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.
Rule 11 of the Rules and Regulations of GHAMRO sets out the details of how Article 7(g) can be invoked. Rule 11 provides that:-
a) that the member serves a written notice ("the Notice") on the secretary of GHAMRO at the registered office of GHAMRO in a form prescribed by GHAMRO from time to time, not less than two months prior to the event or events in respect of which the licence is required. The Notice shall include the following:-
(i) the date or dates and approximate time or times on which the *Event (or series of consecutive Events) specified in the Notice is or are to take place;
(ii) the place or places within the Republic of Ghana at which the Event (or series of consecutive Events) specified in the Notice is or are to take place;
(iii) the particular Work or Works in respect of which the Member giving the Notice require GHAMRO to grant to that Member a non-exclusive licence for the performance of the Work or Works in public;
(iv) the name or names of the person or persons who will perform the Work or Works at the Event or Events;
(v) evidence to the satisfaction of GHAMRO that all the Works to be performed at the Event or Events will be subject to a licence granted pursuant to this Rule.
(b) that the Member giving the Notice shall furnish to the secretary of GHAMRO a written consent and release (in a form prescribed by GHAMRO from time to time) from all Persons interested in the Performing Right in the Work or Works specified in the Notice consenting to the proposed performance and releasing GHAMRO from any obligation to collect any royalty or other sums in respect of the performance of such Work or Works at the Event or Events in respect of the Performing Rights administered by GHAMRO for such persons.
For the purposes of this Rule 11:-
*"Event" means one day's performance of a Work or Works in public at a venue in the Republic of Ghana."
Licensing Procedures Article 7(f) Article 7(f)
Under this procedure, GHAMRO may, on request within 21 days of the commencement of the show, return to members the whole or any part of the performing right in any of their works to enable members, copyright owners or authorized third parties to license certain performances themselves in particular circumstances, examples of which are set out below. Once a member has made a request to GHAMRO and the terms are agreed, the procedure is that GHAMRO gives formal notice to the member or members concerned, pursuant to Article 7(f) of its Articles of Association, that it "declines to exercise" the relevant part of the performing right in the works in question. Additionally, it is required that the royalty rate charged by the member will not be lower than the appropriate GHAMRO tariff rate, and that an exclusive licence is granted, in a defined context, for the performances which are the subject of the notice.
a) Compilation Shows
In recent years it has become increasingly common for musical works which were not originally written for the theatre to be used in theatrical productions of a type which have become known as "compilation shows". Such fixed-format, title shows often depict the life or career of a particular composer or performer, and feature many songs or other well-known musical works which were written or performed by the character concerned. Owners of the copyright in songs and other works of American origin often claim that this use of their works constitutes a "dramatic" performance falling outside the scope of the mandate given to the US society to which they belong, and that in consequence GHAMRO has no authority to licence such uses; however, in some cases GHAMRO can acquire these rights through the Ghana sub-publisher. As regards works by GHAMRO author members, GHAMRO does control such uses, and therefore, performances of these works in compilation shows are licensed by GHAMRO, or by the member in accordance with the 7(f) procedure as explained above.
b) Interpolated Music in Plays
"Interpolated music" is music not specially written for a theatrical production, which is performed by, or intended to be audible to, a character or characters in the production. The performance of pre-existing musical works interpolated in plays, whether or not such works are excerpts from dramatico-musical works, can be licensed under the 7(f) procedure.