The following information is designed to help you avoid the pitfalls of confusing music uses that are free with uses that are subject to copyright and the payment of royalties. We hope it contributes to elucidating a complex issue that triggers many queries.
Use of “copyright-” and “royalty free” music
a) Music belonging to the public domain
When you use music, you use a musical work created by an author, as well as, possibly, a recording of the work and its performance (known as a “master”) made by the music producer of the work.
Pursuant to the Federal Act on Copyright and Related Rights (Copyright Act, CopA), musical works are protected from the moment they are created and for a duration of 70 years after the death of the author (Article 29(3) CopA) or, in the case of works created by more than one author, after the death of the last surviving co-author (Article 30(1)(b) CopA). Recordings and performances are protected for 70 years (Article 39 CopA).
In both cases, once the statutory protection period expires, the works, performances, and recordings become free. In other words, they fall into what is known as the “public domain”. In practice, anybody wanting to use music belonging to the public domain can do so without first having to obtain permission from the relevant rightholders.
b) The rightholders waive their right(s)
The Copyright Act grants authors the exclusive rights to their works (copyrights), performers the exclusive rights to their performances, and producers of music the exclusive rights to their recordings (related rights or neighbouring rights).
Both authors’ rights and neighbouring rights are subdivided into two categories: economic rights (rights of use) and moral rights (rights tied to the person of the rightholder).
By law, the economic rights of the rightholder include the author’s exclusive right to decide whether, when and how their work is used (Article 10 CopA)). The same applies to performers and producers with respect to their performances and recordings respectively (Article 33 et seq. CopA).
In the case of individual rights management, rightholders may waive their right to exercise a right of use and consequently allow their music to be used freely (without claiming any remuneration in exchange or imposing any restrictions on use). The use is then designated as “copyright” and/or “royalty free” subject to the author’s moral rights which belong, according to Swiss law, to the original rightholder (e.g. the right to be recognised as author of the work or the right to alter a work).
In the case of collective rights management (where the rightholder entrusts the management of their economic rights to a collective rights management organisation like SUISA), a use can only be “copyright” and/or “royalty free” if the rightholder excludes the economic right in question (e.g. the broadcasting right, the right to make available online, etc.) from the collective rights management and waives the right to exercise that right. Notwithstanding, the rightholders retain their moral rights.
Use of protected music
a) The music belongs to the repertoire entrusted to a collective rights management organisation
When rightholders decide to entrust the management of their rights to a collective rights management organisation, a contract is concluded. Based on the contract, the rightholder entrusts the management organisation with the management of their rights when their works, performances, and/or recordings are used by third parties in public.
In SUISA’s case, the rightholders transfer their economic rights. Once SUISA holds these rights, it decides on behalf of the rightholder under what terms and conditions the use of the works can be permitted in public.
Following the rules governing collective rights management organisations, the granting of a right of use is generally subject to payment of remuneration for copyright and neighbouring rights in accordance with the tariffs and licences applied by the managing organisations. Accordingly, the use is not “royalty free”.
b) The licence obtained when the music was acquired is not valid
When you buy music on the internet from an online provider, you generally receive a licence. Some licences specify the applicable terms and conditions of use. Sometimes the music acquired can be used freely and without restriction (“free” licence).
A distinction must then be made between the cases where the licensed protected asset (work, performance, or recording) is managed by the rightholders themselves (individual rights management) and the cases where it is managed by a rights management organisation (collective rights management):
- In the case of individual rights management, if the online provider has not acquired all the existing rights to the protected asset from all the rightholders, he cannot grant a licence. He does not hold all the rights he intends to license, and the licence cannot, therefore, be “copyright” and/or “royalty free”. On the contrary, the licence is not valid, and the use is illegal since it infringes certain third-party rights.
In practice, it is complicated for an online provider to acquire all the rights to musical content. There may be many rightholders involved in a single work (author, publisher, sub-publisher, performer, music producer, etc.), and all the parties involved must consent to the “copyright” and/or “royalty free” use. Otherwise, the use is illegal. - In the case of collective rights management, the collective rights management organisations are responsible for granting licences for the performance and reproduction of musical content. In Switzerland, the management of these rights is subject to state regulation, meaning that these rights can only be managed by entities authorised to do so by the regulatory authority (in this case, the Federal Institute of Intellectual Property, IPI). Without such an authorisation, rights management is unlawful, and the manager is liable to a fine (Article 70 CopA). In certain cases, this may apply to the providers of “royalty free” music.
Conclusion
If you wish to buy musical content to use in your audiovisual productions, be careful when you see the designation “copyright” and/or “royalty free” music. Our experience shows that “copyright” and/or “royalty free” music is not always free and that the relevant copyrights are held by SUISA or other collective rights management organisations. In doubt, we advise you to contact the rights management organisations to check if they have rights to assert.
