Monyatsi explained that economic rights grant the owner of the work the right to authorise or prohibit the use of a work in a manner that can potentially attract economic gain. She further stated that includes acts such as reproduction, performing the song, communicating to the public and others, meaning that any use of a work without authorisation of the owner amounts to copyright infringement.
There has been confusion on what copyrights law says about the use of artists' work by another especially to gain profits or without permission.
The confusion was triggered by a misunderstanding between the Thoma ka Serethe singer, Monnamogolo Wa Thulaganyo and The Choreographers BW.
The former asked the dance group to stop using his song at their shows for financial gains. He was also worried that the public was now getting confused as to who the song belongs to. However, the two parties discussed the issue and resolved the matter amicably. “The question of whether or not there is monetary gain is immaterial.
The key question is authorisation by the copyright owner. On the other hand, one of the three elements of moral rights demands that when a work is being used, and as much as it is possible, the owner of the work should be acknowledged (credited). Performance of one’s artistic work is contextual. In the context of a song, performance would mean copying the way the song is performed (meaning the rhythm, the lyrics etc),” said Monyatsi. “In the case of a dance or choreographic work, performance refers to the actual dance itself. If the Choreographer BW are not performing the songs (in this case, meaning singing the songs), for that context they are not violating any rights. If anything, if they create their own choreography and dance to various songs, then they have created their own works, which are protected from being copied,” she said.
Nevertheless, Monyatsi explained that for music to be played by a third party for the public, the third party needs to have been either authorised by the owner or licensed by the Copyright Society of Botswana (COSBOTS) to play the music. She said if the Choreographers BW were performing or dancing at an event, it was expected that the DJ, the event host (this includes weddings, birthday parties, corporate events, and many others) and possibly the owner of the venue where the music was being played, should have a licence from COSBOTS. She said if such licenses existed, then there was no violation of copyright in so far as the music being played. If the Choreographers BW has a DJ component in their business, they need to obtain a DJ license from COSBOTS, otherwise playing that music could be prohibited by the owners.
However, she pointed out that if the dances were original works of other artists, then in that case they need authorisation from the owners, otherwise their acts amount to violation of copyright. She said since the owner of the song was concerned that the public did not know whom the song belonged to, it was advisable for the next party to make an effort to inform the audience about the ownership of the song for clarity.
In a press statement, COSBOTS agreed with CIPA on the matter. They pointed out that moral rights safeguard the personal and reputational connection between a creator and their work; there was no need for weddings to have COSBOTS performance rights license if they are not publicly accessible or lack admission fee while DJs should require the license and also said recording choreographed performance and sharing it online or in a wedding video necessitated synchoronisation rights for the copyrighted music.
