Your Rights!

Music Crossroads & UNESCO presents

Your Rights !

A Musician’s Guide to Music Rights in Southern Africa

Music Crossroads & UNESCO presents

Text by Burak Özgen Illustration by Fahar Layout by Boris Rorsvort

Your Rights !

A Musician’s Guide to Music Rights in Southern Africa Your Rights! A Musician’s Guide to Music Rights in Southern Africa

Supported by :

This booklet has been prepared to provide basic information on Copyright and it is not meant as a substitute for professional advice. Music Crossroads International or UNESCO cannot be held liable for the use of information in this booklet and from the websites or the institutions mentioned herein for a particular legal problem.

© United Nations Educational, Scientific and Cultural Organization, 2009

is a new project by Music Crossroads International and UNESCO to help young musicians in Malawi, Mozambique, Tanzania, Zambia and Zimbabwe, make sense of the complicated world of Copyright.

This handbook will take you through the foundations of Copyright law and provide you with some of the tools you need to succeed as a young musician in Southern Africa!

For more information visit http://www.music-crossroads.net A program of :

Table of contents

5. Collective Management/Collecting Societies

Introduction

What does it mean?

1. What is Copyright?

What can a Collecting Society do for me?

What is Copyright?

How does Collective Management work?

What does Copyright protect?

What are the Conditions for Copyright Protections?

- Who owns the Copyright?

- How long the Copyright protection last?

- So what are your rights under Copyright?

2. Your Rights under Copyright Laws

Economic Rights Moral Rights 3. Related (Neighbouring) Rights What are the Related Rights?

Who has the Related Rights?

How long does the protection of the Related Rights last ?

Rights of Performers

Rights of Producers of Phonograms Rights of Broadcasting Organisations

6. Illegal Use What happens when my work is used without my permission?

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Plagiarism

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What is Piracy?

7. Copyright Contracts General Information Why would I need to sign an agreement?

What are the important points when signing an agreement?

8. Country Specific Information Malawi Mozambique Tanzania Zambia Zimbabwe 9. Glossary

4. Limitations and Exceptions

10. Useful Information

Music is one of the most creative and enjoyable ways of expressing our emotions and ideas. Music helps us to communicate with other people and cultures, to develop and understand histories of our cultures. When we want to learn more about a culture and the stories of its people, listening to their songs, watching their dances, reading their books, looking at their paintings and sculptures, are often the best ways to do it.

Music allows us to understand the feelings of a person even if we do not understand his/her language. It builds an invisible bridge between people from around the world and connects them through the joy of rhythms and melodies.

Music and the arts are important elements of economical growth too. there are many people working professionally in the field of the arts; such as artists who write and perform music, actors that perform in film and theatre, music studios, producers of Cds, dVds, cassettes and the people who sell those works in shops, the list is goes on and on! All of these form a considerable amount of the employment and economical sources of a country.

Besides that, every work you create becomes a part of the rich cultural heritage of your people and the world‌ Creating is a GREAT thing: for you, for the people around you and for the whole world. Creating is important and has value. It requires so much practice, imagination, study, creativity, and refining of personal talents on which artists have to spend most of their time and money.

So, creative artists may not have another job or have little time to earn money from something else. This is why creative work has a financial value too, so the artists can continue to create!! the way this is done in almost all of the countries in the world, is to give special rights to artists for their creative work. These special rights are known as “Copyright and Related Rights� and as an artist they are Your Rights!

What is Copyright?

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�In music there are so many different aspects to consider, as a young musician you need to get informed in order to make the right choices for your career�

Manou Gallo (Ivory Coast)

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What is Copyright?

What are the Conditions for Copyright Protection?

It is the right of the creator to allow (authorize) or to stop (prohibit) the use of his/her work by other persons. The Copyright system secures payment for the use(s) of your works and in this way protects the personal interests of the creators (authors) and encourages creativity within society.

You’ve already got it! There are no conditions for getting Copyright protection but creating !! You are protected by Copyright automatically as you create your artistic works. For example, the symbol © is not a condition for the protection. You may still have Copyright even you do not have that symbol on your recording or lyrics. Some countries may require registration for the purposes of proof and court proceedings, when there is a dispute concerning your work.

What does Copyright protect?

Copyright protects all original creations including musical, artistic, written, dramatic, photographic, choreographic works and much much more…

Copyright does not protect ideas; it protects the original way in which we express our ideas. For example, anyone can write a song about love or freedom but you cannot personally have Copyright protection over love or freedom; if that were true it would mean that no one else but you could sing about love and freedom!

Instead, each love song is protected because it is an original expression of the song’s creator (author).

You do not have to create a masterpiece; even the simplest expressions are provided with the protection as long as they are original and belong to you.

Who owns the Copyright?

As a rule, who creates the artistic work owns the Copyright! So Copyright belongs to the author (creator) of the work. For instance, when you write a song you are the author of that song and you own the Copyright. When a work, for example a song or a book, is created by several people or “co-authors”, all co-authors of that “collective work” have Copyright of the same work.

Sometimes authors may want to hide their names or use another name for their works, this is called a “pseudonym” or “nickname”. In these cases the author still owns the Copyright but, as he wants to remain unknown, his rights can be represented by someone else; for example the publisher.

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How long does Copyright protection last?

So what are your rights under Copyright?

Copyright protection is for a certain period of time. Copyright is a way to protect and encourage people to create art and music, but the works that people create are also important for the cultural heritage of our societies and also for the creation of new works. This is why, after a fixed period of time, the protection of your Copyright ends and your creations become freely available to the public (which is called the “public domain”).

There are two main types of rights provided for authors that are recognized by international conventions around the world. These are economic rights and moral rights.

There are some major international “conventions” (agreements) in the world of Copyright, which are signed by most countries in the world.

And they have set the minimum time (term) of protection as the life of the author and then 50 years more after his/her death.

Economic rights give the works of the author an economic (commercial) value. The Copyright provides authors with a set of “exclusive rights”, which means only the author or people authorized by the author can use these rights.

Moral rights protect the personal and moral interests of the author.

Let’s see what those rights actually are…

In this way, you will get paid for the use of your works by other people during your life for your labour and new creations; then when you pass away, your family or your heirs will receive the financial benefits from your artistic works for the next 50 years. After this term of protection has ended your work will become a part of the world’s cultural heritage and free for public use. Life + 50 years is the minimum term of protection around the world but countries are free to provide a longer period.

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Your Rights Under Copyright Laws

“The music business can be tricky... what is in one day will not necessarily be popular the next. The trick to long-lasting success is to first and foremost believe in yourself and in your own voice, whether you are an instrumentalist or a vocalist. Everyone has something special to offer but only you can bring your particular exceptionally unique brand to the world... it is this unique voice that must be nurtured and shared with all of us. don’t give up.”

Zolani Mahola of Freshly Ground (South Africa) 15

Economic Rights Reproduction right: This is the right of the author to allow (authorize) or stop (prohibit) the copying of his/her works.

Reproduction includes any form of copying such as recording, downloading, photocopying, printing, etc… and it doesn’t matter if it is only for a short (temporary) period or permanent.

Public performance right: When a band performs a song at a concert or a group performs a play in a theatre it is known as a public performance. A public performance also includes the performance of music (CDs) in discotheques, shopping malls, restaurants, public transport, hotels and other public places.

The author of the work has the right to authorize or prohibit such performances.

Broadcasting right: Artistic works that are played on radio or television should only be done with the authorization of the author (creator) of the works.

Translation right: Is the right to allow (authorize) or stop (prohibit) the translation of your work into another language.

Adaptation-Arrangement right: For example, adaptation of a book into a movie or remixing a song (adapting it in a different way), are the subjects of this right and should be permitted by the author.

Distribution right: It includes any form of distribution, such as selling copies to the public, renting copies or importing them. All these acts should be authorized by the author.

Authors can either exercise/use all of these rights on their own or when they think it requires more expertise, they can decide to sell some or all of these rights to someone else, for example to a publisher or record label. You can find more information on this in the ‘General Information on Contracts’ on page 33.

Communication to the public right: This right includes any way of communicating your works to the public by using communication technologies; such as cable TV, wireless transmission, making the works available on the internet, which should be done with the authorization of the author.

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We get to decide first what we want to do with our rights!

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Moral Rights The value that moral rights protect is not economical but personal, such as the honour or reputation of the author. This is why, moral rights, unlike economic rights, are not transferable to someone else, which means you can’t give them away. You can only decide not to use your moral rights but under very limited conditions.

Related Rights Neighbouring Rights

Right of Attribution (Paternity): This gives to the right-holder the right to be identified as the author of his work, for example when his/her work is played on radio or TV. This right also covers the right to keep his/her identity hidden (anonymous) or use another name (pseudonym) under his/her works. For instance, Stevie Wonder used this name throughout his music life , even though his real name was Steveland Morris Judkins Hardaway.

Right of Integrity: It is the right of the author to object to or stop any changes to his/her work, which would damage his/her honour or reputation. Changes affecting the ‘soul’ and integrity of the work can be prevented by this right.

Moral rights do not exist in all countries. When they exist they usually last as long as the economic rights, but in some countries they last forever.

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What are the Related Rights?

How long is the protection of Related Rights?

As we have said, Copyright protects the author who writes and/or composes the songs as well as people who are authorized by the author to use their Copyrights (such as publishers). However, in most cases the people who perform the artistic works, such as singers and musicians or people that make recordings of these works such as producers and record companies or even sometimes broadcasting organizations, are the ones who make artistic works reach the public.

Maybe they do not take part in the writing of the lyrics or composing of the music but their artistic, creative and technical skills allow the work to reach its real value. And this is why their efforts are also protected by national laws as “the rights related to Copyright” or “neighbouring rights”.

The minimum terms of protection provided by the international conventions are as follows: For performers - 50 years starting from the end of the year in which his/her performance is recorded For producers of sound recordings - 50 years starting from the end of the year in which they do the recording For broadcasting organizations- 20 years starting from the end of the year in which they recorded their broadcast programmes.

Who has the Related Rights?

• Performers- for the recording and

broadcasting of their (live) performances

• Producers of sound recordings- to

protect their sound recordings

• Broadcasting organizations- to

protect their recordings of broadcast programmes

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Rights of Performers: Performers are the people who bring life to artistic works by performing them in their unique way; such as the actors, singers, session musicians, dancers…

Performers have “the exclusive right” to authorize : • the first (original) recording, of their live performances • broadcasting of their live performances • copying/reproduction of their recorded performances • distribution of their recorded performances • making available of their recorded performances by wired or wireless means on Internet, digital TV or subscription services

Producers of sound recordings make a big investment in the technological devices needed for recording and with their skills in recording the sounds and producing the music, they add an extra value to the musical works.

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This is why to protect their investment and creative skills they have the exclusive right to authorize or prohibit: • the copying/reproduction of their sound recordings • distribution of their sound recordings • making available of their sound recordings to the public

Limitations and Exceptions

Making an album is a teamwork.

From the performer to the producer everyone has a right in it!

Broadcasting organizations have the exclusive right to authorize

and prohibit:

• the first recording of their broadcast programmes • re-broadcasting/replaying of their broadcast programmes • copying/reproduction of their recorded broadcast programmes In some countries, when broadcasting sound recordings, the broadcasting organizations should make a single payment to the performer and to the producer of the sound recording of the songs. However, this right of performers and producers of sound recordings is not an “exclusive right” to authorize (allow) or prohibit (stop) such broadcasting, it is only the right to receive a payment for the use of the work (“the remuneration right”).

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In the beginning we said that, when the term of Copyright protection runs out (expires), the works can be used freely by the public, because they will then be in the “public domain”.

However there are certain situations in which people can use your works freely without your permission, even though the works are not in the public domain. These situations are called “limitations and exceptions”.

Usually the law provides the authors with other ways of “compensation” for some of these free uses.

Collective Management Collecting Societies

Limitations to Copyright can happen when:

• Using copies of the work for teaching purposes in the schools • Using your work, for example a painting or photograph, for reporting news in the newspaper or TV. • Making ‘quotations’/references from your works in articles or scientific works.

• Making copies of your work in libraries.

Under these conditions we can use artistic works freely without permission of the author, but we still have to indicate (make reference to) the original work and its author, performer or producer.

Some countries also provide “exceptions” for the copying of the works for completely private, personal and non-commercial purposes. This could be, for example, copying a CD into a cassette format to be able to listen to it on your walkman or printing a picture to hang on your wall

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What does it mean?

Artists, who create original works, automatically receive Copyright and Neighboring Rights. And they have the right to authorize the use of their works or receive payments for the uses of their works. For example, an author can negotiate with a music company to record his/her works or to publish them. Similarly, a performer can agree with a record company on the conditions in which he/she will perform the music. These parts of the copyright can individually be exercised (used) by authors themselves.

• Collecting Societies are established by the rightholders themselves or at some instances as public or semi-public organisations and work to make life easier for rights holders/ artists.

However, in some cases, the individual exercise of the Copyright is almost impossible. Imagine that your songs become very popular and the radio and TV stations want to play it several times a day, or that your songs are played in bars, restaurants and discotheques. It would be really difficult for you to keep track of who is playing your song and where! And imagine what would happen if radio stations, bars and discotheques all had to go to each rightholder and negotiate payments and permissions for each song they play during the day. It would be extremely time consuming and costly for both sides.

• They give license (permission) to the commercial users to use the work and they collect royalties (payments) for those uses.

Then they distribute the royalties to each of the rightholders.

To solve this problem, organizations called “Collecting Societies” were created by the artists themselves to collectively manage the relevant rights on their behalf. Collecting Societies give permission (“a license”) to use the works in its collection/repertoire to commercial users, such as radio-TV stations, bars, restaurants, discotheques and hotels. In return they receive payments from these commercial users, which are called “royalties”. In this way, Collecting Societies become the bridge between the rightholders and the commercial users.

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What can a Collecting Society do for me?

• By having collective powers, they have a better position to discuss payments (royalties) for the use of Copyrighted works with commercial users.

• Collecting Societies also defend your rights in court against the illegal use of your works (if someone uses your works without a license).

• They can also provide artists with legal advice on how to exercise their rights.

• Most Collecting Societies provide cultural or social funds, to support the cultural life of the country or to contribute to the health and funeral expenses of their members.

How does collective management work?

• Collecting Societies represent all of its members by acting as a central point for commercial users to access a wide range of artistic works in each country (territory).

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• Members register their works with a Collecting Society, who then prepares all the legal documentation for all the rights of the right-owners it represents.

Illegal Use

• Then they collect the playlists of radio stations, make inspections in public places such as bars and restaurants, and conduct research on better ways to find out how and where their members’ music is being used.

• Collecting Societies of different countries make agreements between themselves to represent each others songs/collections to provide a wider repertoire to listeners in different countries.

• As a member of a collecting society you can receive royalties (payments) even when your song is played on radio in another country! This is one way how as an African, you can receive payment for your music played in America, Europe or other countries in Africa.

• To do that, collecting societies around the world have developed standard electronic identification technologies to accurately follow your rights.

• In the end, after paying administration costs and keeping a percentage of the money for cultural-social funds, Collecting Societies distribute the royalties to the rights holders whose music was used.

I’ve gotta find myself a collecting society!

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What happens when my work is used without my permission?

When your work is copied, performed in public, distributed, broadcasted or adapted, it must be done with your permission (authorization). Using an artist’s works without his/her permission is called “Copyright infringement”.

Copyright infringements reduce the earnings of the author and can put him/her in a difficult financial position. Besides that, it is also harmful to society, because authors, who do not get paid for their work, will not earn enough money to continue creating new works.

This is why national laws provide both financial and criminal measures against the infringers in order to stop the infringement (breaking of the law) and receive compensation (payment) for the damage caused by infringement with the possibility of imprisonment if the infringement continues.

Plagiarism: We know now that all you have to do to get Copyright protection is to create. The ideas and the concepts are there for everyone and Copyright law protects the original way that you express those ideas.

If someone copies the same way that you expressed an idea without your permission and pretends that it is his/her own work; this is called plagiarism. Plagiarism is one of the most common Copyright infringements. Using someone else’s lyrics or composition in a song, or copying the words of your friend in an exam are examples of 30

plagiarism. It should not be exactly (100 %) the same. Works that are substantially similar (not 100% copy but very close) are also considered as plagiarism. To stop this infringement you need to go to court and prove that: (1) the work is your original creation, (2) the other person had the possibility of seeing your work before he prepared the infringing work and (3) the infringing work is substantially copied from your original work.

What is piracy?

Piracy is the illegal sale of Copyrighted works. Pirate copies are produced in great numbers without permission (with no payment) of the authors and usually are sold for low prices on the streets, in carboots or informal places. All the money that is paid for a pirate copy goes directly to the people who make these illegal copies and not to the artists or producers. By buying pirate copies you take away the earnings of artists, damage creativity in society, increase the price of legal copies, support and finance illegal activities, and usually receive a low quality version of the work with no guarantee for faulty copies.

Copyright laws provide very severe (heavy) punishments for people who sell pirated materials. As a musician and a citizen you can help to stop piracy by not buying pirated products, by informing your collecting society and local government authorities when you see your works or those of others being illegally sold. You can also start legal proceedings individually by contacting a lawyer and filing a lawsuit against the pirates.

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Next time you hear a pirated CD remember that an artist like yourself is suffering financially!

Copyright Contracts

Because of piracy, music companies earn less and they would therefore want to invest in big artists that will sell and spend less on upcoming artists!

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General Information Authors, as being the “exclusive” (the one and only) right owners of their works, can sell or transfer part or all of their economic rights to another person e.g. to a music company. This will allow them to spend more time for their art, while the music company takes care of the economic matters. For instance, the author of a book can sell his/her reproduction and distribution rights to a publisher, a musician can transfer his/her broadcasting rights to a Collecting Society and a story writer can sell his/her adaptation rights to a film/theatre producer. There are two ways of selling your Copyrights:

1- Assignment: Assignment is an agreement whereby you transfer the ownership of your Copyright to the other party of the agreement and receive a payment in return.

After the assignment the other party of the agreement becomes the new owner of the rights in your works. Assignment could be for a part or all of your rights; this is why it is very important to state clearly which rights in which works you are assigning to the other party.

2- License: License is an agreement (contract) whereby you give to the other party the right to exercise your rights and in return you receive a payment, which is called a “royalty”. By license agreement you give to that person (or company) only the right to exercise your Copyrights for certain purposes and for certain period of time and geographic territory which must be stated in your agreement. You remain as the owner of the Copyright and the other person (or company) becomes the ‘rightholder’.

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There are two types of licence agreements: If you give a license to one person only with the authority of being the only user of that right, it is called an exclusive license. - If you want to keep the possibility of exercising your rights on your own or of giving other licenses to other people for the same right, then it should be a non-exclusive license.

Moral rights cannot be transferred or sold to someone else and will always remain with author’s, because of their personal link with the honour and reputation of author.

Why would I need to sign an agreement?

There are several reasons why you might need to sign a contract.

Firstly, for increasing the reach of your music to a broader public you may require the expertise of a publisher or the equipment and facilities of a music label to record your album with a better quality. Apart from these, producing CDs in big amounts, placing them in the music shops and promoting your music to broadcasting organisations, film producers or to concert halls can be handled much better by industry professionals. Since your economic rights are commercially valuable and nobody can use them without your permission, you could always have a fair and profitable agreement for the exploitation (use) of your works, if you act carefully.

Do not forget that there would be no music without the musicians but always bear in mind that there is no musician in the world who finds the big success by keeping all of his/her economic rights to him/herself.

Eish! You really have to read the contracts carefully…

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`The

important points when signing an agreement.

While the law sets out your rights, an agreement determines in which way you are going to exercise your rights. Agreement is known as “the law between the parties”. Each contract might have a different appearance, different provisions (articles) and different subjects depending on the facts surrounding the agreement. However, there are some articles (provisions) that should be in every contract when you are selling your Copyright to someone. Below, you will find some of the most important points to consider when signing a contract. As we said, each contract might seem different and the content of each contract may vary due to several reasons. This is why, this booklet alone is not enough to give a comprehensive legal advice for a particular agreement. Before you sign a contract, you should consult your collecting society, your musicians’ union or a lawyer.

The Parties: This comes at the beginning of an agreement. You need to make sure whom you are entering into an agreement with. The name of the persons or the trade name of the company, the contact details of the parties, such as the postal address. If it is a company the registration and tax numbers of the company are important for at least two reasons; • for identifying the correct parties that are bound by the agreement • for communication purposes.

The Subject: The subject of an agreement determines that what the agreement is about. Here, you need to specify which of your rights you are transferring by what type of transfer (e.g. license or assignment). For example, if you are a songwriter you do not need to licence your ‘adaptation 36

right’ to a record company, because the recording and distribution of your song does not require the right of adaptation. And by keeping the control on that right you can use it on your own or license it to someone else. This is like if you rent your house to someone, you do not need to give away all the furniture and/or the food in the house.

The Term: The term of an agreement specifies the period of time that you will be bound by the agreement. This is important because if your works become successful over time, the conditions of the agreement might no longer be satisfactory for you. If the term of the contract is too long you might not be able to ask for better conditions or change your music company, because the agreement is still in force. On top of this, the different time periods in which the parties have to perform their obligations are also part of “the term” article. For example, making 10 songs for one album in the first year of the agreement and another album in the second year would be stated in this part of the agreement.

Exclusivity: Here you need to determine the boarders (limits) of the license agreement. Is it an exclusive or a non-exclusive license? For which territory?

Can the other party license the right to someone else? These are just some of the questions that will be answered in this section. For example, you can give to a publishing company an exclusive license to publish your works in your country and you can keep your rights for the rest of the world, (if you think that this company cannot successfully publish your work in the other countries). And when you become internationally successful you could then make another agreement for other countries/territories with an international company.

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Payment (Royalties): Payment is what you receive in exchange for transferring/licensing your rights to another person. The payment can be made in several ways. The most common are ‘the advance payment’, which is the money that is paid to you while entering into an agreement and ‘royalties’, which is the money that is earned from the commercialisation (exploitation) of your works. The standard practice in the industry agreements is that the music companies give an advance payment to the artist as an investment and then the company compensates (recovers) that amount from the royalties that it collects as the rightholder. When the amount is covered, the artist and the company shares the royalties according to the provisions of the agreement.

It is always important to specify for what purpose the advance payment is made and with which royalties this amount will be covered (recouped). Otherwise the music company can collect money for uses of your rights that are not subject to the agreement.

Country Specific Information

Remember that this system encourages the music companies to promote your album better, because if the album is not sold enough they cannot compensate (recover) the money they paid to you. If you sell all of your rights to a person (company) for one (advance) payment, then there will be no further chances to receive a payment again or to force the music company to promote your music. You end up having to release another album just to receive another payment!

There are two sides to every contract and one of them is you!

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MALAWI Copyright

Economic Rights: • Reproduction right • Distribution (to the public) right • Translation/Adaptation/Arrangement right • Transformation rights • Communication to the public right

Moral Rights: • Attribution right • Integrity right • Right to change the work any time after its publication. (This is a rare moral right. For the exercise of this right the author could be responsible for the expenses of such changes to his/her work after the publication).

Term of Protection: The term of protection for both for economic and moral rights is the life of the author and 50 years after his/her death.

Limitations-Exceptions: • Private use • Quotations by indicating the source and credits • Illustrations for educational (teaching) purposes • Reproduction and communication to the public for informative purposes in the press, TV or radio • Reproductions for library and public archives • Temporary ephemeral recordings by broadcasting organisations (6 months only).

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Related Rights Rights: Copyright law in Malawi grants (gives) only economic rights to performers, producers of sound recordings and broadcasting organisations.

For Performers: Exclusive right to authorise • the broadcasting and the communication to the public of their live performances • First fixation of their performances • Reproduction of their fixed performances (this could also be used for the reproductions from the fixation without permission and reproductions that are not under the agreed terms).

The performers also have the right to receive an equitable remuneration (payment) to be shared with producers of sound recordings for the broadcasting and the communication to the public of their sound recordings that are published for commercial purposes.

For Producers of Phonograms (sound recordings): Exclusive right to authorise • Reproduction of the sound recordings • Distribution to the public of the sound recording, including any importation for distribution purposes • Communication to the public of the sound recordings.

For the broadcasting and the communication to the public of the sound recordings that are commercially published, a single equitable remuneration shall be paid to the producer of the phonogram to be shared with the performers.

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Term of Protection: For performers: 20 years starting from the end of the year in which the performance took place.

For the producers of sound recordings: 20 years starting from the end of the year in which the recording published for the first time.

Protection of Expressions of Folklore: The law grants Copyright in expressions of folklore to the Government for the works; such as folk tales, folk poetry and riddles, folk songs and instrumental folk music, folk dances, plays and artistic forms of rituals, production of folk art, traditional musical instruments. Any publication, reproduction and any distribution of copies of expressions of folklore; or any communication to the public, including recitation, performance, broadcasting or distribution by cable, of expressions of folklore should be done with the authorisation from the Minister (Sports and Culture) if they are to be used for gainful purposes (for money) and outside of their traditional context. When they are used for creating an original work by an author inspired by folklore no authorisation is required; use of expressions of folklore for educational or informative purposes or by way of illustration in an original work would also be free.

Collective management: Collecting Society of Malawi (COSOMA)

is the only collecting society. COSOMA represents the rights of authors, composers, performers and publishers (as well as visual artists, photographers, dramatists/play-writer, writer, both fiction and non fiction, journalists). COSOMA administers broadcasting, public performance and mechanical rights; takes legal action on behalf of its members in case of infringement and also fights against piracy.

COSOMA collaborates with the police department, judiciary and chamber of commerce for its activities.

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MOZAMBIQUE Copyright Economic Rights: • Reproduction right • Public performance right • Translation/Adaptation/Arrangement and Transformation rights • Distribution right by sale or any other way including rental and lending of the works and controlling the import and export of the works • Communication to the public for broadcasting by cable transmissions or any other way

Moral Rights: • Attribution right, including remaining anonymous (hidden name) or using pseudonym (another name) • Integrity right

Term of Protection: For economic rights; the life of the author and 70 years after his/her death. Protection for moral rights lasts forever.

Limitations-Exceptions: • Private copying is allowed and there is also a compensation payment is available for the authors and performers for the private copying of their works.

• Quotations • Use for educational purposes

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• Reprographic reproductions for libraries • For information purposes in the press • Temporary archive recordings of broadcasting organisations for non-commercial purposes • Public performance for official and religious ceremonies or educational purposes.

Related Rights Rights: Copyright law grants only economic rights to performers, producers of sound recordings and broadcasting organisations.

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For the broadcasting and the communication to the public of the sound recordings that are commercially published, a single equitable remuneration shall be paid to the producer of the phonogram to be shared with the performers. Money gained shall be shared between the performers in accordance with contractual provisions and if the contract does not expresses to the contrary the split should be 50%-50%.

Term of Protection: For performers: 50 years starting from the end of the year in which the performance took place.

For Performers: Exclusive right to authorise • The Broadcasting and the Communication to the public of their live performances • First fixation (first recording) of their performances • Reproduction of their fixed performances (this could also be used for the reproductions from the fixation without permission and reproductions that are not under the agreed terms). The performers also have the right to receive an equitable remuneration to be shared with producers of sound recordings for the broadcasting and the communication to the public of their sound recordings that are published for commercial purposes.

For the producers of sound recordings: 50 years starting from the end of the year in which the recording is made.

For the Producers of phonograms: Exclusive right to authorise • Direct or indirect reproduction of copies of his/her phonogram • Recording of his/her broadcast programs • Reproduction of a recording of his/her broadcast programs.

Collective management:

Protection of Expressions of Folklore: The ownership of the Copyright in works of folklore is with the State of Mozambique and can be exercised by the Council of Ministers. The Council respects the rights of those who make translations, arrangements and collection of works of folklore. With the authority of the Government body responsible for culture, it controls and authorises the import of any copy, arrangement, translation or transcription of such works of folklore in to Mozambique.

SOMAS (Sociedade Moçambicana de Autores) administers and licenses the performing rights for authors of musical works. SOMAS also represents authors of literary works and is active in licensing reproduction rights in printed works. According to their constitution they accept only authors and composers, no corporate membership, such as publisher membership, is allowed. SOMAS provides legal 45

and professional help to authors and also some financial support for health and funeral expenses of its members. There is also the Mozambique’s Copyright Office, dealing with the policy making issues, registration of rights, etc.

TANZANIA Copyright Economic rights: • Reproduction right, only temporary reproductions that are a part of other process and do not stay in any format are exempted • Public performance and public exhibition right • Broadcasting right • Distribution right including the rental of physical copies and the import of any copies in the country • Translation/Adaptation/Arrangement right • Communication to the public right, including the “making available” right.

Moral rights: Attribution right, and Integrity right

Term of protection: Both for economic and moral rights the protection lasts during the life of the author and 50 years afters his/her death.

Limitations-Exceptions: • Private copying • Quotations by indicating the source • Use for teaching and training purposes, (but only when used fairly and by indicating the source) 46

• The use for journalistic/reporting purposes • Reproduction and copies of printed works by the libraries.

Related Rights Rights: Copyright law grants (gives) economic rights to the performers, producers of sound recordings and broadcasting organisations and also moral rights to performers.

For Performers: Exclusive right to authorise • Broadcasting and the Communication to the public of their live performances • First fixation of their performances, • Reproduction of their fixed performances (this could also be used for the reproductions from the fixation without permission and reproductions that are not under the agreed terms) • Distribution right, Rental and Public lending right, Making available right.

The performers also have the right to receive an equitable remuneration, to be shared with producers of sound recordings, for the broadcasting and the communication to the public of their sound recordings that are published for commercial purposes. Such remuneration should be paid to the producer and then shared between the performer and the producer according to the contractual provisions. Copyright law of Tanzania also recognises the moral rights of Attribution and Integrity for the performers.

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For Producer of phonograms: Exclusive right to authorise the • Reproduction of the phonograms, • Distribution • Rental and Public lending, and “Making available” of the phonograms (sound recordings).

For the broadcasting and the communication to the public of the sound recordings that are commercially published, a single equitable remuneration shall be paid to the producer of the phonogram to be shared with the performers. Moneys shall be shared between the performers in accordance with contractual provisions and if the contract does not express to the contrary the split should be 50%-50%.

Term of protection: For performers: 50 years starting from the end of the year in which the performance is fixed, or if the performance is not fixed, then same period from starting from the end of the year in which the performance took place.

For producers of phonograms: 50 years starting from the end of the year in which the sound recording is published, or if the sound recording is not published same period starting from the end of the year in which the sound recording fixed.

the expressions of folklore. Their utilisation with gainful intent and outside their traditional context is subject to authorisation. The utilisation could be any application, reproduction and distribution of them or their communication to the public of them, including broadcasting and cable distribution. Authorisation is given by the National Arts Council of Tanzania and supervised by the Ministry.

No authorisation is needed for the use of such expressions for • educational purposes • utilisation under fair practice in an original work • borrowing parts for creating another original work • the use for news reporting purposes

Collective management: COSOTA, Collecting Society of Tanzania, administers both Copyright and Related Rights. It collects royalties on behalf of authors, publishers, performers and producers of sound recordings from the public performance and broadcasting of musical works. It is in the process of collecting royalties for mechanical rights and reprographic reproduction rights too. COSOTA provides legal and professional advises for its members, publishes information on Copyright law, fights against piracy and advises the Ministry in policy making.

It also provides social and cultural funds for its members. Any royalty for the authorisation of the utilisation of the expressions of folklore is collected by the National Arts Council of Tanzania.

Protection of the Expressions of Folklore: Folk tales, folk poetry, riddles; - folk songs and instrumental folk music; - folk dances, plays and artistic forms of rituals; - production of folk art, in particular drawings, painting, carvings, sculpture, pottery, terracotta, mosaic, wood work, metal ware, jewellery, baskets, costumes; and - traditional musical instruments are considered as 48

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ZAMBIA

Related rights

Copyright

Rights:

Economic rights: • Publication right that comprises the distribution of the copies for sale or for free • Reproduction right • Broadcasting right, including inclusion in cable program service • Communication to the public in any other way • Importation of the copies into Zambia • Adaptation right.

Moral rights: Attribution right

Term of protection: For economic rights: The life of the author and 50 years after his/her death.

For moral rights: Only during the life of the author

Limitations-Exceptions: • Use of the works fairly for the purposes of research or criticism or reporting of events in the press and broadcasting channels • Performance or reproduction of works for educational purposes • Reproduction of works by libraries or public archives • Recording of a broadcast program for private and personal uses (home taping)

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The related rights of the performers and producers of phonograms cannot be assigned or transferred as whole to another person. Only non-exclusive licenses are allowed. The law does not give exclusive rights to the owners of related rights but only the right to prevent the following acts when they are made without the consent of the right holder.

For the Performers: • First recording of their performances, including the reproductions of the recordings made without his/her consent • Broadcasting and communication to the public of their live performances • Reproduction • Distribution, including the sale, rental and import of their recorded performances For the Producers of Sound recordings: • Reproduction of the sound recordings, including the broadcasting and communication to the public of such recordings • Distribution of recordings by way of sale, rental, and import.

Term of protection: For both economic and moral rights it is 50 years starting from the end of the year in which the performance took place.

Protection of Expressions of Folklore: No provisions in the Copyright law.

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Collective Management:

Term of protection:

Zambia Music Copyright Protection Society (ZAMCOPS) administers the public performance rights for the authors, composers and publishers in Zambia. ZAMCOPS fights against the piracy in the country and takes actions on behalf of the rightholders. It provides guidelines on the industry contracts to musicians. There is also Zambian Union of Musicians that provides such help and National Arts Council of Zambia for the promotion of the arts in the country.

The Registrar of all Copyright keeps record of Copyright information, monitors and encourages the activities of collecting societies and at the request of the rightholders or collecting societies, it examines infringement cases and advises the public prosecutor.

For economic rights the life of the author and 50 years from the end of the year in which the author dies.

For moral rights as long as the Copyright exists in the work.

ZIMBABWE Copyright: Economic rights: • Reproduction right • Public performance right • Broadcasting right • Publishing right • Importing the works into and exporting them out of Zimbabwe • Adaptation right • Cable transmission right

Moral rights: • Attribution right, including remaining anonymous (hidden name) or using pseudonym (another name) • Integrity right

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Limitations-Exceptions: • Private copying and home taping • Fair dealing for research and private study • Educational use • Copies made for libraries and archives • Fair dealing for criticism, review or news reporting • Quotations • Public reading and recitation in certain cases • Incidental inclusion of copyrighted works

Related Rights: Rights: The Copyright Law of Zimbabwe grants only economic rights to performers. And the Related Rights in Zimbabwe are not exclusive rights but they are only a right to prevent certain acts that are listed below, when they are undertaken without permission. The Copyright Law also provides performers with a right to receive remuneration, when their performances fixed in a sound recording are used for commercial purposes such as broadcasting, cable transmission, publishing or public performance. This payment for remuneration should be made to producer or any other rightholder in the sound recording and then the half of it is paid to performers.

For the Performers: • Recording of live performances • Broadcasting or cable transmission of live performances • Broadcasting of an illicit (unlawful) recording 53

• distribution of an illicit (unlawful) recording by way of importing or exporting, renting, offering or exposing for sale.

For the Producers of sound recordings: • Recording of live performances • Broadcasting or cable transmission of live performances • Broadcasting of an illicit recording • distribution of an illicit recording by way of importing or exporting, renting, offering or exposing for sale

performance and mechanical rights of the authors, composers and publishers. Apart from collecting and distributing royalties from public performance and mechanical uses, ZIMRA also provides legal advice, as well as some social funds such as burial assistance and pension for its members. Zimbabwe Cultural Fund is responsible for the cultural support to the musicians but ZIMRA also offers some support for music education and buying instruments for institutions.

Term of protection: 50 years starting from the end of the calendar year in which the performance took place.

Protection of Expressions of Folklore: The Minister may, by notice in the Gazette, reserve the exclusive rights under the Copyright in the works of folklore for the Ministry (Minister of Justice, Legal and Parliamentary Affairs) or for the local authorities. The works of folklore are counted as folk tales, folk poetry and traditional riddles; folk songs and instrumental folk music; folk dances, plays and artistic forms of ritual; productions of folk art, in particular drawings, paintings, sculptures, pottery, woodwork, metalwork, jewellery, baskets and costumes for which no person can be claimed as author and which form traditions specific to one or more communities in Zimbabwe. Nothing can be done with those reserved works without the authorisation of the Minister or the local authorities unless they are used for non-gainful purposes in their traditional context. A license is obtained from the Minister or the local authority when they are used for gainful purposes. Creation of new works inspired by works of folklore is free.

Collective Management: Zimbabwe Music Rights Association (ZIMRA) administers the public 54

“We make music because we are born with it in us and it must come out. Many things in music come naturally but to truly achieve your dreams it takes hard work, dedication, knowledge and passion.

Nothing is for free and nothing is certain.”

Body Mind & Soul (Malawi) 55

Glossary

“Love your instrument. If you don’t love your instrument, your instrument is not going to love you. know that there were people before you, so listen to those people and their past. Be creative yourself, have your own confidence.”

Mamadou Diabate, kora player (Mali/US)

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Assignment Assignment is the transfer of ownership of Copyright from the owner to a second party. Only the economic rights in the Copyright can be assigned, since the moral rights are not assignable due to their personal character.

Author An author is the natural person who has created a work. He/she has an exclusive right to decide if or how his/her works are used by others. The economic right to a work can be given away or transferred but the moral right can not. The person or business to whom a Copyright is transferred becomes the new rightholder, but it does not become the author. The author can only be the natural person who participated in the creation of the work.

Author’s Right This is the area of law that protects the authors of original works, providing them with economic (commercial use) and moral (authors’ personality) rights. The “Author’s right” is the concept for the protection of literary, artistic and musical works used in civil law systems (i.e.

Continental European countries) instead of the word “Copyright”.

Blanket License An annual copyright license given in return for a flat fee allowing music users such as television and radio stations, universities, restaurants and music services to perform or broadcast musical works in repertoire represented by a collecting society (including representations through reciprocal agreements) as often as they want.

Collecting society A collecting society is an institution founded by law or by authors and owners of Copyrights and Related Rights.

Their main purpose is the collective management of these rights and 58

the collection and distribution of royalties.

Collective management This refers to the management of Copyrights for a group of rightholders, and the collection and distribution of the royalties collected by the collecting societies.

Communication to the public right The right to authorise or prohibit any communication to the public of a protected work, by wired or wireless means.

Copies Copies are material objects, other than phonograms, in which a work is fixed by any method now known or later developed and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term includes both material and digital forms, other than the first fixation (first recording). Some countries define “copies” only as material objects.

Copyright (1) In its broadest sense, the area of law or the right dealing with the protection of authors’ works and of productions of modern technology incorporating such works, such as sound recordings, films and broadcasts.

(2) A description of the system of law that applies in the common law countries (UK, Commonwealth, Ireland, US, etc) for the protection of authors’ works (and in some cases other material), as opposed to the ‘author’s right system’ applying in civil law countries (France, Germany, etc).

Copyright exceptions Exceptions to Copyright protection are made in order to protect impor59

tant third-party (public) interests. For example, protecting uses of a private nature, uses assisting the handicapped, or certain uses with educational purposes or in newspapers.

Derivative work A work based upon one or more pre-existing works; such as a translation, dramatization, musical arrangement, etc. Derivative works are the subject of adaptation and arrangement rights because they are adapted or arranged from another existing work(s).

Digital rights management Digital rights management (DRM) makes it possible to electronically manage and control the usage of digital content and the rights in the content in the digital environment.

Digitalisation

License A license is the grant of permission to use a copyrighted work for a specific and limited use. A license does not transfer the ownership of the Copyright, or it does not give the right to use the work in any way other than the use specifically granted in the license agreement.

Literary works Any works, other than dramatic or musical works, which are written.

Making available right This is the right to communicate the works to the public by wired or wireless means in a way that the members of the public can access them anytime anywhere.

Digitalisation is transforming analogue information such as text, picture and sound into an electronic form which can be saved and edited in any way and without loss of quality.

Mandatory collective management

Downloading

Mechanical right

The process of taking a copy of a digital file and keeping it on your local hard drive.

Infringement Violation of the rights granted by Copyright law. Using the works of author without his/her permission.

Intellectual property The legal protection of industrial property (which includes patents, trademarks, designs and plant varieties) and Copyrights and related rights are regulated under intellectual property laws. These laws give to the creators of intellectual works and innovations a special pro60

perty right which is exclusive but limited in time and territory.

It occurs when right holders are legally bound to assign or transfer their rights to a collecting society.

The right to mechanically reproduce an authors’ work on a sound recording (CD, Vinyl, tapes).

National treatment National treatment is the principle accepted by all countries party to the Berne Convention, Rome Convention, Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement and/or the Universal Copyright Convention, extending the Copyright protection enjoyed by the citizens of and residents in a particular country to nationals of other countries that are party to (a part of) the agreement. That means that for instance a German citizen is protected by the provision of the Malawian Copyright act for any infringement that may take 61

place in Malawi.

Neighbouring rights The rights which depend on an existing work of an author; they include the rights of performers, broadcasters and phonograms producers.

Phonogram The physical object on which copyrighted sounds are fixed, which includes cassette tapes, CDs, LPs, 45 r.p.m. disks, as well as other formats. Soundtracks of audiovisual works are excluded from this group.

Performers The actors, singers, musicians, dancers or other persons who act, sing, or otherwise perform literary or artistic works.

Private copies Some copyright laws allow making private copies; for example, copying a work for personal use on another player or for a close circle of friends or family.

Public domain Public domain refers to creative contents which are freely available to public. It is not protected by Copyright either because no copyright protection ever existed (i.e., the content is not considered a work), because the term of protection has expired (e.g., Mozart’s works), or because it is exempt under Copyright (e.g., legislative texts).

Reciprocal representation agreement A contract between two collecting societies whereby the societies give each other the right to grant licences for any public performance of copyrighted musical works of their respective members.

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Reproduction right Right to authorise the direct or indirect copy of a work.

Reprographic reproduction Based on the reproduction right and the exceptions and the limitations, reprographic reproduction is the reproduction of printed works through mechanical or electrical means, such as printing, photocopying, scanning, digital copying, and electronic storage of databases.

Royalty The profit that is paid to the copyright holder based on proceeds that result from the use of his or her work.

Simulcast Simultaneous transmission by radio and TV stations via the Internet of sound or audiovisual works included in their broadcasts of radio and/or TV signals.

Synchronization right When musical compositions of authors are recorded with visual images for TV or film, these recording/reproduction rights are called synchronization rights.

Technological measures Technological measures refers to specialized hardware and/or software technology designed to prevent users from gaining unauthorized access to digital content or making unauthorized copies of content. Copy protection on audio CD’s, regional codes on DVD’s and password protection for online music store access are examples.

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Webcasting The use of streaming technology to create an internet service equivalent (the same as) to broadcasting.

WIPO The World Intellectual Property Organization, commonly known as WIPO, is a subsidiary organization of the UN. Its headquarters are in Geneva. Its primary task is to promote the protection of intellectual property worldwide through international agreements and treaties and to supervise the UN member states which have signed the intellectual property agreements. In Copyrights, WIPO administers various treaties including the revised Bern Convention, the Rome Convention and the WIPO Internet Treaties.

Work made for hire It refers to a particular practice much more associated with the United States law system. When a work is prepared by an employee within the scope of his or her employment or when it is a commissioned work that the parties agree in writing to treat it as a work made for hire, partnership, corporation, or the real person for whom the work was prepared is considered –as an exception to the general rule explained above – to be both the “author” and the owner of Copyright from the moment of creation of the work.

Wow that was a lot of new terms but I think it makes more sense now! Do you?

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Useful information

You can always find more information on Copyright and what you can do with your music from the following contacts.

UNESCO: http://portal.unesco.org/culture/en/ev.php-URL_ID=12313&URL_DO=DO_ TOPIC&URL_SECTION=201.html

WIPO (World Intellectual Property Organization): http://wipo.int/Copyright/en/ http://www.wipo.int/freepublications/en/index.jsp?cat=Copyright

ARIPO (African Regional Intellectual Property Organization): http://www.aripo.org

A “Do It Yourself” Guide for pop music career: http://www.flac.co.za/all_Elements/umnyama/Umnyama-DiY-Web.pdf

You can also visit or contact the following addresses in your country.

Malawi:

Collecting Society of Malawi (COSOMA): Cosoma House Off Paul Kagame Road Next to Malaxi Rural Finance Company Head Office Lilongwe 3 MALAWI Tel: 265 (01) 751 148 Fax: 265 (01) 753 018 E-mail: cosoma@yahoo.com Web: http://www.cosoma.org Musicians’ Association of Malawi (MAM): AGMA House, Maselema, P.O. Box 51196 Limbe Tel: 265 1 674 337 Cell: +265 9 958 243 Fax: 265 1 675 462 Email: mam@sdnp.org.mw costenclearing@sdnp.org.mw 66

Music Crossroads Malawi: Private Bag A 48, Lilongwe Malawi Tel: +265 1 926 578 / +265 1 792 012 Cell: +265 9 916 799 / +265 8 382 939 E-mail: mcmalawi@music-crossroads.net

Mozambique:

SOMAS (Sociedade Moçambicana de Autores) - Av. 25 Setembro Prédio Santos Gil - Continental 5° Andar, Sala 56 759 Maputo MOZAMBIQUE Tel: +258 1 30 37 33 Fax: +258 1 30 37 34 E-mail: somas@teledata.mz Association of Mozambique Musicians: Av Magiguana, N° 710 R/C, Predio Macau 6 Andar, Maputo Tel: + 258 1 42 87 06 / + 258 1 31 22 27 Fax: + 258 1 30 16 04 E-Mail: xipalapala@gmail.com h_langa1@hotmail.com Music Crossroads Mozambique: Avenida Emilia Dausse 1326, Maputo Mozambique Tel: +258 82 427 28 00 / +258 82 808 36 30 E-mail: mcmozambique@music-crossroads.net

Tanzania:

Collecting Society of Tanzania (COSOTA) - Co-operative Building Lumumba Street P.O. Box 9393 Dar es Salaam UNITED REPUBLIC OF TANZANIA Tel: +255 22 21 25 981 Fax: +255 22 21 25 982 E-mail: cosota@intafrica.com 67

Tanzania Musicians Network: P.O. Box 32429, Dar es Salaam Tel: +255 741 274 747 Email: musicnettz@yahoo.com , jkitime@netscape.net Music Crossroads Tanzania: P. O. Box 31876 Kijitonyama, Dar es Salaam Tanzania Tel: +255 22 246 03 84 Cell: +255 754 94 95 93 E-mail: mctanzania@music-crossroads.net

Zambia:

Zambia Music Copyright Protection Society (ZAMCOPS) - P.O Box 51259 Ridgeway Lusaka ZAMBIA Tel: +260 1 229270 Fax: +260 1 229270 E-mail: zamcops@zamnet.zm Music Crossroads Zambia: Post.Net Arcades, P/bag E10 Box 238, Lusaka Zambia Tel: +260 977 46 127 E-mail: mczambia@music-crossroads.net

Zimbabwe:

Zimbabwe Music Rights Association (ZIMRA) - P.O. Box A 1961 Avondale Harare ZIMBABWE Tel: +263 4 33 61 85 +263 6 33 90 11 Fax: +263 4 336 187 E-mail: zimra@mweb.co.zw Web: www.lalelamusic.com/zimra The Reproduction Rights Organisation of Zimbabwe (ZimCopy): ZimCopy 123 The Chase, Mount Pleasant, Harare Zimbabwe Tell: +263 - 47 44 339 Cell: +263 - 912 349 067 Fax +263 - 47 45 123 E-mail: zimcopy@africaonline.co.zw Music Crossroads Zimbabwe: 15 Airport Road, Hatfield, Harare Zimbabwe Tel: + 263 4 754 510 Cell: +263 912 89 53 E-mail: mczimbabwe@music-crossroads.net

National Arts Council of Zambia: Community House (MCDSS), Sadzu Road, P O Box 50812 Lusaka Zambia Tel: +260-211-220-639 Fax: +260-211-220-638 Email: nacz@coppernet.zm

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MUSIC CROSSROADS IN SOUTHERN AFRICA (MCSA) is a unique youth empowerment through music program initiated in 1995 by Jeunesses Musicales International (JMI) and presently encompassing five Southern african countries: Malawi, Mozambique, Tanzania, Zambia and Zimbabwe. The Music Crossroads Program reaches every year some 75.000 musicians aged 15-25 and 50.000 audiences in the five countries. the mCSa strategy encompasses 40 annual festivals/workshops/competitions throughout all the 5 countries, promoting musical creation and performance in all styles of music, traditional as well as contemporary.

In addition, the program aims at creating sustainable musical structures in the target countries, improving self-awareness, respect and social inclusion of young African individuals. MCSA promotes the participation of young women through the “Girls Only!” initiative and addresses hIv/AIdS prevention through the “Relationship workshops” and “Songs4Life” activities.

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Thanks to the generous support from SIdA (Sweden), the Norwegian Ministry of Foreign affairs and UNESCO, MCSA has developed into the largest cultural program in Sub-Saharan Africa and the most important youth empowerment program on the African continent.

A program of :

“Music is an expression of the soul, it is our ancestral heritage and we need to be able to look after it and value it”

Mamady Keïta (Guinea)

The Music Crossroads Southern Africa strategy program 2006-10 is generously supported by:

This booklet is a free educational material produced by the Music Crossroads International and its use with commercial purposes is strictly prohibited.