Kwabena Frimpong Mensah Esq and Adwoa E Paintsil Esq***

“(a) to represent and protect the professional, economic, moral and other interests of authors of literary, musical, artistic, dramatic and other works.

(b) to serve as a collecting society for the collective administration of copyright of the members of the Society.”

Under LI 1527 a board comprising persons in the various sectors of the creative arts industry including artistes was established for the administration of copyright in Ghana.[2] The functions[3] of the board included the following;

(a) to administer on an exclusive basis within Ghana and elsewhere by means of reciprocal agreements, all rights relating to public performances, mechanical and reprographic reproduction rights;

(b) to act as an intermediary for the conclusion of contracts between authors and users of authors’ works;

(c) to receive and record any information from its members in respect of the identification of authors and their works;

(d) to charge and collect royalties from the users of authors’ works and pay such royalties to the appropriate authors;

(e) to ensure that the conditions attached to the grant of compulsory licenses under sections 21 and 24 of the Copyright Law, 1985 (P.N.D.C.L. 110) are complied with”

The work of COSGA was supported by the Copyright Office established under the Ministry of Justice in 1985.[4]

In 2005 however, Parliament passed the Copyright Act 2005, Act 690 (hereinafter referred to as Act 690) to bring the provisions on copyright and the Copyright Office in conformity with the Constitution and to provide for other related purposes.
With the enactment of the Copyright Act 2005, persons in the creative arts industry were granted the liberty to form associations which would effectively protect their rights and collect on their behalf royalties from their works.[5] This was a deviation from the existing legal set up, previously under LI 1527.

Pursuant to the provisions of the Copyright Act 2005, Act 690 the Ghana Music Rights Organisation (hereinafter referred to as GHAMRO) was formed as a company limited by guarantee on 23^rd December, 2011 to manage the rights of music owners.[6] At the time of formation, GHAMRO was headed by a 12-member interim board comprising, Carlos Sakyi, Amandzeba Nat Brew, K.K. Kabobo, Mark Okraku Mantey, Kojo Antwi, John Mensah Sarpong, Akwesi Agyepong, Ahmed Banda (Bandex), Bice Osei Kuffour (Obour), Daniel Adjei (Dan Ray), Abebe Kakraba, and Mary Ghansah.[7]

The operations of GHAMRO have come under scrutiny in recent years, as complaints have been made by members of the association over unpaid royalties.  GHAMRO has also expressed the challenges it faces with respect to its operation.  Recently speaking at an interview with Happy Fm’s Dr. Can, the current President of GHAMRO, Rex Owusu Marfo, indicated that GHAMRO faced challenges not only with the collection of the royalties, but with distribution, a problem which he claimed was currently being addressed by the organisation.[8]  
Matters came to a head when an artiste, by the stage name Ama Rasta, cursed GHAMRO over non-payment of collected royalties.[9]

Intrigued by this turn of events the authors have set to write this paper to discuss the economic rights attached to ownership of copyright protected works, the establishment of copyright collective administrative societies in particular the Ghana Music Rights Organisation. The article will also focus on its membership, monopoly, powers of revenue collection and the challenges it faces in this respect.  

 

2.0    RIGHTS AVAILABLE TO ARTISTES

Every artist in whatever form is entitled to the exclusive use of his creation and to enjoy any monetary gains made from the public display or performance of his work. Under Act 690, all creative artistes are entitled to copyright protection if their work falls under any of the works stated in Section 1 of Act 690. Section 1 of Act 690 states:

 “An author, co-author or joint author of any of the following works is entitled to the copyright and protection afforded to that work under this Act
(a) literary work,
(b) artistic work,
(c) musical work,
(d) sound recording,
(e) audio-visual work,
(f) choreographic work,
(g) derivative work, and
(h) computer software or programmes”

Per section 1(2) of Act 690 A work will be afforded copyright protection in Ghana if

1. it is original in character,
2. it has been fixed in any definite medium of expression now known or later to be developed with the result that the work can either directly or with the aid of any machine or device be perceived, reproduced or otherwise communicated, and
3. it is
   (i) created by a citizen or a person who is ordinarily resident in the Republic,
   (ii) first published in the Republic and in the case of a work first published outside the Republic is subsequently published in the Republic within thirty days of its publication outside the Republic, or
   (iii) a work in respect of which the Republic has an obligation under an international treaty to grant protection.it is original; made in a fixed medium possible of reproduction; made by a citizen.

Once the works in question satisfies the criteria as stated above the owner of the work is entitled to copyright protection and the enjoyment of the moral and economic rights that come with copyright protection.
Under the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) of 1886 of which Ghana is a signatory, Article 11bis, music right holders have the exclusive right to authorise,

1. the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
2. any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organisation other than the original one;
3. the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

These set of rights form part of our laws in Ghana, and is reproduced in Sections 5 and 6 of the Copyrights Act 2005, Act 690.
Section 5 of Act 690 grants the author of protected copyright work, the exclusive economic right to do or authorise the doing of the following;

(a) the reproduction of the work in any manner or form,
(b) the translation, adaptation, arrangement or any other transformation of the work,
(c) the public performance, broadcasting and communication of the work to the public,[10]
(d) the distribution to the public of originals or copies of the work by way of first sales or other first transfer of ownership, and
(e) the commercial rental to the public of originals or copies of the work.

The learned author Andrew Amegatcher in his book ‘Ghanaian Law of Copyright’ at page 26 describes economic rights in this manner,

“Economic rights are the rights of exploitation of the work and the resulting right of receiving remuneration there from. The creation of a work will not itself generate income for the author. It is the exclusive right it gives to the author to exploit his work . . . and to receive appropriate remuneration which makes copyright a commodity which can be bought, sold or transmitted to others by will. The economic exploitation of one’s work involves the author in many forms of licencing agreements.”

Per section 6 the author of protected copyright work has the sole moral right

“(a) to claim authorship of the work and in particular to demand that the name or pseudonym of the author be mentioned when any of the acts referred to in section 5 are done in relation to the work, and
(b) to object to and seek relief in connection with any distortion, mutilation or other modification of the work where that act would be or is prejudicial to the reputation of the author or where the work is discredited by the act.”

To aid artistes fully enjoy the economic rights associated with their work, Act 690 allowed for the creation of various associations to collect the monies due to artistes from their work.
Section 49 of Act 690 provides which is the basis on which artistes were allowed to form associations of their choice states:

“Section 49.    Collective administration societies
(1) Authors, producers, performers and publishers may form collective administration societies for the promotion and protection of their interest.
(2) A collective administration society may, acting on the authority of the owner of a right, collect and distribute royalties and any other remuneration accruing to the owner.
(3) The Minister may, by legislative instrument, make Regulations for the formation, operation and administration of societies.”

 

3.0    FORMATION OF COLLECTIVE ADMINISTRATION ASSOCIATIONS

GHAMRO, as a collective administration association is regulated by the provisions of the Copyright Regulations 2010, LI 1962. The regulations provide that all collective administration associations can only operate after the approval of the Minister for Justice.[11]
 Regulation 20 of LI 1962 states as follows

“(1) A person shall not operate a Collective Administration Society without the approval of the Minister in writing.
(2) Where a society operates in furtherance of copyright and related rights without approval, each member of the governing body of the society and every director, manager, secretary or similar officer of the society is deemed to have committed the offence and is liable on summary conviction to a fine of not more than one hundred and fifty penalty units or imprisonment to a term of not more than twelve months or to both”.

Regulation 21 of LI 1962 states the contents of an application for the creation of a collective administration society. Under Regulation 21, an application by a society to be a collective administration association, must indicate the following[12],

1. The name of the society
2. Whether or not the society is registered as a company.
3. The type of right the society intends to administer, be it music; performers rights; audio-visual; or literary rights
4. The membership of the society
5. The address of the society’s registered office

The application must be sent together with the payment of a fee to be determined by the Minister of Justice. The minister on receipt of the application shall grant the approval provided the society can fulfil the conditions antecedent to the grant of approval. Regulation 23 of LI 1962 states as follows:

“The Minister shall not grant approval for a society to operate unless that society

1. is a body corporate registered as a company limited by guarantee under the Companies Act, 1963 (Act 179),
2. if it is a music, audio-visual rights, performers rights or literary rights society, provides evidence of having functional presence in at least two regions as follows:
3. keeps a national and regional register and provides evidence of these registers,
4. provides, evidence where
    (i) the society is a music rights or performers rights society that it has at least twenty members in each of the regions in which it has a functional, or
   (ii) the society is a literary rights or audio-visuals rights society, that it has at least fifty members at the national level,
   and each member has at least one published work or holds the entire economic rights on one published work.”

Regulation 22 (4) of LI 1926 provides that the Minister shall communicate his approval or refusal of an application within 21 days of receipt of an application. The approval once granted is for a period of 5 years and renewable every five years[13].
A collective administrative society when properly formed has the following powers as stated in Regulation 29 of LI 1962.  These are:

1. receive royalties and other moneys to which its members are entitled,
2. take measures that the society considers appropriate for the collection of royalties and any payments to which members of the society are entitled,
3. enforce the rights of its members by
4. entering into contract, and
5. reviewing contracts in respect of works of its members,
6. either acting alone or with other appropriate institutions
7. seize works which infringe the rights of its members,
8. cause the arrest of persons who infringe the rights of its members, and
9. institute legal action against persons who infringe the rights of its members.
   
   

 

4.0    OPERATION OF THE GHANA MUSIC RIGHTS ORGANISATION

As earlier stated, the Ghana Music Rights Organisation was established in December 2011; its aim was to collect royalties from the public performance, broadcasting and communication of its members’ work and to distribute the royalties collected to the members.[14] The organisation has a current membership of over 4,000 made up of artistes and composers from all regions across the country. 
Artistes become entitled to royalties whenever their work is broadcast, communicated to the public or publicly performed. Section 37 of Act 690 provides the instances when an artiste becomes entitled to royalties. The section states,

(1) Where in a public place by means of broadcasting, cinematography, jukebox or other apparatus, a sound recording or audiovisual work is used the authorised performer and producer of the sound recording or audiovisual work are entitled to royalty in accordance with this Act.
(2) An owner of copyright is entitled to collect royalties for the live performance of the copyright work or for the public performance of the recorded copyright work.”

For the avoidance of doubt, Act 690 clearly defines these terms in Section 76 the interpretation section as follows:

A broadcast is defined “as the transmission of copyright works for reception by the general public over a distance by means of radio, television, electromagnetic emissions, light beams, wire, cable or other means”

 Communication to the public is defined as “ means the transmission, other than broadcasting, by wire or without wire, of the images or sounds or both of a work, a performance or a sound recording in such a way that the images or sounds can be perceived by persons outside the normal circle of a family and its closest social acquaintances at a place or places so distant from the place where the transmission originates that without the transmission, the images or sounds would not be perceivable irrespective of whether the person can receive images or sounds at the same place and time, or at different places or times individually chosen by them;

A public place includes a building, place or conveyance to which for the time being the public are entitled or permitted to have access, without a condition or on condition of making a payment, and theatres, hotels, cinemas, concert halls, dance halls, bars, clubs, sports grounds, holiday resorts, circuses, restaurants and commercial banking and industrial establishments;

Public performance means
(a) in the case of a work other than an audiovisual work, the recitation, playing, dancing, acting or otherwise performing the work, either directly or by means of any device or process;
(b) in the case of an audiovisual work, the showing of images in sequence and the making of accompanying sounds audible; and
(c) in the case of a sound recording, making the recorded sounds audible, at a place or at places where persons outside the normal circle of the family and its closest acquaintances are or can be present, irrespective of whether they are or can be present at the same place and time, or at different places or times, and where the performance can be perceived without the need for broadcasting or communication to the public within the meaning of the definitions of “broadcasting” and “communication to the public”

A practical illustration of what constitutes a public performance is provided in the south African case of SOUTH AFRICAN MUSIC RIGHT ORGANISATION LTD V TRUST BUTCHERS (PTY) LTD 1978 (1) SA 1052.

In the case of SOUTH AFRICAN MUSIC RIGHT ORGANISATION LTD v TRUST BUTCHERS (PTY) LTD (supra), the Defendant owned a butchery. It had on its premises a radio and from time to time operated the radio to receive broadcasts from the South African Broadcasting Corporation, and which broadcasts were emitted through a loudspeaker on the premises. At the time, the radio was being operated, the South African Broadcasting Organisation would play a fair number of musical works. The South African Music Right Organisation Ltd contending that the Defendant had performed the works in public, brought an action to prevent the Defendant from continuing to make said broadcasts available without the authorisation of the South African Music Right Organisation Ltd.
The Court speaking through Addleson J, stated,

“There is clear ad acceptable evidence from Mr. Bell, an inspector employed by the Plaintiff and his assistant, Mr. Chauke that…they visited the Defendant’s premises and heard musical works playing in the butchery…clearly audible to staff and customers of the butchery…I find therefore that the Defendant regularly caused public performances to take place…of musical works broadcast by the South African Broadcasting Corporation and received by the radios then in the butchery.”

The inference drawn from this holding is that once you publicly broadcast any literary work, you are liable to pay royalties to the requisite music rights organisation. It is also apparent from the ruling that it is immaterial the means by which the broadcast to the public was made.
The test for what constitutes a public broadcast is first espoused in the case of HARMS (INC) LTD AND CHAPPELL & CO LTD V MARTANS CLUB (1927) 1 CH 526. The court in the case stated as follows,

‘The question whether a work is performed or a sound recording, film or television broadcast seen or heard in public is solely one of fact. In determining this question, the following considerations and tests have been applied: whether there has been admission of any portion of the public with or without payment to the injury of the author, i.e. to say, of the class of persons who would be likely to go to a performance if there was a performance at a public theatre for profit, or whether the performance was private or domestic, a matter of family or household concern only.’

Any performance which is not domestic or quasi-domestic will be regarded as in public even if only a few members of the public are present or that no charge for admission was made.
In the case of PERFORMING RIGHT SOCIETY LTD V HARLEQUIN RECORD SHOPS LTD [1979] 1 W.L.R. 851, the term “owner’s public” was defined as an audience from whom the composer would expect to receive a fee for performance.

The test to determine who must acquire a license lies not in the nature of work of the holder, nor in whether or not the music is played for commercial purposes, but in the character of the audience.[15] The questions to be asked Is the audience of a private, domestic nature or of a public, non-domestic nature? In JENNINGS V STEPHENS [1936] 1 AER 409, Greene LJ stated that an audience would be deemed public and non-domesticated where the audience, when considered in relation to the performer/ copyright owner, could be properly described as the performer/right holder’s public. Per Greene LJ

“…if the audience considered in relation to the owner of the copyright may be properly be described as the owner’s “public”, or part of his “public”, then in performing the work before that audience he would, in my opinion, be exercising the statutory right conferred upon him and anyone who without his consent performed the work before that audience would be infringing his copyright

In our own jurisprudence the tests as stated above were used in the case of COPYRIGHT SOCIETY OF GHANA (COSGA) V AFREH [1999-2000] I GLR 135. The learned judge in that case, Justice Twumasi, held as follows,

“The law gives to the author of the musical work the exclusive right to communicate the work to the public by playing it in the public to listeners. The drinking bar operator cannot usurp a legal right which belongs to the author of a musical work and at the same time dismiss the claim of the author for remuneration”

In COSGA V AFREH (supra), COSGA lodged an appeal  against the ruling of the High Court which was to the effect that, COSGA had no legal right to enforce payment of royalties or copyright fees against members of the National Drinking Bar Operators Association of Ghana in respect of their public use of any musical work in their drinking bars. The main issue for determination on appeal was whether or not, playing music through a purchased cassette amounted to a public performance. In response to that, Justice Twumasi stated,

“…evidence that a drinking bar operator had derived gain from the public use of a musical work was not an essential factor or condition for determining liability to pay remuneration by way of royalty to the author…I am clearly of the view that the COSGA has every right to surcharge any drinking bar operator or hotelier or restaurant proprietor or others in this class of business, remuneration or royalties for playing musical work on a radio cassette or any other means at the said bars, hotels and restaurants etc, because the playing of the music to the hearing of members of the public buying and drinking at the said places constitutes communication of musical work to the public… I also gather from the submission of counsel on both sides that a musical work falls under the definition of a phonogram, but from whatever angle one looks at the provision the claim by the respondents that they pay tax through purchase of musical work under the banderole system and therefore they could not be required to pay royalty to COSGA is totally untenable because the author’s right under section 6(1) of PNDCL 110 is entirely independent other banderole system, although he is also entitled to royalties by virtue of the provisions of section 36 of PNDCL 110 jointly with the producers and performers referred to in that section of the law.”

The learned Justice in COSGA V AFREH (supra) further stated,

“In this regard it is worthy of notice that nowhere in PNDCL 110 has the legislature stated that royalties for any work including musical work are exigible only where there is proof that the said work was played in a public place for gain. It may be assumed, not unjustifiably, that the legislature opined that to a user or listener of music alike gain or some profit, albeit intangible is implied in the playing thereof: that music is pleasurable to all and that its intrinsic value which can be construed as gain or profit makes it superfluous to mention it in a statute. I suppose that it was in the light of this fact that counsel for the appellant relied on a dictum of Justice Oliver Wendel Holmes in the United States case of Victor Herbert v Shanley Co; Sonsa v Vanderbilt Hotel, 242 US 591 (1917) where he said: ‘If music did not pay it would be given up … Whether it pays or not the purpose of employing it is profit and that is enough.’”

The effect of this decision coupled with the position of the law with regards to the rights of the music rights holder, reveals that any communication of music to the public must be with express authorisation of the music rights holder. To buy the music alone does not authorise communicate it to the public, accordingly said authorisation must be express.

In Ghana, there has been contention in some legal circles that the purpose of the regulations is to ensure that persons or entities which broadcast artistic works for commercial purposes to the public must pay royalties. If the broadcaster’s nature of business can survive without the broadcasting of the artistic works, then the broadcaster should not be deemed to have to pay royalties. It has been suggested that there should be a minimum test to be developed to determine the eligibility bracket for payment of royalties. For instance, if a person is sells TVs, he has to turn on the TV to show to a prospective purchaser that the TV actually works. If he turns on the TV and tunes it to a TV station which may be playing a song, will the seller be deemed to have publicly broadcasted the song and therefore eligible to pay royalties? 

Where a person broadcasts the music of an artiste without the artiste’s prior authorisation, the person commits a crime and on conviction is liable to pay a fine or a serve a term of imprisonment. Infringement of these rights carries both civil and criminal liability. Sections 43 and 47 stipulate,

“43.
A person who infringes a right protected under this Act commits an offence and is liable on summary conviction to a fine of not more than one thousand penalty units and not less than five hundred penalty units or to a term of imprisonment of not more than three years or to both; and in the case of a continuing offence to a further fine of not less than twenty-five penalty units and not more than one hundred penalty units for each day during which the offence continues.

47.
(1) A person whose rights under this Act are in imminent danger of being infringed or are being infringed upon may initiate civil proceedings in the High Court
(a) for an injunction to prevent the infringement or prohibit the continuation of the infringement…
(c) for the recovery of damages for the infringement.
(2) On an ex parte application, the Court may make an order in chambers for the inspection or removal from the defendant’s premises of copyright infringing materials which constitute evidence of infringement by the defendant.“

Failure to successfully prove a criminal action for infringement does not bar the right holder from maintaining a civil action against the offender and a victim may continue with a civil action against the offender well after the criminal matter has been disposed of. Per Section 47(4) of the Copyright Act, a person who sustains damage from an infringement of that person’s rights under Act 690 may institute civil proceedings against the person responsible for the infringement whether or not the person has been successfully prosecuted.

4.1     Revenue Collection Duties of GHAMRO

As stated in Regulation 29 of LI 1962, the core function of GHAMRO is to collect royalties on behalf of its members and pay these royalties to the members. The organisation in pursuance of this function sets to licence all institutions that play music as part of their business for the purpose of collecting these royalties. GHAMRO is empowered in this regard by virtue of the provisions of Regulation 37 of LI 1962. The regulation provides as follows: –

(1) An application to use or perform a work shall be as set out in Form 1 in the Fifth Schedule to these Regulations.

(2) A society shall charge royalties in respect of the grant of a licence as it may determine.

(3) Subject to sub-regulation (2), a person who fails to renew a licence two months after the expiration of the licence, shall in addition to the royalties charged, pay a late renewal fee of not more than fifty percent of the royalties charged.

(4) A society may request a person granted a licence to submit monthly returns of all the authors’ works used or performed by the person, to the society.

(5) The returns shall be as set out in Form D in the Fifth Schedule to these Regulations.

(6) A person who fails to comply with a request made to that person under these Regulations, or makes a declaration which the person knows to be false, commits an offence and is liable on summary conviction to a fine of not more than one hundred penalty units or to a term of imprisonment of not more than six months or to both.

There are two primary forms to be filled to use or perform a work under Regulation 37. The first, which is set out in LI 1962 and aimed at outdoor events requires that the applicant provide the following information;

1. Date of performance
2. Nature of performance
3. Place of performance
4. Seating capacity
5. Time
6. Gate fee

The second, which is supplementary to the first and aimed at establishments requires applicants to state clearly,

1. the activities of the establishment i.e. whether a restaurant, bar, hotel, discotheque, supermarkets etc.
2. the seating area of the establishment;
3. the opening days of the establishment
4. the music device used
5. the average cost of drinks and food within the establishment if it is a restaurant.
6. the number of rooms with a device that can broadcast music, if it is a hotel
7. the number of floors that will play music, if it is a supermarket
8. the number of staff hired

The establishment is then required to sign a declaration stating that the information provided is genuine, this declaration is signed also by an inspector from GHAMRO who has gone to inspect the establishment.

The data above is used by GHAMRO to assess the volume of music played and the proper rates the establishment and event organisers will have to pay for playing these musical works. 

GHAMRO is also empowered for the purpose of royalty collection to send notices to establishment who play musical works but have not yet registered with GHAMRO to do so. Under these provisions, GHAMRO has the right to request hotels, pub-owners, bar-owners, shop owners and all other persons who publicly broadcast music to acquire the appropriate licenses[16] from GHAMRO. These broadcasts, according to the ratios in COSGA V AFREH (supra) and SOUTH AFRICAN MUSIC RIGHT ORGANISATION LTD V TRUST BUTCHERS (PTY) LTD (supra) and need not be carefully curated or selected, it suffices if the music is played from a radio broadcast.

 

4.2     Monopoly of GHAMRO

Since the formation of GHAMRO in 2011, no other collection society has been formed under Section 49 of Act 690. GHAMRO thus collects all royalties arising out of the copyright administration of music. An attempt was made by Ace Ghanaian highlife singer, Akosua Agyapong to form a royalty collection society to serve the same purpose as GHAMRO. Her application for a licence was however rejected by the Minister for Justice. Akosua Agyapong has since stated however, that the rejection of her application by the Minister for Justice would not deter her from forming a second music royalties collection agency.[17]

This is however not the case in other jurisdictions, where there are multiple royalty collection societies, each responsible for collecting royalties for their members. There exist different societies for composers, artistes, songwriters and cover every medium by which music may be played.

The benefit of having so many of such societies working in one industry is that at every point the music rights holders are assured that they are duly paid for the creative works they put out irrespective of the medium used. We shall proceed to look at a few examples from other jurisdictions in the paragraphs below.

In the United Kingdom, collection societies are categorised into the: (a) Performing Right Society (PRS)[18], (b) Mechanical Copyright Protection Society (MCPS)[19], (c) Phonographic Performance Limited (PPL)[20],  and  (d) Video Performance Limited (VPL)
Each society has its own sphere of operations and though their functions overlap they do not conflict with each other in their job of revenue collection.
The PSR collects and distributes royalties to artists and music rights owners when their music is performed or played in public streamed or broadcast on TV and radio. The MCPS collects royalties on behalf of members when music is reproduced in a mechanical format i.e. where music is reproduced through CDs, audio-visual media or used online or is put in a downloadable state. Where the music broadcast or played from a recording i.e. recorded sounds and performances, the PPL steps in to collect and distribute royalties accruing thereon. Last but not least is the VPL which collects and distributes royalties accruing on music video performances.[21]
A key difference between the PRS & MCPS and the PPL & VPL is that while the PRS & MCPS are geared towards the artiste, the PPL & the VPL mainly concern themselves with the rights of the record companies and labels.[22]

In a similar manner, the United States categorises copyright administration of music into the following, (a) American Society of Composers, Authors, and Publishers (ASCAP), (b) Broadcast Music, Incorporation (BMI) ,(c) Society of European Stage Authors and Composers (SESAC)[23], (d) SoundExchange and  (e) Harry Fox Agency (HFA)
ASCAP, BMI and SESAC are performance rights organisations which collect royalties arising from the broadcast, performance and use of musical works on behalf of artistes, composers and publishers.[24] While ASCAP and BMI are non-profit organisations, SESAC is a for profit organisation.[25] This is unlike under Ghanaian law where collective societies must be companies limited by guarantee, in other words, non-profit organisations.[26]
SoundExchange is a non-profit organisation that exclusively collects digital public performances royalties, this is subject to the Digital Performance Right in Sound Recording Act of 1995, and the Digital Millennium Copyright Act of 1998.[27] SoundExchange collects royalties from music service providers for the right to play a song on a digital platform for non-interactive streaming use; examples of such platforms would be soundcloud, spotify, and apple music.
In the event that the royalties to be collected are mechanical royalties, the Harry Fox Agency is authorised to issue mechanical licenses.[28] The license grants the holder, the right to reproduce and distribute musical works embodied in sound recordings through inter alia CDs, records, tapes, ringtones, permanent digital downloads and interactive streams.[29]

Much like the regime in Ghana, there is only one music rights collective society in China, called the Music Copyright Society of China (MCSC) which administers all rights pertaining to the collection and distribution of royalties in China.[30] The MCSC is state controlled and affiliated with the National Copyright Administration of China.[31]

The authors of this article are of the belief that it is advisable for multiple societies to exist in respect of the different forms of royalties on the performance of music, much like the regime in the United States of America and the United Kingdom. Such a limit on the monopoly enjoyed by GHAMRO would ensure music rights holders are adequately protected by the law. As the saying goes, “the more, the merrier”.

 

5.0    CHALLENGES FACING GHAMRO

Like all human institutions GHAMRO is beset with some challenges which hamper its smooth operation. These challenges have been restated by the management of the organisation at various platforms.

The first challenge the organisation faces is membership, by virtue of its voluntary nature the organisation cannot compel musicians and music rights owners to join. Though the intentions of the organisation are in the right place the organisation has failed to do enough to advertise the organisation and sensitise people on the need to join. In an interview granted to HitzFm[32] Popular reggae/Dancehall artiste Livingstone Etse Satekla aka Stonebwoy echoed these same sentiments when he stated,

“that an institution like GHAMRO, working in the interest of Ghanaian musicians should intensify its awareness creation”.

In an interview granted on Joyfm[33] on 3^rd June, 2020, hip life artiste Kwaw Kese claimed his last encounter with the organisation nearly ended in fisticuffs, he stated,

“I want the world to know that GHAMRO is not doing anything for musicians…the last time I went there they met me with insults,”

This was followed by a statement that some artistes were given as low as GH¢300.00 as royalties for the year.

The next challenge the organisation faces is monetary challenges. The president of GHAMRO Rex Omar[34] stated recently that there was an amount of GH¢2, 113,803.93 belonging to the organisation which could not be accounted for. Aside these funds which could not be found the organisation faced serious challenges in retrieving royalties from persons who used musical works. The association has also been accused of underpaying musicians’ royalties.

Closely linked to the issue of revenue generation, is the fact the organisation lacks the appropriate equipment to monitor the songs played. In an interview on JoyFm on 13^th June, 2020, Abraham Adjartey CEO of the organisation stated that the monitoring system is expensive and capital intensive as such the organisation was using the allocated system. He further prayed for government assistance to acquire this monitoring system.

Despite these challenges the association has chalked some successes within the period of its existence, especially in the areas of royalty distribution. In this era of private public sector co-operation, it is hoped that the association will consider this going forward.

 

6.0    CONCLUSION

A worker must earn his wages, likewise a performer, his due. It goes without saying that a major purpose of copyright, in particular, the system of royalties, is to ensure that the author/owner is sufficiently rewarded for all public performances and which right is exclusive to him.
In light of this, GHAMRO has been created for ease of collection of the royalties due the music right holder. This, GHAMRO does by licensing persons who wish to publicly perform or broadcast/communicate music to the public. It is from these licensing fees that music right owners would be paid. Mr. Benjamin Oduro Arhin Jnr aka Bnoskka[35]puts it this way,

“because artistes cannot directly collect these payments, collective management organizations (CMO) or Performance Right Organizations (PROs) are empowered by law to collect and distribute royalties”[36]

GHAMRO is one of the many ways that Ghana can give back to music right owners and it is hoped that the organisation stands the tests of time.

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FOOTNOTES

***[1] The Authors are associates at Robert Smith Law Group a Boutique Law firm situate in the heart of Accra.

[1] Regulation 2 of LI 1527

[2] Regulation 3 of LI 1527

[3] Regulation 4 of LI 1527

[4] http://www.copyright.gov.gh/about-us/

[5] Section 49 of Act 690

See also Regulation 23 of the Copyright Regulations 2010, LI 1962

[6] https://www.ghanaweb.com/GhanaHomePage/entertainment/GHAMRO-Takes-Over-From-COSGA-228280

[7] https://www.myjoyonline.com/entertainment/ghamro-saga-carlos-sakyi-begs-court-to-vacate-its-injunction/

[8] https://mobile.ghanaweb.com/GhanaHomePage/entertainment/Akosua-Agyapong-mastermind-behind-Ama-Rasta-s-flare-up-at-GHAMRO-Rex-Omar-836209

[9] See https://www.adomonline.com/video-musician-curses-ghamro-over-unpaid-royalties/

[10] Emphasis mine.

[11] Minister is defined in the interpretation section of the Copyright Act 2005 Act 690 as the Minister for Justice

[12] Schedule 4 of LI 1962

[13] Regulation 24(1) of LI 1962

[14] http://ghamro.org/images/pdf/BasicInfo.pdf

[15] JENNINGS V STEPHENS [1936] 1 AER 409 Per Lord Wright, “The true criterion seems to be the character of the audience”

[16] According to Regulation of 36 of LI 1962, any person who intends to perform the work of an author or cause such work to be performed in public must apply for a licence from GHAMRO.

[17] https://www.myjoyonline.com/entertainment/music/akosua-adjepong-rex-omar-clash-on-adom-fm-over-ghamro-royalties/

Last accessed on 27^th August 2020

[18] https://www.soundreef.com/en/blog/music-royalties-in-the-uk-a-quick-guide/

See also https://www.prsformusic.com/what-we-do/prs-and-mcps

Last accessed on 2^nd September 2020

[19] Ibid (fn 19)

[20] https://www.ppluk.com/what-we-do/

Last accessed on 2^nd September 2020

[21] https://www.bemuso.com/musicbiz/musicroyaltycollectionsocieties.html

Last accessed on 2^nd September 2020

[22] Ibid (fn 22)

[23] https://www.sesac.com/#!/our-history

See also ibid (fn

[24] https://www.musicgateway.com/blog/how-to/ascap-vs-bmi-vs-sesac

[25] Ibid (fn 25)

[26] Regulation 23 of LI 1962

[27] These regulations govern collection and distribution of royalties from digital public perfomances.

See Section 2 of the Digital Performance Right in Sound Recording Act of 1995, USA

See also Section 405 of the Digital Millennium Copyright Act o

f 1998, USA

[28] https://www.harryfox.com/#/history

Last assessed on 2^nd September 2020

[29] https://www.harryfox.com/#/faq

Last accessed on 2^nd September 2020

[30] http://en.ncac.gov.cn/copyright/contents/10377/329098.shtml

Last accessed on 3^rd September 2020

[31] https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1209&context=ilr at pages 32 & 33

Last accessed on 3^rd September 2020

[32] https://www.ghanaweb.com/GhanaHomePage/entertainment/GHAMRO-isn-t-attractive-to-me-Stonebwoy-693397 accessed on 14th June 2020.

[33] https://www.myjoyonline.com/entertainment/music/ghamro-is-not-doing-anything-for-musicians-royalties-kwaw-kese-claims/

[34] https://www.modernghana.com/entertainment/59895/ghamro-chases-former-executives-over-missing-cash.html

[35] Mr. Benjamin Oduro Arhin  is a Creative Arts Business & Intellectual Property Consultant

[36] https://www.kasapafmonline.com/2020/01/bnoskka-educates-musiga-on-royalty-payment/

Last accessed on 20^th April 2020

Photo Credit: Google Images

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