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Commentary: Written contract agreements a must
Published on February 15, 2017 Email To Friend    Print Version

By Arley Gill

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

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Lawyer Arley Gill is a magistrate and a former Grenada minister of culture
Copyright is only one example of IP. Copyright – or shall we say authors’ right – is a legal term used to describe the rights that creators have over their literary and artistic works. These works include books, music, paintings, sculptures, films, paintings and so on.

There is a large body of international law that covers many different aspects of copyright law. This area of law, it can be said, was developed largely through international conventions or treaties between states because, really and truly, artistic works respect no geographical boundaries. From the Berne convention of 1886 to the Beijing treaty on Audiovisual Performances, which I was fortunate enough to represent Grenada at during the final meeting in Beijing, China, there is an enormous amount of learning to be had on this subject of copyright.

Most developed and developing countries have signed on to these conventions; that’s because, unlike many treaties, the conventions deal with “bread and butter” issues. And, they can undermine major economic sectors like Information Technology and fashion, for instance.

In my time in government, we were able to pass some relevant domestic legislation as well, so as to fulfill our international obligation and also to lay down some foundations to support the creative industry of Grenada, Carriacou and Petite Martinique.

If one follows international trade news closely, one will hear the constant complaints from the United States – in particular – and the European Union – to a lesser extent – about China and the lack of protection that the Chinese offer for western products. In China there are “knock-offs” for every product imaginable; from Nike to Gucci to MK. Of course, it represents a serious loss of revenue to these companies and it affects the image of the brand.

The reason for all this introduction, is to say that the copyright business is a serious business; serious not just for rich and powerful countries and billion dollar industries, but even more so for poor developing countries and small fledgling industries that could least afford to lose a cent from the creative sector.

However, to take advantage and to maximize revenue earnings from the sector, knowledge is indispensable. It means that persons who are involved in the industry must get in the “know”. It does not mean that they have to become experts; far from it, they should acquire basic knowledge of what attains in the industry in which they are involved.

In many respects – in the music industry in the smaller islands of the Caribbean, for example – music is done for fun; it’s fun until we realize that somebody likes the music and there is the possibility that some monies can be gained from it.

We have this practice, for instance, where a producer/arranger “builds” a rhythm and invites or offers singers to “ride” the rhythm; ride simply means putting words to the music. Now, this partnership between musician and singer essentially makes them co-authors of the final version of the song. Music alone is not a song; and words alone are not a song. There have been many great writing partnerships throughout history: like John Lennon and Paul McCartney; Mick Jagger and Keith Richards; and Winsford Devine and Mighty Sparrow.

In fact, just last year it was revealed by a team of 23 academics from five countries that the great English playwright William Shakespeare collaborated with other authors, including Christopher Marlowe, on some of his works. As a result, Shakespeare’s and Marlowe’s names will appear as co-writers on the title pages of the three Henry VI plays within the New Oxford Shakespeare, which is published by Oxford University Press.

These days there are multiple songwriters on one tune, and it is not uncommon to see a long list of persons who are given credit.

What happens, with regards to the rights of a song and it benefits, is usually determined by the agreement that the parties have. That’s the very essence of a contract: the parties must agree.

Generally (and I did not check the Grenada legislation specifically), if there is no agreement, then the song is subjected to what is referred to as the default rules enshrined in most copyright acts, as a general principle. This means that the writers are joint authors of the work. Now, here is the nuance – joint authorship means that the parties are 100 percent owners of the work and not 50/50, as you would think. It means that each person, who contributes significantly, has the right fully to exploit the work in any of the ways that a sole owner could.

A co-author can license a song and make money without the knowledge or consent of the other co-author; but, he/she has a duty to account for the money made from the work and must share that money with the co-author.

However, to avoid all this trouble, it is prudent to have a written agreement in place. The agreement should cover how much each person should get, if the song becomes a commercial success; and who should be named as the writer of the lyrics and the writer of the music composition.

I know that it can be cumbersome to do so for every song; nonetheless, what producers can do is to have standard contracts for their rhythms. They will then say to the singer/songwriter, this is the terms and conditions for doing a song on my rhythm.

This may very well go a long way in avoiding some of the “Ray, Tay, Tay”.
 
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