Regular Columnists

© 2001, Nancy A Reece & Duff Berschback

QUESTION #1:

What is the Performing Rights Organizations Role?
What is the World Intellectual Property Organization (WIPO)?

ANSWER:

FROM DUFF:
The WIPO is an arm of the UN, and it serves as the Secretariat for the Berne Convention (among others), an international copyright treaty.

Over the past 10 years, WIPO has considered draft clarification about the scope of Berne. In 1996, two new treaties, the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty, were negotiated, and over 20 countries have adopted them. (The 1998 DMCA in the US was, in part, enacted to allow the US to join the internet treaties). If you're interested in learning more about this organization, visit www.wipo.int .

FROM NANCY:
There are 177 States that are members of the organization, a complete list is at the web site. However there are several States that are members that have historically been poor administrators and protectors of Intellectual Properties.

Their mission statement: "To promote through international cooperation the creation, dissemination, use and protection of works of the human spirit for the economic, cultural and social progress of all mankind."

Don't miss the virtual tour at the web site:
www.wipo.int/about-ip/en/index.html?wipo_content_frame=/athome/en/

QUESTION #2:

...I am new at songwriting-exposure and currently only write for pleasure and contests. But, now I think I'm ready for more. Upon placing a web ad for potential collaboration, I received a reply from a foreign band looking for songs. I'm ready to send a CD and feel that I should be getting some legal backing prior to this collaboration. Can you tell me what the steps are that I should take prior to and during this collaboration?

ANSWER:

FROM DUFF:
A good first step would be to register your copyrighted compositions in the US Copyright Office. Is the band in a country that is a member of the Berne Convention? If so, having US protection gets you a certain reciprocity with the other country--they can't treat you any worse than one of their citizens, and have to adhere to the minimum standards of the convention. When sending your CD, tell the band whether or not the songs have been released or not--in the US, you, the creator, have say over who cuts the song the first time, but thereafter anyone can get a "compulsory license" to record the song (provided they give you notice and pay royalties). If you anticipate mostly foreign royalties, you should check into entering sub-publishing arrangements to help collect the publisher's share of those monies. More basically, make sure you've joined a PRO (performing rights organization, i.e. BMI, ASCAP, SESAC) to collect your writer public performance royalties. Good luck.

FROM NANCY:
I agree with Duff. It is important that before you send material to folks you should go about registering the works for the peace of mind it gives. However, I'd like to share one thing I have noticed in my years working with several selfpublished performing songwriters. When you record your won song for commercial release. That independent CD you made, for example. That is the first release of the song. The compulsory licensing that Duff mentions does go into effect at that point.

QUESTION #3:

... If I copyright a song in the United States, and the song or a portion of the song gets translated into other languages in foreign countries, would I legally still have the right to collect royalties? Even if a publisher, producer, or record company purchases the copyright?

ANSWER:

FROM DUFF:
Yes, you do have the right to collect royalties. Usually this is done with the help of a sub-publisher located in the foreign country (who of course will take a fee for such a service). Keep in mind that the local lyricist is going to get a cut of the monies. Also, make sure that the translation is registered separtately with the foreign society, and that the translator doesn't get paid on the English version. Bottom line: insist in your sub-publishing agreement that you have absolute approval over the sub-pub's authority to authorize translations. When you say "purchases the copyright", do you mean the publisher share, the writer's share, or both?

FROM NANCY:
Sub-publishing can be very interesting and yet confusing to an unseasoned publisher. By using the term "purchasing" you may be referring to an advance in royalties, this could be a good thing. You should seek the counsel of a copyright attorney to help you through the process.

QUESTION #4:

... I'm a singer/songwriter in the UK, and have just recorded a demo. I want to send this to producers in the UK and the US. How do I copyright the songs, and does a UK copyright also cover the US - or will I need to copyright in both countries?

ANSWER:

FROM DUFF:
The UK is a member of the Berne convention. Although I can't speak to the requirements to copyright a work in the UK, I can say that once you do so, you are "covered" by the Berne convention. What this means is that you get protection for your work from all signatory countries. You get two types of (long lasting!) protection: "minimum standards", and "national treatment". Minimum standards are those in the Berne Convention itself--all member countries must adhere to them. "National treatment" means that authors enjoy in other countries the same protection for works as those countries accord their own authors, i.e. the US has to treat you like a US copyright holder by virtue of its membership in Berne. Depending on resources, it can be advantageous to acquire a separate US registration for your work (see below).

FROM NANCY:
Get with PRS, they will help. http://www.prs.co.uk/

QUESTION #5:

... I co-wrote some songs which have been recorded and released on CD in the USA. The songs are registered with ASCAP with a publisher, however I have not yet signed a publishing contract. If the songs are played on the radio in the USA, will I receive any royalties? What are my options regarding setting up my own publishing company with ASCAP, and would I apply to the UK branch of ASCAP as I am a UK citizen?

ANSWER:

FROM DUFF:
You don't have to have signed a publishing contract to receive royalties, but you need to make the relevant PRO aware of your authorship status. Note that affiliating with a PRO as a writer is a different thing than affiliating as a publisher, which you should definitely explore. As to affiliation, look into dual membership (with PRS and ASCAP). The primary advantage is (relative) speed of payment for US public performances (b/c the money doesn't have to go through additional administration) and personal contacts with players in the US market.

FROM NANCY:
If you assigned your rights to a US publisher that is affiliated with ASCAP, then your agreement would include some sort of declaration of your affiliation. If you still have full ownership in your portion of the copyright and have not assigned it, your portion wouldn't be registered with ASCAP, only your co-author's.

You may go with PRS as a local PRO and then decide if you want ASCAP/BMI or SESAC to represent you in the US which would be considered "foreign territory". Contact PRS and have them walk you through all options. http://www.prs.co.uk/

QUESTION #6:

... Greetings from Malaysia -with a building frustration as I find myself up against roadblock after roadblock in my search for an affordable yet creditable and efficient place for me to apply for international copyright(secular music) for my songs.. I was thinking of doing so at one of the government offices here(as it would be more affordable), though getting info is soooo, soooo difficult...

ANSWER:

FROM DUFF:
Not an expert on Malaysian law, but it might be possible to get US registration. Malaysia is a member of the Berne Convention.

A foreign author can claim US copyright protection in his published works if he fits into one of the following categories:

1. If he's domiciled (oversimply: present with intent to live here) in US at time work is first published. (Regardless of where publishing occurs.) There are a couple of twists on this if there are joint authors involved, namely, if one is a US national or domicile, the work gets US protection.

2. If work is first published in the US, US copyright protection attaches regardless of author's nationality or domicile.

3. Nationals of certain treaty nations. (i.e. if US and author's country are both party to treaties like Berne, Universal Copyright Convention, etc..). Treaty had to be in place at time of publication. UCC: For treaty nation national, publication can take place anywhere. Alternatively, publication can take place in a treaty nation by a non-treaty national and still get US protection. BERNE: "Berne Convention Works", i.e. 1) 1 author is national of treaty nation, 2) work first published in treaty nation

4. Nationals of nations identified in a qualifying "Presidential proclamation". The Prez can single out a country that, even though not a treaty nation, has particular respect in word and deed for IP. If he does, similar rules apply there as in treaty nations.

FROM NANCY:
Cool, Duff, I've not heard it explained better!