Lawmakers kick Jamaican musicians to the curb
Let's Talk ReggaeSunday, November 21, 2021
with Evon Mullings
Jamaican artistes and musicians have been forced to endure a huge gap in their ability to earn certain royalties, thanks to an extended delay by the Government in putting the legal provisions in place to make it possible.
The music industry in Jamaica, and the world over, involves several layers of practitioners who actively and — or passively — contribute to the music we all enjoy daily, whether in live format or via the recorded versions. Several categories of these contributors are given legal protection within the system of music rights internationally, for their role and involvement in the creation of music. Music performers is one such category and is includes vocalists (artistes) and musicians (players of instruments).
There is, however, a set of provisions to be made in the Jamaican copyright laws — which the Government is obligated to do, having signed on to International Copyright Treaties designed to protect performers. Those legal provisions, however, have been stuck at the Attorney General's Chambers since 2016.
Artistes and musicians are part of a wider group of contributors to the music creation process who are recognised for their roles and given legal protection over their musical contributions. Other recognised categories of contributors who are entitled to legal protection and different forms of royalties are songwriters, composers, and record producers. The overall scope and strength of rights of performers have however historically lagged behind those of other contributors and rights holders. It is for this reason that, at the international level, steps were taken, over the last several decades, to create a more balanced set of rights in favour of performers.
Despite these active steps — including adoption into the copyright laws of most countries to increase the legal protection given to performers for better control over their rights in both live and recorded music — Jamaica has failed to take similar steps to protect its own artistes and musicians.
In legal terms, some would say the failure has been egregious, as that failure has deprived tens of thousands of Jamaican performers from being able to earn airplay and public performance royalties in Jamaica. It has also resulted in Jamaica Music Society (JAMMS), which is the Jamaican performance rights organisation, not being able to enter into reciprocal arrangements with similar bodies in some major music markets such as the USA. The result is that millions of dollars due Jamaican performers in some foreign markets cannot be collected by JAMMS on behalf of its Jamaican performer members.
Performance rights organisations globally typically operate on a reciprocal basis. This means, in collecting performance royalties from the USA for its performer members, JAMMS would be required to also collect royalties in Jamaica and pass on to its USA counterpart for its members' music that is played in Jamaica. If Jamaican copyright law does not allow performers to earn performance royalties in Jamaica, then JAMMS cannot carry out its licensing and royalty collections in Jamaica on behalf of performers. As a result, the inflow of millions of dollars from markets such as the USA is jeopardised since a real exchange cannot take place. This is a huge gap in the potential earnings of Jamaican performers as the USA market remains one of the biggest for our music.
What is the cause of the royalties gap for Jamaican performers?
In recognising the need for increased protection for performers, a number of international treaties relating to copyright and related rights would have come into force, over time, by way of countries signing those treaties. Being a party to such treaties, each country gives an undertaking to take on an obligation to update its copyright laws to reflect the protections and benefits being granted to performers. Jamaica is a signatory to the various treaties and conventions, concerning the rights of performers and other rights holders.
The most recent and relevant of such treaties is the WIPO Phonograms and Performances Treaty (WPPT) which came into force in 2002. The treaty grants performers a number of exclusive rights, as well as provisions for remuneration rights, especially for the digital era, whenever there is broadcasting or public playing of music which contains their performances.
Although Jamaica is a signatory to the treaty, and is obligated to update its copyright laws to give performers the various rights, it has failed to do so. This is despite the fact Jamaica actually updated The Copyright Act in 2015 to address other outstanding matters.
By failing to update The Copyright Act with the provisions for performers, the Jamaican Government has not only failed the music industry, but it has placed itself in contravention of the 2002 WPPT to which it is a signatory.
Successive government administrations have failed to address the matter meaningfully. Although some of the provisions to give performers certain rights were included in the copyright law in 2015 when the legislation was last updated, the very crucial provisions concerning the ability of performers to earn performance royalties (broadcasting and public performances royalties) were excluded.
Under The Copyright (Amendment) Act of 2015 a limited set of performers rights were incorporated into the law, which broadly implemented Articles 7 – 9 of the 2002 WPPT. However, Articles 10 (right of making available) and 15 (right of equitable remuneration for broadcasting and communication to the public) of the WPPT were not included in the amendment Act, even though Jamaica is obligated to also include those provisions into the copyright law. There is, therefore, presently no express right of equitable remuneration for performers.
Since that time there has been a continuous push by JAMMS for the provisions to be, once again, brought back for inclusion in the copyright laws. That effort has borne fruit, but only partially. The steps to amend the copyright legislation have stalled. Since 2016 the provisions for the performers' rights have sat at the Attorney General's Chambers without any movement.
Thousands of Jamaican performers will continue to be deprived of their performance royalties income until the amendments are made. Despite the reasonable earnings of some performers from touring and live performances, the vast majority of performers have to rely on other sources of income to survive. Performance royalties from the playing of their music by way of radio, TV, cable, and businesses — such as clubs, bars hotels and others — help to supplement their often meagre income. For many, their music royalties eventually serve as a form pension, and so depriving performers of this source of royalty serves to impoverish many, especially in their later years.
Having signed the WPPT in 2002, Jamaica has failed to do right by its performers for the past 19 years, while their colleagues right across the world, including Caribbean countries such as Barbados and Trinidad and Tobago, have long updated their copyright laws and granted performers the remuneration rights due to them.
The Government of Jamaica, by way of the attorney general, needs to need act immediately to remedy this grave injustice and grave imbalance that our artistes and musicians face. The attorney general needs to conduct an urgent review and approval of the draft Cabinet submission made by Jamaica Intellectual Property Office (JIPO) and the Ministry of Commerce, which was prepared to amend The Copyright Act to strengthen performers' rights.
Evon Mullings is a music executive with a background in economics. He is the general manager, since commencement in 2007, of Jamaica Music Society (JAMMS), which is the national rights management organisation established to administer rights of producers and performers.