Gallo Music and Sting Music have locked horns in the South Gauteng Division of the High Court over copyright in certain songs named Thula Baba, Unomathemba and Siliwelile. Gallo claims that it owns the copyright in these songs and that Sting therefore required their authority to include them in the stage musical Umoja and that it is entitled to claim royalties arising out of the inclusion of these songs in the musical. Sting, on the other hand, claims that the songs are traditional and therefore in the public domain with the result that they are free for use by everyone, including itself.
Of course, as has been frequently aired in the past on this blog, once the Intellectual Property Laws Amendment Act (otherwise known as the “Traditional Knowledge Act”) comes into operation, the community, or communities (whatever they may be) from which these songs originated will be able to claim royalties for their use, over and above anything that Gallo may be able to claim. Accordingly, the claim that they are in the public domain may be a short lived illusion and Sting, like everyone else who wishes to use any work which can vaguely be categorised as being traditional, will have to pay the piper. Gone will be the days of utilising material in the public domain, at least as far as so called “traditional works” are concerned, for nothing. One may use the works of Beethoven, Mozart and the like with impunity (unless perhaps they too can be categorised as traditional) but not tribal works because they are sacrosanct..
Be it as it may, the court happily does not have to cope with this complication at the present time. What is in issue is whether the songs are truly traditional, or whether they are the original works of authors who have transferred their rights to Gallo.
The answer to the above question may depend largely on the facts of the matter but it is important that the principle involved should be understood. At the present time songs which are truly traditional works are indeed in the public domain. However, it is possible for a composer to take a traditional song and adapt it or transform it into a new version, whereupon an original copyright is created as a derivative of the traditional work. Provided the composer of the derivative work expends sufficient talent and work in creating the derivative work, copyright subsists in it and he/she is the owner of that copyright. In the event that someone copies his or her derivative version, that copyright is infringed. The fact that source version of the derivative work may be in the public domain is irrelevant. On the other hand, however, in the event that the third party copies the source material, ie. the traditional version of the song, then the copyright in the derivative version is not infringed even though there may be substantial similarity between the third party’s version and the derivative version. In other words, while the maker of the derivative work can have an independent copyright in his new version, that does not give him rights in the traditional version which remains in the public domain and can be used by all (at least for the time being in the case of traditional work).
Interestingly, Gallo was involved in litigation in Belgium in a very similar matter a few years ago. That litigation also involved the song Thula Baba and in addition the songs Jikel-Emaweni and Quonguothwane (Click Song). The evidence in that matter showed that all of the songs on which Gallo relied were derivative versions of traditional songs and that the infringer (Helmut Lotti, the well-known singer) had copied the derivative versions and not the traditional versions. Accordingly, the Belgium court held that copyright infringement had taken place. The factual findings regarding the subsistence of copyright in the derivative versions and which versions had been copied by Lotti were made by a panel of expert musicologists, including an eminent South African expert.
In other words, the essence of the present matter appears to be: which versions of the relevant songs were copied by Sting? If the derivative versions in which copyright is owned by Gallo, were copied, then Gallo appears to have a sound case. On the other hand, if the facts show that Sting went back to the initial traditional versions of the songs and used these versions as their source material, then it would seem that there has been no copyright infringement.
This case highlights the kind of issues which are likely to arise in the future once the communities favoured by the so-called Traditional Knowledge Act get going and start claiming their dues for the use of traditional music and other works. In these circumstances, Sting will be caught between a rock and a hard place and the use of “traditional” songs in musicals is likely to face copyright infringement claims from a variety of sources, from both the Gallos of this world and the communities (probably a plurality of them, each advancing their own cause) which claim to have originated the songs. Let the games begin!
Dr O H Dean
18 May 2012
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Gallo are not saying that the composers of Tula Baba from whom they took assignment derived the work from a traditional work but which the composers arranged somehow to give it some new element that could be regarded as original. On the contrary, they are saying the work is an original composition by Egnos et al that simply was not in existene before the alleged composition date. Which ever way this one goes, it will be an interesting case to watch.
I reckon the proposed IP Laws Amendment Act will not pass constitutional scrutiny. Copyright vests only in works that are original, albeit that this is a low threshhold. Yet, it strikes the appropriate balance between the monopoly granted by the Copyright Act and free speech. However laudible the idea behind the proposed legislation, giving trad communities royalties and with that allowing them the force of injunctive relief if I use works in an unauthorised manner that would otherwise not pass the test for originality (not to even mention the requirements of authorship), appears to upset the delicate balance struck by the Copyright Act. With that, it may amount to a unjustifiable violation of freedom of expression. Someone should take it to the Constitutional Court I say. I’m all for protecting the rights of traditional communities, but uninformed and ill-advised legislation will do more harm in the logn run. For instnace, if Tula Baba is found to be traditional, but I want to use the song, am I then obliged under the new legislation to pay royalties? But to whom? Which community? The song is as old as the hills probably and it seems insane that one would have to pay royalties to some group who cannot definitively establish a claim for authorship.
I have not seen the pleadings in the matter, but from the facts reported in the media claims that the works are totally new and are not derived from existing works seem unsustainable. However, the principle remains the same, namely that if Gallo can show that material original to their authors has been reproduced (whatever else might also have been reproduced) to a substantial measure, their claim ought be upheld, In the corresponding case in Belgium it was claimed by Gallo that THULA BABA was completely new to Egnos, but that the other works copied were original derivatives of traditional works and I surmise that the same applies in the present case. The fact of the matter is that the Gallo owned versions of the song are the ones that are most readily available and are the most likely ones to be copied (where does one find the “traditional” version, as a practical matter). Experience has shown that this is what generally happens and what happened in the Helmut Lotti case.
As you will note from reading the other articles on the blog dealing with the Traditional Knowledge Bill, I am a vociferous critic of it and consider it to be extremely bad legislation, and indeed practically unworkable. I do not believe that any truly traditional work can meet the requirement of “originality” for copyright and consequently that copyright can subsist in any such work that does not already (without the “benefit” of the Bill) enjoy copyright. The possibility exists, however, that in an attempt to give some meaning to the provisions of the Bill (Parliament must be assumed to not pass worthless legislation) the court will be forced to attach some new and strained meaning to the term “originality”, and indeed other established principles of copyright law, and herein, in my view, lies the principal evil of the Bill, i.e. that it will contaminate and undermine the existing well established law.
The article has been written on the premise that the provisions of the Bill will be enforceable and will be given effect by the court (heaven forbid!) and it should be read in that light.
I agree, and have frequently gone on record stating, that the Bill is liable to a constitutional challenge and hopefully this will eventuate. I also share the sentiments that have been expressed in your comment. My view on the protection of traditional knowledge (as reflected in my previous articles) is that a case can be made out for some form of protection, but that it should be provided for in sui generis legislation which grants a measure of protection commensurate with, and appropriate to, the nature of the works in question. This view is widely shared in knowledgeable circles.