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Licensing of Musical Works

The musical industry has developed types of licences in respect of music-related works:

Mechanical Licence

Mechanical license permits a licensee to record, reproduce and distribute musical works in recording media such as records, cassette tapes, CD's, etc.

Synchronization and Videogram Licence

Synchronization license permits a licensee to bundle music together in timed relation with visual images or motion pictures to create a work combining the audio and the visual content. Programmes on TV or films may have part of their scenes supported with music as the background.

Public Performance Licence

Public performance licences permits the licensee to publicly perform the musical composition.

As the music-related works are frequently used in public performance by different people or organisations, this right is very often managed through collective agent. In Hong Kong, such collective agent is CASH. A licensee desiring to publicly perform a song would have to enter into a licence agreement with CASH. Such licensing would require payment of royalty.

New Media Licence

This is a developing area of licensing. The Copyright Ordinance has been built based upon conventional technology. The Internet has offered a new mode of distribution for multimedia productions and has posed as a challenge. Certain leading copyright agent such as America's RIAA has created the webcast licensing framework for 'broadcast' of music over the Internet.

Audio-visual Work

The Copyright Ordinance does not provide a specie of audio-visual work as a type of copyright work. Rather, audio-visual work is classified as 'film'. Film means 'a recording on any medium from which a moving image may by any means be produced'. By the definition, a video clip, no matter how primitive or home-made it is, belongs to a film and is protected by copyright.

The sound-track accompanying a film is to be treated as part of the film for the purposes of the definition of film. The director of the film is the author and hence the first copyright owner of a film.

The licensing of a film is much simpler if the composition does not include other copyright works such as musical recordings. Caution must be taken in respect of a film which may orginate from the adaptation of a literary work such as a novel. Copyright clearance requires the authorisation of the copyright owner of the novel for the production of the fillm.


Musical Work and Sound recordings

The Copyright Ordinance considers the following music-related productions as being copyright works:

· musical works
· sound recordings

The Copyright Ordinance has not given a meaning to musical work. By ordinary construction, it means the music in its written form. It is therefore separate from work having other protections namely recording of the singing performance by the pop-singer which should be classified as sound recording. In typical situation, the author of a song would retain copyright of the work as musical work. Alternatively, he would have his rights transferred to the record company in return of royalty obtained by the licensing agent. On the other hand, record producers and record companies would own the rights to sound recordings. That is achieved by the agreement with the pop-singer.


Music

Music is a very valuable type of multimedia work. When acquiring music-related rights, we must look into the divergent nature of rights surrounding music-related work.

According to the Copyright Ordinance, 'musical work ' means a work consisting of music, exlcusive of any words or action intended to be sung, spoken or performed with the music. Therefore, musical work means the music in its written form and not 'sound' representation.

A song sung by a famous pop-singer such as Andy Lau can be divisively shared among different owners or their agents. Licensing of those rights take forms provided by collective licensing agent such as CASH. If you have to produce a multimedia work using a song as the contnet, you may have to enter into agreement with a number of people such as author of the musical work, author of the lyric, music publisher, performing artist (i.e. pop-singer), record companies, performance rights organisations etc.