The modern copyright system owes a lot to collective copyright management. Intellectual property is all about enforcement, but it tends to be expensive and time-consuming endeavour. Collecting agencies offer a system by which copyright enforcement is allocated to a society which represents its associates. When they work as intended, they are a powerful tool that favour creators. But when then malfunction, they do so in spectacular fashion. Take SGAE in Spain, which has been accused of corruption and embezzlement of up to €400 million EUR in funds supposed to go to musicians and film-makers.
Now sit around and listen, if you may, the curious case of the Costa Rican ACAM (Asociación de Compositores y Autores Musicales ). This is your typical collective copyright management society, it gathers national artists and collects royalties from the usual channels, such as radio, commercial establishments, and live performances (chivos, as they’re popularly known here). ACAM is part of an international network of collecting agencies, so it can collect money from artists and then send it to their international associates, who will then distribute them to the composers and musicians in other parts of the world. So far so good.
However, performance rights are a tricky part of copyright enforcement. We tend to think of copyright as a monolithic right, but nothing is further from the truth. Singer-songwriters are easy, they write, compose and perform their own creations, so copyright management in those cases is also less complicated because there is only one owner. But potentially, any given song has several copyright owners, the composer, the lyricist, the performer, the producer, and let’s not even go into other areas such as sound recordings. This is where rights can get Byzantine rather quickly, and it is one of the reasons why music licensing in general is a very specialised area of the law.
I was reminded of this complexity when I read that a concert in Costa Rica by the famous Mexican singer José José is in danger of being cancelled because of copyright issues. ACAM has requested to the authorities that they should not allow the concert to go ahead because the organisers have not paid royalties to the society. Yes, you heard correctly, ACAM argues that a singer cannot perform his own songs because they must pay copyright fees to the Costa Rican collecting society. They base their legal argument on article 50 of the Costa Rican copyright law (Ley 6683), which reads (my translation):
“ARTICLE 50 .- Authorities shall not allow public performances or hearings without the user displaying the program in advance, indicating the works to be performed and the names of the authors. Also, it must display the receipt attesting payment of the remuneration of copyright holders where applicable. If the show is a reproduction of phonograms, the program must also contain the names of the performers.
Where appropriate, the user shall also produce the receipts for related rights.”
The article is proportionate and consistent with international practice with regards to performance rights. However, ACAM seems to be asking something more than the law requires. The law simply states that artists must show receipt to copyright owners “where applicable”. My own thinking of the reason behind this is that it applies to artists performing covers. But what about an artist who performs his own songs? Must the organisers pay royalties as well? This is not only blatantly unfair, but reeks of a copyright racket.
The only reason I can think of for this behaviour is if José José didn’t compose his own songs and the money collected by ACAM would eventually make its way to the composer, but I would be very surprised if there was not an agreement allowing him to perform these songs. Moreover, ACAM’s own FAQs appear to be rather confusing in this respect. Answering the question “Where does the money collected go?”, they answer:
“The money goes to the income of each author, based on the use made of his work in different ways. Of the total raised, up to 30% is left as an administrative expense to SGAE and 7% goes to fund social and cultural solidarity.”
Wait a second… SGAE? (insert multiple exclamation marks). I can only see two reasons for the mention of SGAE here, either it is the international representative for ACAM, or whoever wrote the FAQ simply lifted the entry from SGAE’s own FAQ and forgot to replace the name of the collecting agency. Either explanation does not look good, to put it mildly.
I believe in collecting management. Artists have a right to earn a living, and these are one manner of organisation which makes it easier to collect money around the world. But irrational money-grabbing like the example cited above does not help the cause of legitimate copyright owners, and when their actions threaten an event that benefits a legendary figure of Latin American music and his loyal fans, one has to wonder who really profits from these practices. Copyright owners have to improve their image, this does not seem to be the best way of doing it.
Update: ACAM continues to state that it requires payment in advance before the concert takes place, while the organisers are saying that they will make the payment afterwards. The news article in La Nación doesn’t ask the most important question here, is ACAM legitimised to ask for money in this case?
Update 2: After making a big show of force, ACAM allowed the concert to go ahead. I still do not think that the fundamental question has been answered here.