Friday 22 August 2014

Assignment, rights in a recording and in an underlying work: a need for explanation

Peter Lawton, of London-based Cacophony Ltd write to ask for a bit of guidance. He says:
"I am a music publisher and have been trying to explain the difference between the copyright in the recording and the copyright in the underlying composition to a Polish company. They claim the law is different in Poland and when an artist signs a record contract they automatically assign the composition as well. They use the phrases "economic rights" and "derivative rights" (note: not defined and meaningless to me in this specific regard) to substantiate their claim.

I've been digging around to find something specific but reasonably intelligible to someone who's English is less than perfect (but an awful lot better than my Polish) which explains in either English or Polish -- with English translation so I can check it -- that the two rights are not the same and that EU legislation distinguishes between the two. I thought it would be easy to find but it seems not.

If anyone feels in the mood to give me bonus I also need to explain that covering a song does not mean the copyright in the composition is automatically acquired by the performer as well.
Responses, anyone?


Anonymous said...

I need to keep my reply short being rather busy on this last day before I leave for holidays, but I may help you identify the specific legal provisions, which the Polish company refers to.

Under Polish copyright law (the Act on Copyright and the Neighbouring Rights of 4 February 1994), as in any decent dualistic systems, authors' rights are divided into non-transferable "personal authors' rights" (art.16) [equivalent to moral rights under English law] and "proprietary authors' rights" (art.17) which consist in transferable exclusive rights to use the copyright work. The latter are usually translated into English as "economic rights" and are further elaborated in art. 50 as a bundle of "modes of exploitation".

Rights in recordings (legally defined as "phonograms") are distinguished from copyrights and are protected as neighbouring rights under art. 94 of the Act on Copyright and the Neighbouring Rights. Therefore, strictly speaking, there is no copyright protection (in a narrow sense) in sound recordings, which fall within domain of neighbouring rights (similarly as rights in performances, broadcasts, first editions).

Transfer of neighbouring rights in sound recordings definitely does not go together with a transfer of copyright ("economic rights" - since moral rights always say with the original creator) subsisting in the underlying work.

Maybe this can help.


Paul Edward Geller said...

See Janusz Barta and Ryszard Markiewicz, "Poland" in INTERNATIONAL COPYRIGHT LAW AND PRACTICE (P. E. Geller and L. Bently, eds.; LexisNexis, 2013).