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Music as a human right

The author’s rights legislation only grants the right to remuneration. It doesn’t say how much. This is up to the negotiating power of the rights owner. It is of course impossible for every single rights owner to oversee the performance of her/his music and collect the monies due from, let’s say, a festival organiser, pub owner or radio station.

To take care of this collecting societies have been formed in most countries. A rights owner can become a member of a collecting society, which then negotiates the amount of money to be paid for different kinds of performances. They also monitor performances and collect the money. The money is then divided among the rights owners, both national and foreign, according to the number of performances of each and everybody’s music.

In some countries the collection and distribution of rights money is done by government agencies. The procedures involved are quite complex. Many things can and actually do go wrong, but so far no better way to collect the rights money has been designed.

MUSIC — A HUMAN RIGHT

Music and the Universal Declaration of Human Rights

Compiled by Karen Hald, Research assistant, The Danish Centre for Human Rights

Like all other human beings, every individual musician is protected by a number of human rights. He or she has the right to freedom of association, freedom of religion, to family and private life, to food, housing and education, etc. — all according to the Universal Declaration of Human Rights.

All human rights are as important for musicians as they are for everyone else. However, two of these rights are of special relevance for musicians: the freedom of expression and the right to participate in cultural life. Together, these two offer a special protection of musicians against arbitrary censorship and persecution.

 

FREEDOM OF EXPRESSION
Music involves an unlimited number of possibilities for human beings to express themselves. Lyrics can bring detailed messages of love, hate, fear, violence, etc.

A melody in itself can communicate joy, hope, sorrow, a dramatic event, a special mood or a sound image of everyday life. All of these different expressions fall under the protection of the freedom of expression in the Universal Declaration of Human Rights Article 19.

The European Court of Human Rights has interpreted artistic freedom of expression in a broad way. In a judgement from 1988 the Court observed, that “Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression”.

For musicians, freedom of expression particularly implies:

  • Freedom to play music in public as well as in private
  • Freedom to give concerts
  • Freedom to release CDs, regardless of which expressions or points of view may be expressed by the lyrics or music itself. Therefore, as a point of departure, no censorship can be imposed or subsequent legal steps be taken against musicians because of what they express in their music.

However, there are exceptions:

  • Propaganda for war is always unlawful, as is advocacy for national, racial or religious hatred.
  • States may also limit freedom of expression if it is necessary for a certain number of other reasons:
  • Respect of the reputations of others (defamation),
  • Protection of national security, public order, or of public health or morals.

In any case such limitations must be prescribed in a national law.

This for instance implies that a government official cannot on his or her own decide to ban certain types of music from radio or television, if no law proscribes so. And the government is not allowed to pass a law on censorship for instance in order to silence certain religious groups or to combat opponent political opinions, because these are not legal grounds on which freedom of expression can be limited.

Individuals can complain about violations of the freedom of expression to several international human rights bodies such as the UN Human Rights Committe, the European Court of Human Rights and the Inter-American Court of Human Rights.

THE UNITED NATIONS INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

THE RIGHT TO PARTICIPATE IN CULTURAL LIFE
Apart from being a means of expression, music is basically a cultural activity. Even though a song or melody may not express any particular attitude or opinion, the mere acces to play music therefore can be regarded as a human right in itself. This is stated in the Universal Declaration of Human Rights, Article 27 about the right freely to participate in the cultural life of the community.

For musicians, the right to participate in cultural life particularly implies:

  • Freedom to perform and produce music
  • Freedom to listen to and enjoy music made by others
  • The right to protection of the interests resulting from one’s own musical production
  • Freedom for ethnic minorities to play the music of their own culture

Unlike the freedom of expression, there are no legal grounds for limiting the right to participate in cultural life. So unless the music contains defamatory lyrics or other expressions which can legally be limited within the scope of the freedom of expression, the right to perform and enjoy music in itself can never legally be prohibited.

On the other hand, the international human rights system offers no courts or committees to consider complaints about violations of the right to participate in cultural life, as is the case for alledged violations of the freedom of expression.The UN has established a Committe for Economic, Social and Cultural Rights to supervise Member States implementation of for example cultural rights, but at present it is not possible for individuals to submit complaints about violations to the Committee.

The supervision of cultural rights also falls under the mandate of UNESCO. One of the most important functions of UNESCO is to prepare standard-setting declarations, recommendations and conventions. Here, UNESCO has for example expressed an understanding of culture to comprise not only the culture of an Èlite, but also films, mass media and popular music and furthermore set up guidelines for how artists should be respected in society. UNESCO also runs a special programme on music to encourage attitudes which promote the respect for cultural diversity and stimulate tolerance, solidarity, cooperation, dialogue, and reconciliation. The International Music Council which is a non-governmental organisation, functions as an advisory body to UNESCO on musical matters.

 

WHAT ARE HUMAN RIGHTS?
Human rights are often part of a country’s national Constitution. For instance, a Bill of Rights has been part of the United States’ Constitution since 1791.

But what happens if a State does not respect its’ own Constitution and the nice words remain empty phrases on paper? In such cases it is a good idea to look into the international human rights obligations that many nations have taken upon themselves.

The basic international human rights were first established on a global scale by the UN in the Universal Declaration of Human Rights in 1948. This document, however, holds no possibilities for the international community to take action against Member States who do not respect the Declaration. In 1966 the UN therefore issued two international Covenants to establish means of international reaction against human rights violations: the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights.

In relation to civil and political rights, a special Human Rights Committee has the power to consider requests of concrete violations from individuals who claim to be victims. The mandate of the corresponding Committee for Economic, Social and Cultural Right is limited to supervising and entering into dialogue with Member States and holds at present no possibility for individual complaints.

Apart from the two Covenants, UN Member States have over times agreed upon a number of so-called thematic documents on human rights for certain groups of people: the Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of Discrimination Against Women (1979), the Convention Against Torture (1984), and the Convention on the Rights of the Child (1989). These Conventions elaborate on many of the same rights as are stated in the Universal Declaration.

The same is the case for a number of regional documents on human rights. European and American countries have created their own human rights systems with regional human rights courts. African countries have agreed upon a human rights charter with a Commission to promote human rights, but so far no court has been established. Finally, Asiatic countries and the Arabic world have each their charter on human rights in the pipeline.

Before a person can complain about an alleged violation of his or her human rights to an international human rights body, the country in question must have signed and ratified documents on the specific human right. Most countries have signed the two UN Covenants, but many countries still fail to transform the paper promises into national law. However, if a country in this way tries to postpone the consequences of its signature, it should be possible to make complaints even if a signed document is not yet ratified.

Information on which countries have signed and ratified UN documents is most easily found at the UN High Commissioner for Human Rights website: www.unhchr.ch/tbs/doc.nsf

 

A MINIGUIDE TO COMPOSER’S AND MUSICIAN’S RIGHTS
Compiled by Dr. Krister Malm, General Director of the Swedish National Collections of Music and board member of Freemuse

When a piece of music is played in public the composer and writer of lyrics are in most cases entitled to remuneration according to the rules of the author’s rights legislation in the country concerned. This goes for both live performances at concerts, dances etc. and recorded performances in radio, TV, clubs etc. There are also times when the performing musicians on the record are entitled to remuneration.

The legislation concerning author’s rights, in some countries called copyright, pertains to composers and writers of lyrics, and musician’s rights differs from country to country. A few countries do not even have such legislation. Existing legislation is usually based on international conventions and thus principally similar. The rules are, however, quite complicated. It is easy to get confused.

 

AUTHOR’S RIGHTS
Author’s rights are part of the larger domain of Intellectual Property Rights. Author’s rights comprise economic rights and moral rights. The first is the right to remuneration when the music is performed. Besides the composer and lyricist, others also have the right to remuneration. These are arrangers who adapt the music for a certain purpose, translators of lyrics as well as publishers. Usually when the composer or lyricist is also a recording artist she/he is asked to sign away the publishing rights to the publishing company owned by the recording company.

The moral rights are the right of the composer and lyricist to determine in what ways her/his music may or may not be performed, e.g. how it may be adapted.

The main convention regulating author’s rights/copyright legislation is the Berne Convention administered by the World Intellectual Property Organisation (WIPO).

Countries that have signed the Berne Convention have agreed on treating the performance of music by authors from any other convention country in the same way as performance of music by nationals. This means that if a piece of music by e.g. a Danish or Indian composer is performed in Sweden, this composer has the same right to remuneration as a Swedish composer.

Similar to author’s rights is mechanical rights. This is the right of composers/lyrics writers to remuneration when their music is published on record or some similar medium. This remuneration is usually related to the number of records published.

National legislation varies, but author’s rights usually expire 50 or 70 years after the death of the author. Mechanical rights usually expire 25 or 50 years after the first release date of a record. Music that is older or does not have a known composer or lyricist or arranger is not protected by author’s rights legislation.

The author’s rights legislation only grants the right to remuneration. It doesn’t say how much. This is up to the negotiating power of the rights owner. It is of course impossible for every single rights owner to oversee the performance of her/his music and collect the monies due from, let’s say, a festival organiser, pub owner or radio station.

To take care of this collecting societies have been formed in most countries. A rights owner can become a member of a collecting society, which then negotiates the amount of money to be paid for different kinds of performances. They also monitor performances and collect the money. The money is then divided among the rights owners, both national and foreign, according to the number of performances of each and everybody’s music.

In some countries the collection and distribution of rights money is done by government agencies. The procedures involved are quite complex. Many things can and actually do go wrong, but so far no better way to collect the rights money has been designed.

 

MUSICIAN’S RIGHTS
Musicians usually get paid directly by the employer once and for all or according to some kind of royalty agreement. These deals are covered by general legislation concerning agreements.

In some countries that have signed the Rome Convention there is, however, a musician’s rights legislation. This gives recording musicians the right to remuneration when their recordings are played in public, i.e., on radio, tv or at a disco, in a department store, etc.

In order to collect this money the recording musicians in the countries concerned have formed collecting societies. In some countries the organisation of the record companies, usually the national branch of IFPI (International Federation of the Phonographic Industry), collects the money for the recording artists.

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