If every user of music had to negotiate a licence with every copyright owner, it would be a very costly and time consuming, if not impossible, task. COSCAP exists to facilitate the legitimate use of music. For a very moderate fee, COSCAP issues licences to the users of music which permits the immediate and legal use of any of the works within COSCAP’s extensive repertoire.
The Entertainment Licence only authorises the venue to play loud music and does not license the use of protected music.
When a COSCAP licence has not been obtained for the public performance, manufacture or importation of sound recordings, films or videos which reproduce works or where a radio or television advertisement is made which reproduces works from the COSCAP repertoire, civil action for copyright infringement may be instituted. Remedies granted include damages, legal costs and an injunction that prohibits the performance or the manufacture, importation or distribution of recordings of any musical works in COSCAP’s repertoire.
If the music is being performed publicly, then although you may own the CD you do not have the right of public performance which remains with the copyright owner. You will therefore still need a COSCAP licence.
There are different types of licences for the reproduction of music and depending on your project you may require more than one licence.
The synch licence is generally a grant from the publisher or his/her representative which authorises the utilisation of the underlying musical work in combination with visual images such as in television programmes, motion pictures, videos and computer programmes. Similar to a mechanical licence, any proceeds go to the benefit of the publisher and/or writer (i.e. the owner of the copyright in the underlying work).
If a performance is captured live on a medium such as television, the first transmission of the programme containing that performance does not require a synch licence but it will require a performance licence.
Where a recording of another recording is used, then the permission of the copyright owner of the rights in that sound recording is also necessary (a master use licence).
Most sound recordings include musical and literary works (lyrics) which are separately protected by copyright under the Barbados Copyright Act 1998. The copyright in music and any accompanying lyrics is distinct from the copyright that subsists in the sound recordings in which the works are embodied.
The Copyright Act of Barbados 1998 provides the owners of the copyright in musical works the exclusive right to make or authorise the making of copies of their musical works.
COSCAP is a copyright collection society which represents almost all the writers and publishers in Barbados for the reproduction (copying) of their works, in addition to many international works, as a result of its reciprocal agreements with similar societies internationally. This is because when someone joins COSCAP, they assign their public performance and reproduction rights to the Society.
The licences to authorise reproduction are commonly referred to as “mechanical licences”. However, if the copy is not a straight cover version of a pre-existing work but is an adaptation, permission must first be obtained from the author or his/her publisher.
A licence will be necessary when a recording is made specifically for the applicant’s own use as a background to a performance or other event. However, this licence would not cover the following uses:
The printing of the lyrics on inserts will require additional licences which must be obtained from the music publisher and/or songwriters who control the print rights in the music or lyrics.
This is the re-recording of a sound recording; it is illegal to re-record a sound recording without the permission of the copyright owner. You must have permission from the copyright owner (usually the record company) to dub or re-record, for example if you are going to sample or use the works in advertisements.
The type of licence required is called a master use licence. When sound recordings are reproduced in any format such as CD, DVD or CD-ROM, in order not to be liable for infringement you must seek clearance not only from the owners of the copyright in the underlying copyright (the song) but you must also seek clearance from the owners of the rights in the sound recording itself. If you have obtained clearance from the owners of only the copyright and not the related rights or vice versa, you will still be liable for infringement of the right of reproduction.
If you later decide to make more copies than was originally indicated on the form then a new application must be completed and the additional royalties will be payable. If you would like to make any alterations to your application, for example changing the track listing, a new application form must be submitted indicating such changes.
What If You Decide Not to Proceed with Manufacture?
If after submitting the licence application and paying the relevant fees you decide not to proceed with the manufacture of the phonogram, you must promptly inform COSCAP of this in writing. As long as the royalties have not already been distributed, COSCAP will either issue a credit note against the future pressing of the same record or a refund less administrative fees.
One of the most important means by which the owners of the rights in a song earn income is through the royalties paid for the public performance of their work. As a result of the effort expended in the creative process and the importance of creative activity in economic, social and cultural development, the creators of artistic works, including music and those who finance and commercialise these works, are under the Copyright Act of Barbados entitled to be compensated for the use of their music, including when it is played in public.
Consider some of the benefits you derive from the use of music:
It directly earns revenue, for example when used in nightclubs and performed at concerts.
It is used as an amenity to attract clientele, for example performances in hotels.
It provides ambience which encourages employees to be more productive and provides for more attractive premises, for example in shops, offices and restaurants.
A public performance of music is defined as any performance of music outside of the regular domestic environment and includes, for example, performances in hotels, restaurants, performances given to members of a club and the use of a radio in an office by staff. It does not matter if there is an admission fee or not but whether the performance is public.
It is an infringement of copyright under the Copyright Act of Barbados 1998 if a person, without the consent of the owner of the copyright, imports into Barbados a recording other than for private use, which is, and which that person knows or has reason to believe is an unlawful recording. The importation of infringing copies of phonograms or knowingly selling them is an infringement of the copyright in the underlying work.
In particular, importers should be very careful when importing phonograms from countries which are not signatories to the Berne Convention and therefore do not offer the level of protection, if any at all, as those countries which are signatories and very often these non-Convention countries have large-scale piracy. It is important to pay attention to the country where the sound recording was made, not where it was imported from. Even when countries are signatories to the Berne Convention you should still pay careful attention to imports from countries where piracy is rife. Very often phonograms are made in these countries without the permission of the copyright owners and even if a licence is obtained, royalties are not properly paid.
In an effort to ensure that infringing copies are not imported for commercial purposes into Barbados, COSCAP provides a Notice of Importation of Phonograms Form to be completed by importers.
Yes; whether or not you are making money from your activity will only have an impact on the level of penalties applied by the courts.
Yes; the fact is, there is a substantial use of protected music in television programmes and in commercial breaks, therefore the broadcast of these works must also be licensed.
Yes; as long as you use copyright protected works, you will need a licence. Nonetheless, where the proceeds are going to charity, a licence may be granted at a nominal fee.
COSCAP is required to provide its annual audited accounts to the Corporate Affairs Office and any member of the public can therefore obtain a copy. These clearly show that from the royalties collected administration fees are deducted and the remainder is distributed.
As a result of its reciprocal agreements with foreign societies, COSCAP protects a repertoire of works (over 13 million) written by hundreds of thousands of songwriters worldwide. Under the law it is the duty of the music user to make sure that the songs played do not infringe copyright.
When COSCAP’s tariffs are formulated these factors are all considered and adjustments made to address these situations, otherwise tariffs would be higher. Additionally, COSCAP grants blanket licences on an annual basis and these cannot be based on anything but a year’s activity. You should note, however, that your copyright licence fee will be a minor expense in the business’s operating costs and yet it plays a very important role in the service provided by your establishment.
If you would like to manufacture a phonogram (CD, Mini Disc, Record, Cassette etc.) you will need permission from the owner of the reproduction right or, as long as the owner is a member of COSCAP, then you must contact COSCAP which will grant permission by way of a licence. This permission must be sought in advance of the manufacture of copies.
In practical terms this means that the producer must contact COSCAP and not the writers or publishers if he plans to have phonograms manufactured. COSCAP will grant the necessary licences and collect royalties which will be directly payable to those whose works are used.
What is the Licensing Process to obtain a Mechanical Licence?
Those who intend to have phonograms manufactured should complete an application form. When this is submitted, COSCAP will then begin the process of identifying the ownership of the works on the application. This process may take up to eight weeks from the date of receipt of the application. When submitting the licence application, the applicant should also provide a copy of the manufacturer’s invoice, specifying the quantity of phonograms to be manufactured.
A statement will then be generated indicating the works which are administered by COSCAP and the names of the relevant authors and publishers; COSCAP will also advise whether the copyright has expired in any of the works (public domain works) as well as which works it does not administer. At this time COSCAP will also issue a statement on the royalty payable and an account summary stating whether the Producer’s account is currently in debit or credit. The royalty is calculated on a pro rata basis depending on the number of works COSCAP controls. Producers must pay a royalty deposit to COSCAP in accordance with the licensing agreement.
There are different laws for different areas. The Copyright Act of Barbados 1998 protects the economic interests of the creators of artistic works; it does not discriminate against businesses using music. The main principle is that no one, especially for-profit organisations, should exploit the property of someone else without compensating them.
After deduction of administration fees and small deductions for reserved funds for the promotion of cultural activities, the royalties received from licensing premises and events are then distributed through the use of programme logs received from radio stations, which are used as a proxy for the allocation of royalties for music played in night clubs, shops and anywhere else except live concerts, where logs are collected separately.
Each time a song appears in the logs it is allocated a credit and in this way, funds are apportioned to COSCAP’s local members and international affiliates. Payments can only be made to individual members, and not groups, who are members of COSCAP or an affiliated society.
If COSCAP does not represent some of the works on the phonogram this may be because the work is in the public domain (out of copyright) or the owner(s) of the relevant copyright may not be a member of COSCAP or any of its affiliates. If COSCAP does not represent the work then permission will have to be obtained from the copyright owner.
The COSCAP licence will only cover the reproduction of the works controlled by COSCAP on to an audio format. If the phonogram is made from another recording, then the permission of the copyright owner of the rights in that sound recording is also necessary (a master use licence).
A COSCAP licence is not necessary for:
live performances in dramatic or theatrical productions such as musicals, operas and ballets and
the use of recorded music only by charities or similar benevolent organisations to the extent that the proceeds from the event will be used for a charitable cause.