Sound warning

    The Middle East has?been a black hole for 'collective administration of copyrights and neighbouring rights', says Marcus Handley.
    Comment, Broadcast Business


    All public venues in the UAE, including bars, restaurants and malls, will soon require a license to play copyrighted music. Marcus Handley of The Rights Lawyers discusses the potential implications of the new legislation.

    If you are reading this article in your workplace, in a hotel lobby, or a shopping mall, then it may well be that you can hear music of some form playing in the background.

    Background music is extremely important and often seen as an invaluable contribution to a pleasant atmosphere in the workplace and in commercial spaces. Sometimes music is also used to provide entertainment for customers and clients.

    However, contrary to popular opinion, particularly in the UAE, the use of music in this way does not come for free. Permission (i.e. a licence) from the "creators of music" is a legal obligation. This is where what is often termed a 'collecting society' comes into force.

    The task of a collecting society is in theory very simple; to collect money from users of music and then distribute it to its members, the owners of the rights of that music. There are many different types of collecting society, maintained on behalf of the artists themselves or for the producers of the sound recordings. The producer, who we will concentrate on here, is the natural or legal person who creates the basic conditions for the recording itself. The authority of a collecting society is based in copyright law.

    Collective licensing has been adopted pretty much everywhere in the world where copyright is enforced. It is long established in the UK (where it came into effect in 1914), and has become established throughout the rest of the world over the last century. For some time, the Middle East has represented a glaring black hole in terms of what is officially termed the 'collective administration of copyrights and neighbouring rights'. This situation, however, is about to change.

    Collective licensing provides a means for copyright owners to combine and form a collecting society. This permits them to offer the use of the music under their control for public performance, subject to compliance with the terms of a licence agreement and payment of a royalty fee.

    It offers convenience to the users of music who, once a licence is in place and the fees paid, do not have to seek advance consent from rights owners. It also offers convenience to owners, who are then saved the hassle of identifying each user of their works (and the extent of that use) and enforcing their rights against unauthorised users.

    The functions of collective licensing bodies are primarily licensing the use of copyright, determining tariffs for that use, collecting royalties, distributing the revenue, monitoring the use of copyright material and enforcing copyrights. Licences typically grant the right to use that society's entire repertoire for a specified purpose.

    The royalty payable is dependent on the type and extent of use of the music i.e. music used in the background in a mall and music used as the primary entertainment in a nightclub would be priced differently. These kind of uses are known as 'secondary exploitation'.

    When a performance is recorded for commercial use on, for example a CD, and is offered for sale to consumers, this is called first exploitation or use. When that recorded performance is then broadcast on the radio or television, or played in public (in shops, hotels, restaurants, bars, offices, etc.) this is referred to as secondary exploitation or use.

    It is illegal to make such secondary use without the permission of the owner of such rights. In return for such permission the rights owners, through the collecting society, require the payment of the licence fee. It is this licence fee that the collecting society collects on behalf of its members.

    As previously mentioned, collecting societies exist all over the world, with the PPL in the UK, SENA in the Netherlands and the newly established IPRS in India. The Middle East has, until now, been an exception.

    The Emirates Music Rights Society or EMRS is being set up as the Middle East's first and currently only collecting society, a move made possible by the UAE's Federal Government creating the necessary legislative framework.

    In particular changes in 2002 to the Copyrights and Neighbouring Rights laws, and a ministerial decision in 2004, established the basis on which such a licence is to be granted. The Ministry of Economy is currently processing the appropriate licence for EMRS to begin its work in the region.

    EMRS is set to focus on the public use of music where the rights of the producers in those recordings are involved, primarily in relation to the 'secondary exploitation' of its member's rights.

    EMRS will also have an international dimension with a substantial global reach, sitting alongside and establishing reciprocal arrangements with hundreds of sister societies operating around the world. However, EMRS' mandate stems from the UAE copyright law and so has the relevant authority behind it.

    Under UAE law, producers of music are entitled to prohibit any exploitation of their material by any means without their authorisation. The legislation states that anyone who commits any acts (including the secondary use of music) without written permission from the rights holder is guilty of a criminal, as well as a civil, offence.

    This can attract punishment of a period of not less than two months imprisonment and/or fines of up to US$13,500, with penalties to be increased according to the quantity of music used without consent.

    In a nutshell, where music is used in public performance without such permission, the user would soon be guilty of an infringement of the UAE copyright law, and punished accordingly.

    The founding members of EMRS include the major international record companies and the largest, best known and most established record producers in the UAE and throughout the Middle East. The region may currently constitute a void in the collecting society world, but take it from us, this is due to change and collecting societies, and in the UAE, the EMRS specifically, should be taken extremely seriously.

    The result of this will be that throughout the Emirates, the GCC, and ultimately the Middle East, rights owners will finally be able to receive the remuneration to which, by law, they are due but have to date been unable to collect.

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