IP Issues Relating to Music & Songs: What You Need To Know
Who owns the rights to a song? What does it mean if you own the rights to a song? If you, as a consumer, have ever purchased or downloaded music from streaming platforms such as Spotify and Apple Music, you may wonder if you have any Intellectual Property (IP) rights over these songs, or when and how you are permitted to use them.
On the other hand, if you are a music producer, artist or songwriter in the music industry, it is likewise important to be aware of your IP rights so that you can protect your creations.
In this article, we will cover:
What are Intellectual Property Rights?
IP is an intangible asset that protects “creations of the mind”. IP rights can be registered via three mechanisms in Singapore, namely:
- A patent;
- A copyright; or
- A trademark.
When it comes to literary, dramatic, artistic and musical works, these creations fall within the scope of protection of a copyright, which gives the creators of original works an exclusive set of rights in their creations.
As the copyright owner, creators can control the use and commercial exploitation of their works. Commercial exploitation of IP refers to the process of turning the intangible asset into a commercially viable service or product. For example, licensing out a song to a third-party would allow IP owners to collect revenue from that song over a period of time.
What Kind of Intellectual Property Rights are There in a Song?
There are two types of IP rights in a song, which typically comprises of:
- Lyrics; and
While lyrics would fall under literary works, the melody of a song is covered under musical works. Both literary and musical works are commonly referred to as authorial works because they are the original works of a creator.
In the context of music, a copyright would confer exclusive rights to its owner, allowing them to reproduce, publish, or publicly perform their song. Sound recordings, which include music contained in a digital file (including MP3, MP4, WAV and more), are similarly protected, but with additional rights to collect payment (also known as equitable remuneration) for public performance of the sound recordings.
For example, a business that wishes to play recorded songs in a public venue, such as in restaurants and retail shops, may have to obtain the licences for the public performance of both the song recording as well as its underlying music (i.e. original musical scores and lyrics).
Typically, if a song is played from a music streaming platform in public, the business would have paid for the public performance of the underlying music. However, they would also be required to pay for the public performance of the sound recording. On the other hand, if a song is played from a radio, then the business does not need to pay for public performance of the underlying music nor the sound recording. This is because, by receiving a radio broadcast, the music falls within the exceptions (discussed further below) relating to public performance of the underlying music and sound recording.
Who Owns the Intellectual Property Rights in a Song?
The owner of IP rights is usually either an individual or a company that owns and can exercise exclusive rights over the content. In the case of authorial works, which include literary and musical works, the first owner of copyright in a work is the authors themselves.
For example, in the case of a sound recording, the first owner is the maker of that sound recording, such as the recording artist or the recording company. Similarly, in the case of an underlying music, the first owners are the makers of the underlying music, such as the composer and lyricist (though their rights are typically transferred to a music publisher who will help them administer royalty payments and enforce the copyright). This grants content creators default ownership, even for commissioned content.
However, this general rule is still subject to the exception of employee-created content. In other words, if you are a creator who has been employed by someone else then your employer would, by default, own the rights to all types of content created by you in the course of your employment. For example, if you are a songwriter who is employed by a music company to write a song, the music company would own the IP rights to that song by default.
These default positions would only apply in the absence of an agreement to the contrary. Parties may agree in writing to reverse the default position, such that the commissioner or the employee owns the copyright instead.
What are Some Common Legal Issues with Downloading, Purchasing, or Streaming Songs From Online Music Platforms?
For consumers of online music platforms
If you are a consumer of an online music platform, such as Spotify or Apple Music, it is important to note that you do not own any IP rights to songs that you might stream or download from such platforms. This is because exclusive rights are conferred on the rights owner, by virtue of their copyright in the work. The nature of these exclusive rights is a negative one. This means that as a consumer, you require the permission of the original IP rights owners to do the following:
- Reproduction of musical works (e.g. making copies of the song);
- Publication of musical works (e.g. publishing the song on various platforms such as YouTube)
- Public performance (e.g. performing the song in a public venue)
- Communication to the public (e.g. streaming the song in a public venue); and
For content creators/cover artists/performers
In Singapore, the music that you create is automatically protected by copyright if you meet the following three conditions:
- You have a connection with Singapore, which can be established in one of these ways:
- You are a Singapore citizen; or
- You are a resident of Singapore;
- Your work was first published either in Singapore or by or under the direction or control of the government;
- Your work must be original, i.e. you must have applied at least some independent intellectual effort in creating the expression of your ideas; and
- Your work must be fixed in a material form, i.e. there must be certainty in the subject-matter that is being protected.
As long as these conditions have been met, you (or your employer, as explained above) will be the default copyright owner and possess exclusive legal rights over your music.
If you intend to post covers of songs on online platforms such as YouTube, you will generally have to obtain permission from the copyright owner of the original song before you can do so. To the extent that the music you have created is original, you will own the copyright of your song cover, which is separate from the copyright in the works you have used. However, you will still require permission from the copyright owner of the original song to reproduce, copy or adapt his or her music.
In the case of busking, whether you have committed an IP infringement would depend on whether you are performing your original musical creations or covering songs that have been copyrighted. If it is the latter, you would have to obtain, at your own cost, any licences or approvals relating to IP (including but not limited to copyright and composer’s fees) during the busking act.
The rights to music and sound recordings are managed by collective management organisations (CMOs) that are appointed by copyright owners to manage their IP rights. CMOs are able to grant licences for commercial uses of recorded music, as well as collect royalties and enforce rights on behalf of the copyright owners. In Singapore, individuals may obtain the necessary licences from either the Composers and Authors Society of Singapore (COMPASS) or Music Rights (Singapore) Public Limited (MRSS).
How Might Intellectual Property Rights in Music/Songs be Infringed?
IP rights are infringed when music/songs have been used without its rights owner’s authorisation and in the absence of any exceptions to infringement.
For example, performing a copyrighted song at a bar without having obtained the license for such public performance would constitute an infringement of the copyright owner’s exclusive right of public performance. The rights owner or their exclusive licensee can then take legal action against the IP infringer.
Defences to Infringement of Intellectual Property Rights
There are certain defences available to a copyright infringer, which are also known as “permitted uses” under the Copyright Act. This allows for unauthorised use of content for the public benefit without infringing IP rights. The defences include:
- Fair use (e.g., when references are made to a musical work in daily reporting news, where the work itself has been sufficiently acknowledged);
- Educational uses (e.g. the use of a song for the purpose of a music education course in an educational institution);
- Uses by persons with print or intellectual disabilities (e.g., making a copy of the song for the sole purpose of aiding a person with intellectual disability); and
- Uses by cultural and heritage institutions (e.g. the use of a song at a museum that is open to the public).
Importantly, the first defence of “fair use” is a general exception that depends on the following factors:
- The purpose and character of the use;
- The nature of the work being used;
- The amount and substantiality of the portion of the work being used, in relation to the whole work; and
- The effect that the use will have on the potential market for, or value of, the work.
As an illustration, the quotation of song lyrics in a scholarly article without the creator’s prior permission is likely to be permitted under the fair use defence. This is because the purpose and character of the use are non-profit and educational, provided that no more of a lyric is quoted than the scholarly context requires and the quoted material is necessary to the analysis that has been made. In this case, the effect that the use has on the potential market for the musical work itself would be rather limited.
What Remedies are Available If My Intellectual Property Rights have been Infringed?
If your IP rights have been infringed, you may consider taking civil action against the infringer. The court may then grant the following remedies:
- Injunctions to stop the infringer from continuing their infringing activities;
- Damages or monetary compensation for any losses suffered by the copyright owner;
- Additional damages due to flagrant infringement or benefit gained by the infringer because of the infringement;
- Account of profits, i.e. an order against the infringer to pay the rights owner the profits the infringer received as a result of its use of the owner’s copyright; and
- Orders against the infringer to surrender all infringing articles to the rights owner, or to dispose of them.
As an illustration, suppose that a song has been copied and published on YouTube without the creator’s permission. The court may grant a mandatory injunction to get the infringer to remove the song recording from YouTube, as well as award damages that may have been suffered by the creator due to the infringement, such as the public being able to stream his or her music for free. If the infringer received any profits by way of posting the song on YouTube, this will have to be paid to the creator as well. The court may also order the infringer to surrender any other copies of the song to the creator or to dispose of them.
In deciding the amount of damages, the court will consider various factors, such as the nature and purpose of the infringing act, as well as the need to deter similar instances of IP infringement.
You can also refer to our other article for a more detailed discussion of the legal remedies that are available to you in the event of copyright infringement in Singapore.
In sum, the IP rights pertaining to music or songs downloaded from streaming platforms reside with their creators or their employers. Consumers of these platforms who stream or download these music do not own any IP right to these music or songs. Consumers of such platforms should also ensure that any songs that they purchase and download should be for their individual and/or private use only, or they may be liable for copyright infringement.
If you have any further legal questions on IP-related matters, you may wish to consult an IP lawyer for advice. An IP lawyer will be able to advise you on how to best protect your work, take action against any IP infringers and resolve other IP disputes.
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