Save our songs

When we think of public performance of music, what comes to our mind is live concerts by artists. Live concerts are an important contributor to an artist’s income and goodwill. However, public performance of music is not just live concerts.

When an artist’s song is played on radio programmes and in cafes, hotels and restaurants, that also constitutes public performance of music. Artists and record labels have a right to monetize and get royalties when their music is played in these establishments.

This is a global practice, and music owners earn substantial income through royalties from this. However, in Pakistan, music owners are unable to benefit from this and are deprived of this potential income.

One of the means a music owner can ensure that it earns money from public performance is through agreements. This, however, can be done only on a limited scale. For instance, a music owner in Islamabad cannot possibly know how many establishments in the country are playing his music.

A performing rights society (PRS) is responsible for ensuring that no establishment is playing music in Pakistan without providing royalties to the music owner. A PRS aids copyright holders in receiving compensation for the use of their music by collecting royalties relating to public performance in various establishments.

Under the Copyright Ordinance, 1962 of Pakistan, a PRS is authorized to operate in Pakistan and to grant licences, collect fees and distribute royalties for the public performance of music.

In Pakistan, the Collective Organization for Music Rights in Pakistan (Guarantee) Limited (COMP) is a government-sanctioned PRS. It has broad functions, and this includes granting non-exclusive licences to end users, collecting royalties, distributing royalties and entering into arrangements with other PRSs, both local and foreign.

Business owners must apply to COMP so that they can legally play the music of music owners during business hours. Interestingly, music streaming services are aware of the distinction between playing music for personal and non-commercial use. For instance, Spotify, in its ‘Terms of Use’, states that the songs which are in the application can only be used for personal and non-commercial use.

Unfortunately, COMP for all practical purposes is dysfunctional in Pakistan as complained by many artists. Music owners are thus deprived of earning significant incomes when establishments play their music for entertainment purposes.

We can take inspiration from how the music industry is regulated in other jurisdictions. In this regard, an important judgment was recently passed by the Bombay High Court (BHC).

Novex Communications Pvt Ltd and Phonographic Performance Ltd (PPL), filed a case against a hotel seeking that the hotel be permanently restrained from playing music without having obtained public performance licences. The court noted that Novex and PPL had been assigned – as duly authorized agents – the administration of musical works which belonged to copyright holders although they were not registered as a PRS.

The defendant argued that since Novex and PPL had not been registered as a PRS, they could not bring the suit. The court noted that despite the two companies not being registered as PRS, they could still bring claims to restrain the defendant from playing music in public without authorization since they had been partially assigned the copyrights under Agreements. This is an important judgment passed by the BHC as it rules that musical work cannot be played in public without the music owner’s consent.

Today, the music industry in Pakistan is seeing a resurgence. More people are now willing to pursue music as a career since there are better earning opportunities due to music streaming applications, increased use of social media and improved environment for live concerts.

However, it is unfortunate that radio stations, hotels, cafes and restaurants assume that music is free and can be played without having to provide royalties to music owners.

In this concern, a PRS can play an important role in the management of musical works across the country. It is practically impossible for music owners to ensure that their music is being played in various places with his authorization and consent.

However, despite the lack of a functioning PRS in Pakistan, music owners can still claim that their musical work is only played with their authorization and consent. This is important in ensuring that copyrights of music owners are given due regard which in turn strengthens the music ecosystem of Pakistan.

The writer is the head of legal at Freebird Music Entertainment.