How to protect a musical work

Author of a musical work versus performer

The author is the creator of the work, which in the musical world can be a song, a composition, a symphony, or a text that is subsequently set to music. In practice, it is quite often confused with the performer (though it is not impossible that the author can also be a performer), who is both the artist and the intermediary between the author of the work and the user. This could be, for example, a singer or a musician recording in a studio.

How do I protect my copyright work against theft?

In the article on copyright, we discussed that copyright arises automatically once the work is expressed in an objectively perceptible form, so there is no need to register the work anywhere.

However,the Copyright Act also applies the statutory presumption of authorship, which states that “The author of a work is the natural person whose true name appears in the work in the usual way or is indicated in the register of protected subject matter kept by the relevant collective administrator, unless the contrary is proved; this shall not apply in cases where the indication is contradictory to another indication so indicated. This provision shall also apply where the name is a pseudonym, provided that the pseudonym adopted by the author does not cast doubt on the identity of the author.”

It follows that by registering with a collecting society, you get some evidence of the date of creation of the work. You can also use it in the event of a legal dispute over authorship. Another option is to put the documents (sheet music, text or a recording) in an envelope, seal it and have it sent to you by registered mail.

What is OSA?

TheOSA, or the Authors’ Protective Association, is a non-profit civil association that represents and administers the copyrights of authors of music as well as songwriters, music publishers or heirs.

OSA then sells licenses for their works for public productions (festivals and concerts), but also for broadcasting and transmission (TV, radio) or films. It also currently handles online streaming of concerts and music productions.

How does the Copyright Union work from the perspective of the authors themselves?

Once you register, the OSA will start sending you royalties = for every use of the copyright work, in this case for example playing a song, you will be entitled to a royalty. This is not only for the Czech Republic, but worldwide. The amount of the royalty then varies according to the country and the circumstances of the use, but the author is always entitled to it.

OSA divides the income for authors into:

• identifiable = this includes income from festivals, concerts and other events where a playlist is submitted in advance, on the basis of which the author licenses the use of the songs and claims a royalty,
• and unidentifiable – royalties from restaurant, TV or discotheque payments where the specific playlist is not known and so a regular monthly lump sum is paid.

The OSA follows a royalty redistribution schedule, which can be found directly on the website of the authors’ protection association. Authors have to take into account a fee for the organisation, which is in the order of 10 – 15%.

An available attorney advises:

“Registration is recommended for all artists who use streaming services or frequently perform at commercial events. In both cases, a collective manager is the easiest way to protect copyright.”

How does OSA work from the perspective of entrepreneurs?

As an entrepreneur, you are obliged to pay a royalty if you have a radio, television or any other audio-visual device that reproduces sound and images in your premises or at an event. You cannot avoid the fee even if you play the device sporadically. In this case, there is a real possibility of dissemination of content.

Bars, restaurants, shops, beauty parlours and other service establishments, as well as owners of accommodation facilities and organisers of cultural or sporting events, will not escapeOSA fees .

Interesting fact: Last year, the media reported that the Copyright Protection Association was fined CZK 10.68 million for abuse of a dominant position. The case concerned a case where the collective administrator demanded fees from accommodation facilities for TV in unoccupied rooms. The Antitrust Authority ruled that payment of royalties was not a reasonable commercial condition if the use of the work could not be proven. The amount of the fine was also influenced by the fact that OSA represents foreign authors.

How to avoid problems?

You can buy a licence agreement for your premises on the website of the Copyright Protection Association and pay a monthly flat fee. If you are hosting an event, you must fill out an online form and include a list of all the songs that will be played at the event.

The music fees paid to the OSA vary based on the location, the number of people living there, and the use of the work. For events, it is calculated based on the price of admission and the number of attendees at the event.

An available attorney advises:

“Want to avoid OSA fees altogether? In that case, you should only play songs by composers not represented by the organization. But you have to assume in advance that these will not be well-known songs.”

OSA and fines

The Copyright Protection Association initiates hundreds of inspections per month. The moment they find out that you don’t have a copyright on your songs, they give you an additional period of time to enter into a license agreement retroactively. If you don’t, they will start charging you for unjust enrichment (=double the royalty you should have paid). If the dispute then ends up in court and you lose, you must also pay the court fees and the legal costs of the other party.

What about downloading songs from the internet?

Once you have downloaded your favourite song from the internet for your private listening, you are not breaking copyright law. However, it would be different if you then play the downloaded music to the public or sell it for a fraction of the price to a third party. On the other hand, however, the law states that “no exception to copyright shall be construed so that the legitimate interests of the author will be unreasonably prejudiced by its application.” We could interpret this to mean that you can only download music from legal sources, not from pirate servers.

The courts have ruled on this issue in criminal liability, where they have determined that the user does not have to investigate whether the source is legal and thus will not be criminally liable when using an illegal source. However, no clear position has been taken at the private law level. In this respect, the case of Uloz.to, which is litigating over the publication of works uploaded by users (specifically, some films, such as the movie Charlatan), will be a breakthrough. In general, everything is heading towards the so-called sharing economy, where individual users pay small fees for licences and do not actually own the property rights to the works.

Do you want to be sure about music copyrights?

We will draft or review a license agreement so that you avoid all risks in granting and using copyright. We will make sure it’s a fair set up with no ambiguities or kinks. We can handle this online, nationwide and normally within 2 days.