Licensing for a copyrighted work - we need clarity!

Blog Post | William Kadi (Chevening Scholar 2022/2023, University of Aberdeen, UK)

Introduction.

The creative people in our communities (writers, designers, painters, musicians, photographers, and videographers) know very little about the Copyright Act (the Act). Some of them have no clue that the Act exists. Conduct a random street quiz in Honiara and prove this statement wrong!

That brought us to our first issue – lack of awareness about the law.

As a summary, the Act does exist however outdated some aspects are. It provides a legal framework for the protection of copyright work in Solomon Islands. The Registrar General’s Office (RGO) oversees certain important responsibilities designated by the Act. As the responsible government agency, the RGO carries out the functions designated by the Act for the purposes of registering copyright work. Therefore, the RGO performs the role of the Registrar of Copyright prescribed under the Act, together with other roles and responsibilities it has, being provided by other Acts of Parliament.

What does it mean for the copyright owner if his work is registered with the RGO?

Through registration, the person identified as the copyright owner(s) holds all the copyright to a particular work of art – whether it be music, a painting, a novel, a photograph, or a design – including architecture designs. The registration of a copyright work is prima facie evidence of ownership and can be used in any legal proceedings or disputes relating to such registered work. For a claim of copyright infringement, the owner of the copyright work can rely on the registration to claim compensation or to prove ownership.

What is copyright infringement?

Copyright infringement is where a person does any of the following actions on a copyright work:

• Reproduce the work in any material form.
• Publish the work.
• Broadcast the work.
• Cause the work to be transmitted in a re-diffusion system (broadcasting or rebroadcasting a radio or television program).
• Make an adaptation of the work.
• Perform the work in public or permit a place of public entertainment to be used for public performance of the work.
• Sells or lets for hire any copyrighted work.
• Offers or expose for sale or exhibit any article in public.

without the license or permission of the owner. The above list is not exhaustive.

What license does the owner of a copyright work require to have then?

In general, under the Act it mentions an “exclusive license”. That license must be made in writing and signed by or on behalf of a copyright owner (or prospective owner if the work is not yet complete) with the licensee, authorizing the licensee to exercise all the rights which only the copyright owner has. In the absence of a license, an assignment of the copyright work signed by the copyright owner and the assignee is adequate and equivalent to the effect of an exclusive license.

In everyday language, the exclusive license simply means an agreement between the copyright owner and a licensee (any person who has the capacity to oversee and manage the rights that subsist automatically to a work). For example, a music artist and a producer who jointly share as copyright owners a song, signs an agreement with a recording company or licenses the rights of the song to a performer’s rights association or a publishing company. Such an agreement describes the extent of the rights transferred, and in the Act, it was referred to as the exclusive license. A recording company or performers rights association or a publishing company is referred to as the licensee, and the copyright owner in such a case is referred to as the licensor.

Under the Act, an exclusive license holder can sue for copyright infringement on behalf of the copyright owner. In an instance where the copyright owner does not enter into such licensing arrangements, he or she can independently sue for copyright infringement.

Clarification of the term ‘license’ as used under the Act.

The word license is used in two different contexts under the Act:

• It refers to the license between the copyright owner and a licensee to transfer and permit the licensee to exercise the rights which belong to the copyright owner (reproduce the work, publish, broadcast, make an adaptation, performance of work etc.).
• It also refers to a license which would allow the operation of a radio station or a TV station to broadcast copyrighted works, especially musical works, and television programs (visual works). This license (broadcasting license) is different from the license between the copyright owner and the licensee as described in (i) above. The broadcasting license for radio and TV are regulated separately under the Broadcasting Act (in the case of SIBC), Television Act and Telecommunications Act for TV and other radio stations licensed to operate under the terms issued by the Telecommunications Commission.

Being granted a license to broadcast does not guarantee a radio or television station to broadcast a copyrighted work. The license to broadcast is a statutory permit to operate as a business for broadcasting services. It is time copyright work owners and exclusive license holders such as record labels or publishing companies understand the difference between a broadcasting license and the exclusive license that is purposely intended to protect a copyrighted work from infringement practices. Broadcasting license is for a radio station or TV station to be given permission for the right to use radio frequencies and provide telecommunication services, it is in no way a license to be able to freely broadcast any copyrighted work without the permission of the copyright owner or the exclusive license holder of a copyrighted work.

Conclusion.

With the above discussions on the Copyright Act and covering a bit of other relevant Acts, it is clear that:

• Copyright work can be registered with the RGO.
• An exclusive license is a written document (agreement) between the copyright owner and the person responsible for acting on behalf of the copyright owner.
• A copyright owner or licensee can sue for copyright infringement.
• Licensed broadcasters (TV and radio stations) obtain their broadcasting license from the Telecommunications Commission.
• The Telecommunications Commission is a statutory body established by law to regulate broadcasting licenses with its other functions.

There are other components to the law of copyright which one needs to be familiar with to understand the whole concept and how it works. These other components relate to the registration process of copyright work with the RGO, understanding defense to copyright infringement, exceptions, bringing legal proceedings for copyright infringement, and other matters. These could be discussed in further detail as a follow-up.

Disclaimer: The views and opinions expressed in this document are solely by the author and for awareness of the subject matter discussed. This is not legal advice, and the author does not hold any responsibility or liability for a loss or injury suffered because of your interpretation of this document. Please seek independent legal advice or do your own research to further your knowledge on these subjects.