It is quite common to see different music performers “busking”- performing in a public space like ferry piers and on Sai Yeung Choi Street in Mong Kok, often for gratuities in Hong Kong. However, not many are aware of potential copyright issues arising from performing popular songs by music buskers or any member of public in public places and this article looks into this aspect.

What kinds of copyright works are in a song?

Under the Copyright Ordinance (Cap. 528) (the “Ordinance”), copyright subsists automatically at the time of creation and belongs to the relevant creators in nine categories of works, namely literary works, musical works, dramatic works, artistic works, sound recordings, films, broadcasts, cable programmes and typographical arrangement of published edition. A piece of music or a song usually incorporates several underlying copyright works with different copyright owners. For example: -

1.        the melody termed as a musical work, the copyright of which may be held by its composer;

2.        the lyrics termed as a literary work, the copyright of which may be held by its lyricist; and

3.        the sound recording itself, whether in the format of a CD or a digital file, the copyright of which may be held by its producer, e.g. its record company.

Sections 17 and 18 of the Ordinance set out the duration of copyright protection of musical and literary works as well as sound recordings. The former including melody and lyrics of a song last for the life span of the author plus 50 years and the latter expires at the end of the period of 50 years from its making or releasing to public.

During the protected period, copyright owners of a piece of music or a song have the exclusive right regarding the performance, playing or showing of the copyright works in public pursuant to section 22 of the Ordinance.

Unless permissions are granted by the copyright owners or their agents or the activity in question is an act expressly exempted by law, the performing, playing or showing of copyright work in public constitutes an act of infringement under section 27 of the Ordinance.  

How to determine “performance in public”?

Performance includes any mode of visual or acoustic performance, such as presentation by means of a sound recording, film, broadcast or cable programme. The concept “in public” is clarified by court’s rulings. In Duck v Bates (1884) 13 Q. B. D. 843, “public” means all that is not private and domestic, this covers places where members of the public or a particular class of public have or are permitted to have access, e.g. streets, subways, footbridges lobbies of a building, shopping malls, restaurants, premises of a club etc.

“Performance in public” therefore embraces presenting a copyright work in visual or acoustic way in a non-domestic place.  There are case laws indicating that the court would also consider the capacity in which the members of the audience presented at the performance in determining whether such performance of copyright work is a “performance in public”.

Section 43 of the Ordinance expressly provides that performance of a piece of copyright music or a song at an educational establishment (i.e. schools) before an audience of teachers, pupils and other persons directly connected with the activities of the establishment (e.g. parents/guardians) for the purpose of instruction is not a public performance for the purpose of infringement of copyright.

Further, it is interesting to note that in Australasian Performing Right Association Ltd v Commonwealth Bank of Australia (1992) 25 IPR 157, the foreign court held that if it is a family gathering, or if the members of the audience are all bound together by a domestic or private tie, then the performance in a non-domestic place will not be considered public.

In short, a music busker or a member of the public performing popular songs including melody and lyrics belonging to others, to audience in public places is generally prohibited under the Copyright Ordinance. Prior to public performance of copyright songs, one should seek “public performance” licences or consents from copyright owners or verifying if such act is exempted in law.

How to obtain a copyright licence for public performance of a song?

Most of the copyright owners in the music industry have appointed copyright licensing bodies to administer the rights of performance, playing or showing of songs and music in public on their behalf. Therefore, appointed agents will grant licence to performers on behalf of the copyright owners. Performers will have to pay royalties in order to perform a piece of published music or a song in public.

At present, major copyright licencing bodies in the local music industry includes: -

1.        Composers and Authors Society of Hong Kong (“CASH”) represents a group of composers and lyricists and grants licence for public performance of a piece of music or a song;

2.        Hong Kong Recording Industry Alliance Limited (“HKRIA”) and Phonographic Performance (South East Asia) Limited (“PP(SEA)L”) represent different music record companies and grant licences for playing/showing of sound and audio-visual recordings in public.  

Performers who make live performance of songs or music (without playing or showing of any sound or audio-visual recordings) generally only requires a licence from CASH. If the public live performance involves the playing or showing of any sound or audio-visual recordings of a piece of music or a song, licence should also be obtained from HKRIA and PP(SEA)L.

It is worth noting that some public venues, shopping malls and retail stores have obtained general licences from the above appointed agents to use music-related copyright works on an annual basis, so performers should check with the responsible persons running those public places prior to obtaining any licence from the agents or copyright owners.  

Exceptions where public performance of
a copyright song does not require a licence

Section 76 of the Ordinance expressly stipulates that the performing, showing or playing music-related copyright works (other than showing or playing in a broadcast or a cable programme) as part of the activities of, or for the benefit of, a club, society or other organisation without licence is permitted if all the following conditions are met: -

(a)            the main objects of that club, society or organization are charitable or are otherwise concerned with the advancement of religion, education or social welfare; and

(b)           the proceeds of any charges for admission to the place where the music-related copyright work to be performed, shown or played are applied solely for purpose of that club, society or organisation.

Consequences of public performance of
a copyright song without licence

The performance, playing or showing of music-related copyright works in public places does not attract criminal liability. However, copyright owner may apply for a court injunction against unauthorised public performance of music, and sue for costs and damages against the performers (infringers of copyright) under the Ordinance. In the absence of permitted defence, a performer may have to bear civil liabilities and responsible for legal costs plus damages and the amount of royalties to copyright owners if the latter takes out enforcement actions.   

Conclusion

To legalise public performance, playing or showing of music-related works and avoid civil liabilities, performers should obtain a licence or consent from copyright owners or abovementioned copyright licensing bodies for such activities. Needless to say, obtaining a licence is a way of showing respect to music creators and lyricists, which will certainly assist in the development of local music industry.