Audio Transcription of Interview on Classic FM on 2 October 2006; Copyright - Music

TONY BLEWITT:

Once again, on Classic Breakfast we are talking intellectual property. In actual fact today we are talking copyright. My guest on the telephone, Duncan Maguire, an attorney with the firm Spoor & Fisher. Duncan, good morning.

DUNCAN MAGUIRE:

Good morning, Tony.

TONY BLEWITT:

Welcome to Classic FM. The question that has been sent through by many of our listeners is about music rights. The question goes like this : “I’m interested in music copyright in the music copyright area. As I understand it there is separate copyright in the song itself which means you can’t perform the work for gain without permission and in the sheet music which means you cannot copy the score without permission. Is it correct and what are the rights and obligations of a person that makes an arrangement of a work or a song?”

DUNCAN MAGUIRE:

Right, Tony; well perhaps I should first deal with the first leg of your first question being whether there is separate copyright in the song itself. Now, for copyright purposes, it is important to take note of the fact that there would ….… well, there could be in a song three works which enjoy copyright protection. The first being a literary work, which would be the lyrics of the song. The second being a musical work, which is the musical notation or melody which exists in a material form or the third being the sound recording which is the actual fixation or storage of sounds on the record or the tape. So a song essentially could comprise three works for copyright purposes. Now you asked the question whether there is separate copyright in the sheet music. The sheet music is really the vehicle for a musical work; so, in essence, when one is talking about the sheet music, you are really talking about the musical work. So certainly one cannot copy the score without permission because you’d be infringing the musical work. And the same would obviously go for all three of the copyrighted works which I have mentioned : one cannot make unauthorised reproductions of those works without permission.

TONY BLEWITT:

And Duncan, with regard to the second part of the question : what are the rights and obligations of a person that makes an arrangement of a work or song?

DUNCAN MAGUIRE:

Tony, a person who makes an arrangement of a song, would insofar as he has created something new or something of an original creative character, obtain copyright protection in that portion of the song which is new, provided of course that copyright subsists in the various works making up the arrangement of the song. So, for example, if he’s adapted the literary work of the song, being the lyrics, if he can prove that the lyrics that he’s come up with have an original creative character, he would be able to claim copyright protection in that portion which he’s claiming to be new, but it is also important to note that a person could be seen to be infringing copyright in the respective works making up a song which is copied provided his adaptation of those works is substantially similar to the respective works making up the original song; so in practice, the way we would deal with this is simply to ask the question whether or not substantial part of the work has been taken and this would entail an objective comparison as to whether the two works are substantially similar and if indeed that is the case, whether there is a causal connection between the original works making up the song and the adaptation thereof. So if either of these tests are not met, then no copying of a substantial part of the work has taken place and there has been no infringement.

TONY BLEWITT:

Right, Duncan, thank you very much indeed for answering that question; as I said many people sent that one through. And if you have a question, go to the website, classicfm.co.za. There you’ll see that we want your questions and we’ll get the answers for you. Hopefully we can from the guys at Spoor & Fisher, as we do every week and you’ll also be in with a chance of winning yourself a 5 CD set with the work of Felix Mendelsohn – presumably, Duncan, that’s gonna be copyrighted. Duncan, thanks very much for being with us this morning on Classic Breakfast.

DUNCAN MAGUIRE:

Thank you very much, Tony.

Duncan Maguire

SPOOR & FISHER

Date published: 2006/10/02
Author: Duncan Maguire

Tags: audio transcript classic fm copyright music