COPYRIGHT IN MUSIC

When do you have to deal with copyright?

What can you own copyright on?
How is copyright created?
Who is the maker or author?
When is permission required?
Assigning copyright
How high are royalties?
How long does copyright apply?
What are neighbouring rights?
What are moral rights?
What happens in case of an infringement?
Why do copyright organisations exist?
More information

Note: this text is focused at copyright in music. as a musician, you may also have to deal with
other kinds of copyright, for example if you want to use texts or photos for a poster or a cd.

When do you have to deal with copyright?

Creative artists are entitled to the copyright on the works they have created. One needs their
permission to use those creations. Since copyright is a significant source of income for
many people, right-holders will usually request a fee if others, such as music publishers,
orchestras, broadcasting companies etc., want to use their work: Naturally, permission may
also be granted free of charge, or refused. The rule of thumb is that everyone who wishes to
make public or to multiply copyright-protected work of others needs permission from the
right-holder (the artist or the person to whom he/she has assigned this right).

What can you own copyright on?

The Copyright Act offers protection to the producers (makers) of original creations in the
areas of literature, science and art.

Conditions for a work as defined in the Law on Copyright

A work must have an original character of its own. This means that the form may not be
borrowed from someone elses work. It must also bear the personal stamp of the maker,
which means that it must be the result of creative human labour and thus of creative
choices, and is thus a product of the human mind. . Finally, the work must have (had) a
form. Protection by the law on copyright does not take into account whether the creator
deliberately wanted to create the work or not, nor whether the product has the character of a
coherent creation.

An idea in itself is not protected by copyright. Copyright bears no relation to the artistic value
of a creation; kitsch can be a creation in the framework of copyright protection. It does not
matter whether the creator is an amateur or a professional, either.

Thus, the following may be copyright-protected:

musical compositions, even if they only ever existed live
documents: from novels to Sinterklaas-poetry, from letters and diaries to top-10 charts,
advertisements and slogans
plays, choreographies and pantomimes
speeches, recitations and comic monologues
films and video clips

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 paintings, drawings, (political) cartoons, comic strips, graphic art
architectural work, floors plans, maps
bank notes, lay-out and typeface
photographs and visual art work
products of industrial or artisan design

Is unfinished work protected by copyright?

Yes, rough drafts and plans are protected as long as they are original and perceptible. This
purports to the smooth transition between the pure, unelaborated idea that is unprotected,
and the idea that has been given a specific shape, and is protected as such.

Is a personal style copyright-protected?

No, a personal style or method of working is not copyright-protected, so anyone can use
someone elses style or method in his own work, or elaborate on and derive inspiration from
that. Note: it may be unlawful simply to take over someone elses style based on other legal
rules (trademark law, for example).

Is an idea for an opera copyright-protected?

An idea is unprotected by copyright as long as it has not been elaborated in a perceptible
shape. Copyright is possible on the perceptible design of an idea, not on the underlying idea
itself.

Does copyright apply to the performances and interpretations of singers, musicians

and elocutionists?
No, it does not. Renderings of other peoples work are not viewed as creations in the sense
of the Copyright Act. Performing artists do have comparable rights in regard to their
rendition or performance, however; these are arranged under the Neighbouring Rights Act.

How is copyright created?

Copyright is created automatically, simply by creating a work. If you compose a piece of
music you become the author of that composition. As soon as the work has been created it
is protected by copyright; this requires nothing more. You do not need to apply for, deposit
or register anything, add a copyright-notice or declare the copyright reserved. This applies
in some 150 countries that have signed the most important international treaty in this regard,
the Berne Convention.

To get copyright protection, is it required for a work to have been recorded in any
way, on audiotape, for example?
No, unrecorded musical improvisations are also protected as soon as they have been
performed live, on condition that the works are (have been) original and perceptible,
however.

Is it necessary to put a copyright-notice on a creation?

That is not necessary; after all, copyright is created automatically by creating the work. But it
can do no harm to have a , followed by the name of the copyright-holder and the year of
first publication, put on or in all copies of a creation. It will serve as a warning and indicate to
whom the copyright belongs.

If I have made a musical composition, do I need to have it officially registered?

No, you dont, but you could send yourself a copy in a closed envelope, dont open it!

As a Dutch citizen, do I also have copyright outside the Netherlands?

Yes, as a Dutch creator you can rely on copyright protection in all the (almost 150) countries
that have signed the Berne Convention; in practice, you enjoy the same protection as the
citizens of those countries do.

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Who is the maker or author?
The maker of a musical composition in the copyright sense is the composer, not the
orchestra or the publisher that produces the music on a cd. However, as regards works that
employees have created in the framework of their employment, in principle the employer is
the copyright holder. Parties may agree to diverge from this, though; sometimes this is
arranged in the collective bargaining agreement.

As a lecturer/employee, for example, when one is asked to compose a song, the copyright
belongs to the employer unless agreed otherwise. This need not be done in writing although
this is preferable, to avoid conflict afterwards. Think carefully of how you would like this
arranged, therefore, if you create a work when employed whereas this is not one of your
regular tasks.

Is there any difference between 'maker' and 'author'?

No, for the Copyright Act maker is the same as 'author'. The legislator prefers the concept
of 'maker' (producer, creator) because the concept 'author' is too reminiscent of only writing
authors.

How can you prove you are the 'maker' of a work?

The starting point is that the person indicated in or on the work as the maker is in fact just
that. Sometimes the registration of your work can be useful.

Who is seen as the 'maker' of a work if it was produced by a team?

If several makers create a work together, for example a song, opera or musical, there are
two possibilities.
1. Their contributions cannot be clearly distinguished => the makers acquire a joint
copyright on the whole.
2. The separate contributions, for example the lyrics and the melody of a song, can be
distinguished => each maker gets the copyright for his share.

Who owns the copyright if an employee produces something in his own time, so not
in his employers time?
The question whether a work was created in the employers time is nor relevant. What
matters is whether the employee made his creation in the framework of his employment. In
that case the copyright belongs to his employer (unless a different agreement was made).

Does a freelancer own the copyright on works he produces by order of someone

else?
If you get an occasional assignment, without there being a question of permanent
employment (employment contract), the copyright belongs to you.

To whom does the copyright belong on a work with contributions of various makers?
Sometimes a work consists of a number of separate works of two or more persons, as is the
case with a compilation cd. In that case, the person who was in charge of and supervised
the entire work has the copyright to the whole. This is separate from the copyright on the
separate works collected in the compilation.

Is the person who adapts someone else's work himself entitled to the copyright on
the adaptation?
Yes, the person who adapts (arranges) the work of someone else gets a separate copyright
on that adaptation (only if that adaptation is sufficiently original, of course). Naturally, the
copyright on the original work remains in effect. A consequence of this is that the person
who wishes to perform a copyright-protected adaptation of a musical composition, or wants
to exploit it in a different way, should take into account the rights of both the orchestrator
and the original composer. A lot to arrange!

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When is permission required?

There are only two forms of use that do not require permission!
The use in a circle of family or friends
Certain forms of use in education.
However, even these forms are interpreted in a restricted sense.

You may have to request permission for the use of copyright-protected works because you
want to multiply the or make them public them, respectively.

Multiplication can mean two things:

1. Making copies of a work (duplication), for example by reproduction, storage in
databanks, tape recording.
2. Producing an adaptation of a work, for example an arrangement. In general, each entire
or partial adaptation or imitation of a work in amended form may be categorised under
multiplication.

Making public means:

Making work available to the public by broadcasting, playing, performing or selling it.
The majority of musical authors have assigned their rights to Buma/Stemra, so this is
usually the organisation to turn to when you need permission.
Stemra is involved with multiplication rights; Buma is engaged with the right to make works
public.

Is permission needed to play protected music in a circle of friends or relatives?

Playing or live performing music on birthdays and family parties is not designated as
making public under the copyright law and may take place without prior permission of the
copyright holders (i.e. without permission of Buma). A condition for this exemption is that the
guests do not pay any entrance fee.

Is permission required for personnel- or school parties where music is played or

performed?
Yes. Playing music during a personnel- or school party is a form of making public that
requires Bumas permission. The same applies to a private concert, which is only accessible
to invitees.
As it happens, under the Copyright Act the only exception is for a circle of family or friends,
or anything that can be equated with that.

When does an educational institution not need permission?

A performance in a school does not constitute making public (so does not require
permission) if: 1) the education is offered by a non-profit legal entity; 2) the performance is
part of the curriculum. Private dancing schools, commercial courses etc. are not included in
this exception. In art courses, the rehearsals and performances in the framework of lessons
fall under the exception. If the performance takes place outside of the school, or if the public
needs to pay for a ticket, the exception may not apply. Always consult with your study
programme.

Can I play cds, tapes or records of my own in my shop or restaurant without

permission of the copyright holders?
No, protected music recorded on a cd or audio cassette cannot be played in public, that is to
say, outside the circle of family of friends, without Burmas permission.

Can I play music on the radio in my shop or company?

No, playing radio music in a shop or company also requires Bumas permission.

Can a music score be copied in part or in its entirety?

In the framework of 'private practice, study or use', anyone can make a few copies of pieces
from protected works, without permission and free of charge. It is not permitted to copy
entire works, unless they are short works or books that are no longer available (sold out).

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Can I tape music onto a (video) tape or audio cassette? After all, cds often have
"Unauthorised .... Copying of this record prohibited" on them.
Anyone is allowed, without permission and free of charge, for his own use or for purposes of
study, to make audio recordings of copyright-protected music on condition that the recording
is done by the person for whose study or private use that recording or copy is intended. As it
happens, according to the law a person is not allowed to order someone else to do this!
The afterwards giving away, lending or selling of copies made for ones own use is also in
violation of the Copyright Act.

Is permission of the copyright holders required to hire, lend, sell second hand or
auction off cds?
The control of the copyright holders over cds and records ends as soon as they have been
put into circulation by their permission, so one may give them away, lend them, sell them
second-hand and auction them.

However, they cannot be played in public without permission from the copyright-holder
because that is an act of making public. Permission is also required to rent out cds and
videos, for example. Public lending libraries do not need permission, by the way, as long as
they pay a fee to the Public Lending Right Office.

Assigning copyright
In principle, authors may collect the fees related to the rights on their work. However, this is
impossible for music: there are so many places where it may be performed (live
performances, radio, tv, etc.) and multiplied that individuals are unable to keep track of this.
This is why most composers and lyricists assign their rights to Buma/Stemra. These
organisations collect the fees that are owed, subsequently distributing them among the right-
holders.

Buma and Stemra do require that you assign the rights on all your works, which may be a
disadvantage if you record a cd of your music under your own management. That is why it is
also possible simply to become a member of Buma.

Does the owner of a work of art, besides the ownership right, also own the copyright?
Ownership rights and copyrights are two separate rights. If you buy a cd you are its owner,
but that does not make you the copyright-holder with regard to the work recorded on that
copy of the cd; as such, you are not entitled to multiply the work or make it public. That
requires permission from the copyright holders. Ownership, actual possession (a thief may
have actual possession!) and copyright are three quite separate things.

How high are royalties?

In general it is hard to say what the value of music copyright is. Public service broadcasting
can easily cost one euro per second, but commercial stations pay less than a quarter that.
However, that sum is for all the right holders, the composers, lyricists and music publisher
together. If a band performs for a buy-out sum of 1000, this will yield around 15 in
copyright fees. Whether it makes individuals rich or not, a lot of money is involved: hundreds
of millions of euros in the Netherlands alone.

Buma/Stemra
With a record company, you can agree on the royalties you will receive for your work in a
contract. Fees for rights on music that is broadcast on radio or tv, or played in public places,
are more difficult for the individual to collect, so you can join Buma/Stemra, an organisation
that collects fees for you. Buma collects fees for broadcasting, Stemra collects fees for
recorded audio carriers (cds, videos etc.).

Buma pays the fees based on the number of times the work has been made public. For this
purpose, the broadcasting channels, chain stores and hotel and catering industry send lists

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of broadcast music to Buma, where the data are processed through a points system. Music
for which Buma manages the rights (over 2 million works by over 13,000 members) is
allotted points based on its length, genre and complexity (number of voices). The number of
broadcasts multiplied by the number of points determines the fee to be paid out. Stemra
pays out money based on information from the record companies.

To become eligible for Buma/Stemra-collected fees you need to become a member.

Besides the one-off registration costs of 45 this is 62.50 a year in membership fees (for
authors). When you call the customer relations department they will first ascertain whether it
makes sense for you to join (which is the case if there are regular live performances, for
example, or regular radio- and/or tv broadcasts, or repertoire published by a record
company).

The private copying levy

The private copying levy is a levy on empty tapes, videos, etc. As a result of the wholesale
(free) copying at home, copyright holders miss out on part of their income. For example: a
Buma/Stemra affiliated composer makes a number of songs. Stemra gives permission to a
record company to publish those songs on cd, as a fee for which the composer receives a
percentage of the proceeds (royalty) through Stemra. If someone rents or borrows a cd and
copies it for himself, there is loss of income. After all, the composer does not receive
royalties on that copy, although he is entitled to them. The private copying levy was created
to compensate, to a certain extent, the loss of income incurred by copyright holders.

Manufacturers and importers of blank tapes and cassettes must pay this private copying
levy to the Home Copy Association (Stichting De Thuiskopie). Subsequently, this
association distributes the money thus collected among the right holders. The
manufacturers and importers pass these costs on to the consumer, the purchaser of the
blank tapes and cassettes.

How long does copyright last?

The principal rule says that copyright ends 70 years after the year in which the creator of the
work has died. Often, the copyright will turn out to be in the hands of the legal or
testamentary heirs of the creator of the work. Composers of a lot of classical music died
over 70 years ago, leaving that music free from copyright. If an anonymous or
pseudonymous work or a creation by a legal entity is concerned the term of protection is 70
years from the first time the work in question was made public.

What are neighbouring rights?

The Neighbouring Rights Act arranges the protection of performing artists, phonogram- and
film producers and broadcasting stations.

What are moral rights?

Moral rights protect the non-commercial interests of the maker. Based on these rights,
makers of works may resist the changing or mutilation thereof, or can act if their work has
appeared in someone elses name. Unlike copyright, these moral rights are non-
transferable, therefore. So a maker who has assigned his copyright will retain his moral
rights in any case!

Can a maker resist publication of his work under someone elses name?
Yes, he can; this is also called 'plagiarism' and he can always act against this, as well as
against publication without identification of him as the maker.

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Can a maker resist the changing of the title of his work?
Yes, the maker need not accept this.

Should the maker accept changes being made in his work?

In principle, he need not, unless the changes are such that resistance against them would
be unreasonable.

Can a maker protest against mutilation or deformation of his work?

Yes he can. The maker can always resist radical changes amounting to mutilation or
deformation or any other damage to his work, definitely if he feels that these are damaging
his honour or good name.

Do moral rights lapse after a makers death?

Moral rights are not just non-transferable; they do not automatically pass on to the makers
heirs, either. The maker may assign these moral rights to someone to invoke after his death,
in a will or supplement thereto. If the maker has failed to appoint someone, nobody will be
able to exercise those rights after his death. Moral rights to a work lapse anyhow, by the
way, as soon as the copyright lapses.

What happens in case of an infringement?

Intentional or non-intentional (threatening) infringement of his right can be resisted by the
copyright holder in question.

If your protected work appears on the market without your permission, or is published or
appears on cd, you can take legal action. Before instituting legal proceedings it is advisable
to consult a lawyer or a legal aid office. If angry letters do not help and a mutual settlement
seems unlikely the court may have to intervene. The Public Prosecution Service offers the
option of criminal prosecution in case of intentional infringement. Some infringements are
even considered crimes. The court may impose a prison sentence of no more than four
years or a fine.

Why are there copyright organisations?

For the copyright holder
Composers are not or hardly able to check by whom and how often their work is made
public or multiplied. After all, infringements against heir work may take place everywhere,
and may remain completely unnoticed. That is why copyright organisations were created, to
enter into agreements with users (pubs, broadcasting stations, concert halls, etc.) on behalf
of affiliated members, and to act against any abuse.

For those who want to ask permission

For the users, these intermediary organisations are very useful because they can obtain the
necessary permission quickly and simply (i.e. from one central place) and pay any royalties
they may owe.

The copyright organisations

The main organisations for composers are Buma and Stemra. Buma Jr. is an organisation
especially of composers and writers under the age of 26. Their site has many links to other
copyright organisations. Besides these official organisations there are numerous agents,
both at home and abroad, who manage composers copyrights.

More information
BeroepKunstenaar.nl page Copyright and Music on the internet (pdf)
Buma Stemra
Buma Jr.

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 Stichting Leenrecht
Stichting De Thuiskopie
Juridisch loket
Kvk: idee beschermen

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