GHAMRO's Methods of Licensing Public Performance
An explanation of GHAMRO's public performance licenses and how the different levels of royalties are assessed
Members' non exclusive licensing procedures Article 7(g) and Rule 11 Article 7(f)
Section D - Licensing
GHAMRO's Methods of Licensing Public Performance
1 Public Performance
The Copyright Act defines what constitutes a performance in public. The general rule which has emerged from decisions by the Courts over the years, though, is that any performance which takes place outside the domestic or quasi-domestic circle is 'public' for this purpose regardless of the nature of the entertainment or the kind of premises where the performance takes place, and irrespective of whether a charge for admission is made. For example, performances in clubs at which attendance is restricted to members, and performances in factories, have been held to be public performances for the purpose of the Act.
Through assignments from its own members and through affiliation agreements with foreign societies, GHAMRO owns or controls the public performance right in most of the copyright music played in Ghana. Its licence is therefore necessary for practically every public performance of copyright music in this country.
GHAMRO's policy is to grant a licence to any prospective music user provided only that the person concerned is prepared to enter into the standard licence contract and pay the appropriate tariff royalty. The onus lies on a music user to obtain the permission of the copyright owner before public performances begin. Since GHAMRO controls the performing right in the musical works vested in it by copyright owners, it maintains a nation-wide staff in the field to explain this obligation to unlicensed users of copyright music and to issue licences to them. Licences are also issued by the GHAMRO Head Office.
The tendency of music users not to seek GHAMRO licence until approached by its agents means that the cost of issuing new licences is unjustifiably high. For this reason, the royalty for the first year of a licence is 30% - 50% more than the continuing charge, unless the music user asks for a licence before being approached by GHAMRO.
GHAMRO is reluctant to litigate with music users who do not comply with the law and it takes all reasonable steps to ensure that music users are fully aware of their obligations. However, if a music user refuses to enter into a licence after his obligations have been fully explained, proceedings are begun in the Circuit Court. These proceedings claim an injunction preventing the performance of any of GHAMRO's copyright repertoire in public until a licence is obtained, and GHAMRO also claims damages and costs. Where the infringement is flagrant - as is often the case - the amount of damages can be high.
2 GHAMRO's Licences
GHAMRO licences are in the form of contracts which run from year to year until cancelled by either party. They are blanket licences, authorizing the public performance of any of the millions of works which GHAMRO controls on behalf of both of its members and of the members of its affiliated societies throughout the world. The royalties payable under GHAMRO licences vary as the nature or extent of music usage charges in the premises concerned. The general nature of the licence contract is that it authorizes the licensee to perform, or to cause or authorize the performance of GHAMRO's copyright repertoire, in consideration for which the licensee undertakes to pay the appropriate royalty.
Naturally, it does not oblige the performance of all or any part of GHAMRO's repertoire. The extent to which that repertoire is performed, within the terms of the licence, is the licensee's choice entirely. It would obviously be quite impracticable for GHAMRO to monitor every performance given by each of its licensees, just as it would be intolerable for most licensees to keep a precise check on the nature and extent of all performances in their premises. Therefore, GHAMRO must be told immediately of any reduction of music usage if it is to agree to a corresponding reduction in the royalty. Similarly, increased music usage must be promptly notified.
GHAMRO's licences cover both 'live' performances and performances by mechanical means, e.g. juke boxes, radio and television, video, record, CD and tape players, and so on.
Licences are in issue for numerous categories of premises, including cinemas, clubs, concert halls, night clubs, church halls, restaurants, shops, factories, universities, aircrafts, sports stadia, theatres and many others. Nearly 30,000 establishments are covered by the GHAMRO licence in Ghana.
In certain cases, permits are issued for the use of GHAMRO's repertoire, or sometimes for specified works, either at a single performance or at a short series of performances at premises not licensed for those occasions. If a copyright musical work is performed in public without the copyright owner's consent then the copyright owner has a claim against not only the promoter of the performance but also the proprietor of the premises (unless he can show that he had no reason to believe that infringement would take place) and the performers.
It is not GHAMRO policy to grant licences to performers (other than to brass and military bands as such, for performances in public places). GHAMRO normally issues its licence to the proprietor of the hall or other premises concerned, so relieving the promoter of a musical entertainment there from having to apply for a special permit. Promoters should make a point, when hiring premises for a function involving music, of ensuring that the proprietor holds a GHAMRO licence which will cover the occasion.
Where a chain of hotels or stores or any other business operating multiple premises needs a licence for five or more of those premises, GHAMRO normally issues a single licence to the Head Office of the company concerned. Royalties are then assessed annually, depending on music usage and the number of premises involved, without the need to issue and cancel licences when new premises are acquire or opened and others closed or sold off.
Since the licence is a contract it follows that the payment of royalties is an obligation enforceable by law. Those who remain in default after due reminders are sued in the appropriate courts as ordinary commercial debtors.
3 The Assessment and Payment of Royalties
Royalty charges payable by licensees are calculated under a series of carefully devised tariffs which normally take account of the type and frequency of the performances, the nature of the venue and other relevant circumstances. Many tariffs have been settled by negotiation with national associations representing the classes of music user to whom they apply. As explained earlier, GHAMRO's charges for the first year of a licence are 50% higher than the continuing royalty unless the licensee sought that licence before the relevant performances began.
GHAMRO's principal tariffs are adjusted annually for inflation. The annual adjustment is by reference to the Consumer Price Index.
Many GHAMRO licensees pay a flat annual charge which does not need to be adjusted from year to year, other than for inflation. These include most premises licensed only for background music. However, where the royalties are calculated as a percentage of admission receipts, or the number of employees (as in the case of factories and offices) or on a substantial, and fluctuating, number of dances or other events with music, then in fairness to both GHAMRO and the music user the licensee may be asked to complete an annual return of the music usage so that the correct charge can be established.
Royalties are payable annually in advance. A licensee whose royalty is calculated and adjusted annually therefore pays, in the first year, an amount based on an estimate of the licensee's music usage during the coming year. At the end of the year this payment is adjusted to the actual figure by reference to the return sent in by him. For the ensuing year the licensee pays the equivalent of the royalty calculated for the previous year that payment in turn is adjusted twelve months later when the actual details can be ascertained.
4 GHAMRO's tariffs for Public Performance
Details of the scope and cost of GHAMRO tariffs may be obtained from GHAMRO’s Licensing team. Tariffs contain up-to-date information on the actual charges levied and many are subject to periodic renegotiation with music users and trade associations. Most tariffs provide for automatic increases in line with the cost of living.
Licensing Procedures Article 7(g) Rule 11 Article 7(g)
Any member may, subject to compliance by the member with the Rules of the Organization, require the company to grant to the member a non-exclusive licence in respect of any particular work or works, the performing right in which has been assigned to the company by such member as the composer, author, publisher or proprietor thereof of the performance of such work or works in public at any particular event or series of consecutive events.
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