who write the words (the authors), musicians or singers (the performers), the record producers, or the record labels that finance the performance and normally own the sound recording copyright in relation to the performance.

Music publishers are considered indirect copyright holders who ensure that mechanical royalties are paid over to the authors.

There can be performing rights royalties paid to songwriters, composers or publishers when musical works are played or performed in public places. This includes television, radio online streaming platforms (such as YouTube and Spotify) concerts or sporting events. Mechanical rights royalties are paid to authors or publishers when musical works are sold.

 

ROYALTIES IN THE MOVIE AND TELEVISION INDUSTRIES

The author (who is usually the copyright holder) of a film or television show is the person by whom the arrangements necessary for the making of the film or show are undertaken (the producer). Others involved in the creation of dramatic works include directors, performers and writers.

Royalties for the movie and television industry are referred to as residuals. In addition to the producers being paid for the broadcast of the works, actors and writers are also often paid residuals. The monetary amount of the residuals is generally dependent on the frequency of the broadcasting (for example, on an online platform such as Netflix) or sale of the work.

 

ROYALTIES IN BOOK PUBLICATIONS

An author is usually paid an advance upfront followed by royalties from the publisher. Royalty rates are generally based on percentages of book sales. Therefore, an author is dependent on sales to continually generate income from his/her works.

 

CONSEQUENCES OF PIRACY

Under the Copyright Act of Jamaica, any person who infringes an existing copyright by

1. making available for sale or hire, sells or lets for hire, offers or exposes for sale or hire, exhibits in public or distributes;

2. imports into Jamaica for commercial purposes; or

3. distributes in the course of business any article which he knows or has reason to believe is an infringing copy of that work, commits an offence.

If a person is found guilty of the offence above by a parish court, they may be ordered to pay a fine of up to $100,000 and/or be subject to imprisonment for up to two years. If found guilty in the Circuit Court, they may be liable to pay the fine and/or be subject to imprisonment for up to five years.

Any person who infringes an existing copyright by making or having in his/her possession an article specifically designed or adapted for making copies of a work, knowing that it is to be used for making infringing copies for sale or hire or in the course of business, commits an offence.

Any person who causes:

i. a literary, dramatic or musical work to be performed in public; or

ii. a sound recording or film to be played or shown in public,

knowing or having reason to believe that a copyright exists in the work and that the performance, playing or showing, constitutes an infringement of the copyright, commits an offence.

If a person is found guilty of the two latter offences by a parish court, they may be ordered to pay a fine of up to $50,000 and/or be subject to imprisonment for up to one year. If the person is found guilty before a circuit court, they may be ordered to pay the fine and/or be subject to imprisonment for up to three years.

Technology poses a problem in the enforcement of copyright. With emerging technologies such as android boxes, access to pirated material is readily available. Current legislation does not readily capture such infringing use; however, consumers should be mindful that in order for creative industries to thrive, authors and studios need returns on their investments.

No one wants to work for free. The creation of copyrighted works involves heavy human and capital resources. By pirating works, the artists and copyright holders are deprived of their rightful income. If everyone refused to pay for works, consumers will lose out on quality works.

 

Helen Liu is an associate at Myers, Fletcher & Gordon and is a member of the firm's Commercial Department. Helen may be contacted via Helen.Liu@mfg.com.jm or www.myersfletcher.com . This article is for general information purposes only and does not constitute legal advice.

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