This weekend a new edition of the Lollapalooza festival was held in our country, and like any event of this magnitude, it is not immune to implications at the intellectual property level, particularly with respect to the essential part of the meeting: music.
Although one might think that a song is a single intellectual property right, the truth is that it is broken down into 2 different intellectual works, protected by our intellectual property legislation (Law No. 17,336). The first is the musical composition, that is, the lyrics and melody; and the second, execution/interpretation. The musical composition is protected autonomously as an intellectual work by copyright, while the performance by related rights.
So then, we find that the artist who performs on stage may or may not be the owner of the copyright on the songs (the musical composition) that he performs. For example, it may be that a band composes its songs (such as the famous Lennon-McCartney partnership in The Beatles) and then performs them themselves, while there are other cases in which the songs are written by third parties so that a famous artist then performs them. . Likewise, there are many variations, one person composing the melody and another writing, among others.
It is worth mentioning that the performance of musical compositions at an event, without the authorization of the owners, entails an infraction punishable by fines, compensation and other measures granted by law. As you can imagine, mapping and finding all the headlines for the countless songs that will be performed at Lollapalooza would involve asking each invited artist/band in advance for the setlist they will play and including the details of the copyright holders for each. composition.
In order to safeguard this situation and be able to carry out Lollapalooza, and any event of these characteristics, more expeditiously, there are collective management entities, legal entities that manage the copyright of a certain category of intellectual works and can give “authorizations.” to those who want to use protected works, upon payment of a fee set by the entity. In Chile, in the case of music, it is the Chilean Copyright Society (SCD).
Although it seems that this solution would eliminate any inconvenience, this is not the case, since the relationship between the SCD and the producers of musical events/festivals is usually tense, and there have been various conflicts in court. On the one hand, the SCD, being the only entity legally authorized to manage rights to musical works, can unilaterally set the rates, which is why on more than one occasion it has been accused of abuse of a dominant position according to free competition legislation.
Finally, there are conflicts due to cases in which the SCD has sued event/concert producers for non-payment of fees in cases where the author himself is the artist performing at the event. Although national jurisprudence is not uniform, the Supreme Court has held that despite the literal wording of the law, the author’s presentation at the festival constitutes an implicit authorization of use of the protected material in favor of the producer of the event.
As we see, there is a diversity of criteria and important legal implications from the point of view of intellectual property that must be protected for the correct organization and operation of musical events and festivals.
This opinion column is by Esteban Orhanovic, associate of the IP, Tech and Data group.
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