An overview of music copyrights in South Africa

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This article, the first of two companion pieces, presents an overview of music copyrights and how they work in South Africa. In the next article of this series, we detail how copyrights can generate revenue for South African musicians.

What is a copyright?

A copyright is a set of rights granted to the owner of intellectual property. It quite literally refers to the right to copy this work – in different forms and for different uses. The Companies and Intellectual Property Commission (CIPC) provides the following definition of copyright: “A copyright is an exclusive right granted by law for a limited period to an author, designer, etc. for his/her original work.”

In a basic sense, intellectual property for musicians works exactly the same as any other property, much likk like a house or a car. The owner of the property (the song) can generate revenue by using it (e.g. performing it on stage), renting it out (e.g. licensing it to music users like radio broadcasters), or selling it (e.g. to a record label or publishing company).[1]

A copyright, like any other form of property, can be owned in whole or in part by multiple individuals (e.g. lyricists and composers) and/or organisations (e.g. record labels and publishers). The legal terms here would be joint authorship and joint ownership. Therefore, multiple people and organisations can own a share of the exact same copyright. While South African law allows for each owner to do whatever they like with their share of a copyright, recording and publishing contracts often stipulate and identify a principal rightsholder. This is the person or organisation that ultimately gets to decide how the copyright is used.[2]

A copyright affords its owner certain rights over the work in question, such as the right to: [3]

Reproduce a work (e.g. copy an existing audio WAV file to a digital hard drive).
Perform a work in public (e.g. play a song at a shopping mall).
Adapt a work (e.g. change a video so that it incorporates a sound recording).

Video: This video from Tjoon provides an introduction to music copyrights in South Africa.

Where do copyrights come from?

The Copyright Act 98 of 1978 (as amended) ensures that when a musical or recorded work is created, a copyright automatically exists and is owned by the person who created it (unless a pre-existing agreement states otherwise), provided it meets certain requirements.[4] Firstly, the work must be original and created without reference to another work. The work is protected by the act if there is a physical/tangible record of it, which can be done by writing it down (e.g. handwritten lyrics and notes), or by making a recording (e.g. demo or cellphone recording). The work should also be of enough substance (or quality) to be a new work, and so you can’t simply copyright the B-flat chord, for example.

This means that, in South Africa, we do not strictly need to register a copyright for it to exist. However, it is still imperative for every rightsholder (songwriter, artist, publisher and record label) to register with the country’s collective management organisations (CMOs), and to notify these organisations of the copyrights that they own. This enables musicians to generate revenue from the copyrights they own.[5]

How copyright works in the music industry

The first form of copyright that we recognise in South Africa exists in the intellectual property of the composition. This includes the notes, arranged into an original melody (the musical work), as well as the literary work called the lyrics (the poetic work) – which together can be called the music publishing rights. Publishing rights are initially owned by the songwriters, unless the song was written under certain types of publishing or commission deals, and then assigned or licensed by a music publishing company.[6]

The second is a copyright of the sound recording. Sound recording rights are generally automatically owned by the person/company that paid for or made the recording. In the case of independent musicians who record their own music, they will own the sound recording rights and then have the option to use, lease or sell them as they see fit. However, if the recording session was paid for by the record label, depending on the terms of the contract, it is likely that the label will own the recording from the start, and therefore possess the same privileges as the independent artist.

Finally, it is important to note that when a song is recorded, mixed and mastered for release, the copyright of the master recording would include a licensed copyright of the composition and lyrics. In other words. there is no overlap between music publishing and sound recording rights.

Fig 1 in the PDF below shows how these two music copyrights can be mapped onto different music industry sectors – an idea that we explore in greater detail in the next section of this article.

Copyrights in the music business

What is generally referred to as the ‘music business’ or ‘music industry’ is technically made up of various interrelated sub-industries. For the purposes of illustrating how music copyrights work in South Africa, we will focus on the music publishing industry, the recorded music industry and the live music industry as three distinct entities in this article.

The basis for business of both the music publishing and recorded music industries are the types of copyrights that they trade in (publishing rights and sound recording rights, respectively). Furthermore, both types of copyright contain certain aspects that detail further individual rights stipulating exactly how the copyright can be used and benefited from. For example, the live music industry – although a separate sector that relies on artists and performers playing songs in public – also includes an aspect of music publishing rights in its revenue stream.[7]

Aspects of music publishing rights

A music publishing copyright has three main aspects: performing, synchronisation and mechanical rights.

This means that music owners are permitted to authorise the following restricted acts:

To publish (or make available or generally known to the public copies of the work).
To adapt and control any adaption (or alter the original).
To control performing rights (e.g. dissemination to the public).
To perform (e.g. live, online or broadcast).
To broadcast or approve a licence to broadcast (e.g. TV and radio).
To transmit or approve a licence to transmit (e.g. a recorded version played over a public speaker system).
To control the reproduction aspect (also known as mechanical right or synchronisation use).

The mechanical rights aspect of a publishing copyright affords the owner(s) – i.e. the same person(s)/organisation(s) that control the work – the following rights to reproduce the musical work, or to change it via a mechanical or machine process:

To record (e.g. make a recorded version).
To authorise an often statutory-controlled reproduction of the work, referred to as the mechanical right, or to change the format (e.g. putting a tape recording onto vinyl, or converting a digital recording on a server into sound via a DSP and device – such as streaming via Spotify on a cellphone).
To synchronise the composition to visuals (e.g. video games, TV shows, films, adverts, etc.)
To transcribe (e.g. use music in audio productions or other formats, like synchronisation).
To print (e.g. use/disseminate printed versions of the music).[8]

Aspects of sound recording rights

The copyright that exists in the sound recording – also called the master or neighbouring rights in some countries – also has two aspects.

The first comprises the publishing rights associated with the composition of the recorded work (detailed above). This is because the music owner licenses the music – via a mechanical right – to the record owner. This first aspect allows the record owner the following rights:

Record embodying (e.g. packaging and releasing the recording for the public to experience, or through ‘master-use’ synchronisation deals).
Exploiting the reproduction (e.g. earning revenue from the recording, through licensing or sales).

The second aspect is formed by the performance of the recording (so-called needletime rights). These are performance-based rights, similar to the performing aspect of music publishing rights, except that they pertain only to the sound recording. They afford the record owner(s) the following rights over how the recording is performed or disseminated to the public:

To broadcast or approve a licence to broadcast (e.g. TV and radio).
To transmit or approve a licence to transmit (e.g. a recorded version played over a public speaker system).
To communicate the recording (in any way).[9]

Due to this complex copyright structure, it is important to remember that every time a recording is used, the owners of the sound recording rights – or more often now, music subscription services – are required to ensure that the owners of the music publishing rights get paid their fair share of any revenue. For most types of usage licensing (physical formats, broadcast, public transmission, streaming, etc.), there are industry structures and organisations (CMOs) that make sure that this is easily done. For other types (e.g. synchronisation and master-use licensing), it can be more difficult. However, any correctly licensed and registered work should see royalties going to the correct parties.

Fig 2 in the PDF below presents a schematic view of how rights are distributed in the music publishing, recording and live music industries. Ensure that you understand the full spectrum of the copyrights that exist in your compositions and/or sound recordings. Things can get complicated when you have multiple owners of the same works/copyrights, so be advised to understand the chain of ownership carefully.

Continue reading to learn about how copyrights can generate revenue for South African musicians.

Resources and citations

[1] Tjoon. (2020). “Copyright in Music 101”. YouTube. Accessed on January 28, 2022: https://www.youtube.com/watch?v=DgA9h9AusuM&t=136s&ab_channel=Tjoon
[2] Ibid.
[3] Shaw, JG. (2017). The South African Music Business (Third Edition). Billion Music: pp.75-77
[4] South African Government. (2022). “Register copyright”. Accessed on January 28, 2022: https://www.gov.za/services/intellectual-property/register-copyright
[5] Tjoon. (2020). Ibid.
[6] Matzukis, N. (2014). South African Music Law, Contracts & Business – Fourth Edition. Academy of Sound Engineering: p. 39
[7] Tjoon. (2021). SA Music Copyright. Chapters 1 and 2. Available (subscription required) at: https://tjoon.app/downloads/SA%2520Music%2520Copyright%2520CHAPTER%25201&2%2520VERSION%2520001.000.pdf
[8] Shaw, JG. (2017). Ibid.
[9] Ibid.

This article is part of the Revenue Streams for African Musicians project, supported by UNESCO’s International Fund for Cultural Diversity in the framework of the UNESCO 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, the Siemens Cents4Sense programme, Siemens Stiftung, Goethe-Institut, the National Arts Council of South Africa and Kaya FM.

Editing by David Cornwell and Kalin Pashaliev