In the current unusual situation, we have rediscovered the balconies and rooftops. Suddenly, the city has been humanized, the spirit of the neighbourhood has been recovered and, unpredictably, we have found ourselves singing on the balcony, meeting and greeting the neighbours across the street, humming and listening to songs and hymns that, at dusk, help us lift our spirits and open our minds.
However, can singing these songs, or playing well-known pieces of music at full volume from the rooftop, infringe on copyright? In other words, would these acts be subject to payment of the corresponding royalty to the collecting societies, that is, to the individuals who handle this collection?
Copyright belongs to authors by the mere fact of the original creation of a literary, artistic or scientific work (Art. 1 of the Spanish Intellectual Property Act), and it confers them rights of a personal and patrimonial nature, consisting of the full disposition and exclusive right to the exploitation of the work, without any other limitations than those established by law. This implies that the work may not be used without the authors’ prior authorization, whether for a fee or free of charge.
Authors are therefore the only ones who can authorize or prohibit the reproduction, distribution, transformation and communication of their work, so that a strict and literal application of the law could lead to certain doubts in this respect. However, in spite of the wide range of rights enjoyed by authors, in certain cases the law provides that they have to surrender them in the interest of promoting and developing culture. As any property, intellectual property also has its limitations.
In this case, among other aspects to be assessed, it is necessary to analyse if the songs and hymns on the balconies can be included in an act of “public communication”, defined by law as “any act by which a community of persons can have access to the work without previous distribution of copies to each of them”, or else they would be included in the exception contemplated in the Act itself (Article 20.2 of the Spanish Intellectual Property Act), as they are acts carried out at home, in a domestic environment not integrated into a dissemination network of any kind. However, we are not dealing either with the concept of “public” as such, required by the jurisprudence, which in any case implies a considerable number of persons, without restrictions, and excludes private groups.
In fact, the Spanish Society of Authors and Publishers (SGAE) has encouraged population to continue singing since it is free of cost, but it is invaluable and highly healthy in the current situation. Therefore, they will not monitor these citizen initiatives.
The fact is that music can make us fly, transcend reality, transform our feelings and give us joy and vitality in these unlikely but full of solidarity days from which positive changes will certainly emerge.
Article by Cristina Margalef.
