- Public performance
We are surrounded by music everywhere: in cafés and restaurants, clubs and concert halls, shops, and other public spaces. When music is performed in public, it must be remembered that every piece of music is considered a work of authorship, which is subject to copyright. Consequently, the person organising the public performance of a work must obtain prior permission (a licence) from the author or the organisation representing the author, i.e. the authors’ society. Permission must also be sought in advance if the work is to be publicly performed by any technical means (such as a CD player) or if the work is to be broadcast via radio, television, or cable. Permission is also needed if the work is to be performed in such a way that people can listen to it at a place and time of their choosing.
Under copyright law, public performance means playing, singing, or otherwise performing a work, either directly or by any technical means or process, in a place open to the public, or in a place not open to the public but in which an indefinite number of persons outside the family and immediate circle of acquaintances are present. It does not matter whether the public perceives the work or not, or whether anyone notices that the music is playing. The technical means used for the performance are also irrelevant.
It should be emphasised that the notion that no fee is payable for the presentation of a radio programme (e.g. when radio music is played in the background in a shop) because the radio service provider has already paid for the use of the works performed is false. In actuality, only the radio broadcaster has paid royalties for the right to broadcast the work. However, if someone wants to use the same radio programme as background music in their business premises, it constitutes a public performance of the work and a separate fee must be paid. Also, if you’ve bought a CD or created a Spotify account, you can use the music associated with them for personal purposes, but not commercial purposes such as setting the mood in a restaurant or bar.
EAÜ represents the rights of over 5 million authors and music publishers. Entering into an agreement with EAÜ is a quick and easy way for event organisers, businesses, and other interested parties to legally use works by authors represented by the society.
- Transmission of musical works
Under the Copyright Act, the author has the exclusive right to authorise the communication of his or her works by radio, television, cable, satellite, and other technical devices.
ERR broadcasts more than 230,000 musical works in one year. As it would be cumbersome to apply for individual licences from each author and music publisher, it has become common practice around the world to obtain the necessary licences for the distribution of musical works through authors’ societies.
Therefore, radio and television organisations, cable operators, and anyone else who broadcasts programmes (including films) shall obtain a licence from an authors’ society (in Estonia- EAÜ) to broadcast musical works included in those programmes. In other words, they have to enter into an agreement with the society.
Pursuant to the Copyright Act, it makes no difference whether a musical work is transmitted for the first time or is retransmitted. Thus, for example, cable TV companies that broadcast programmes from other TV stations shall obtain a permission from both the TV station to show its programme and from the EAÜ to use musical works included in that programme.
- Recording (reproduction) of musical works
The author has the exclusive right to authorise the reproduction of his or her work, i.e. to make a copy of it. For making a copy, the music is stored on a storage medium (such as a CD, computer hard disk, USB stick, or other storage device).
If you want to record a piece of music for use in advertising, or if you want to modify the work (for example, to make an arrangement or to replace the foreign-language lyrics with Estonian), you need to obtain permission directly from the author or publisher of the musical work. EAÜ can help you find the contact details.
Recording a musical work from an existing audio carrier to another audio carrier also requires permission from the producer of that audio carrier and the performers of the musical work.
Without permission, recordings (for example, radio broadcasts) may be made only for private use (for example for research, teaching).
EAÜ’s permission is not required in the following cases:
1. for the recording of musical works where all the authors (composer, lyricist, arranger) died more than 70 years ago;
2. for the recording of works of folklore (if they are not arrangements);
3. for recording works by authors who are not members of EAÜ or other organisations representing authors; permission must be sought directly from such authors.
Therefore, you should always check with EAÜ’s recording and online use department before making an audio or video carrier, whether the use of the work is free of charge and whether the authors of the work are represented by EAÜ.
- Online use of musical works
Online use of works includes the use of streaming services (e.g. Spotify, YouTube) and download services (e.g. iTunes).
EAÜ can give a permission to make the musical works of its members available to the public in the following ways:
- downloading the works;
- listening to the works via a streaming service;
- making the works available to the public for the purpose of public performance (for example playing background music in a shop);
- making the musical works used in audiovisual works available to the public (e.g. digital video rental).
The EAÜ does not have a joining or annual fee. EAÜ has the right to take a commission fee, which goes to cover the incurred expenses and the amount of which is established every year by the EAÜ general meeting. See more about the amounts of commissions here.
If one author has several heirs, they must agree on who of them will become a member of EAÜ. A corresponding written agreement must be submitted to EAÜ. The other co-heir(s) can become a client of EAÜ.
An heir who is a client of EAÜ has the same rights and obligations as an heir who is a member of EAÜ, except that, unlike an heir with membership status, cannot personally participate and vote in the general meeting of EAÜ and be elected to the board of the EAÜ or a member of the audit committee of the EAÜ.
If a work is co-authored with a foreign author, the two parties shall agree on which party’s home society the work will be registered in.
If the foreign author (there may be more than one) is affiliated with a music publishing agency, the EAÜ recommends registering the work with the foreign author’s home society. In this case, it is essential that you provide the registrant with your IPI (interested party information) number. You can find your IPI numer in authors portal.
If you register a work abroad, you could inform the EAÜ by e-mail (eau@eau.org) so that we can keep an eye on registrations in international databases.
When registering a work with the EAÜ, be sure to ask for the IPI number of all co-authors. This makes it easier to find the right person.
- In the case of rights of use for dramatic-musical works (e.g. opera, operetta, musical, ballet), the so-called grand rights
However, if an author wishes to have the EAÜ enter into an agreement with a theatre on his/her behalf, a separate contract shall be concluded with the EAÜ for the dramatic work.
- Use in advertising
It is up to the author to decide whether or not to associate his or her work with a promoted item, service, or event. If the author decides to grant permission, he/she shall enter into an agreement with the advertiser to receive payment. If the author wishes, he or she can also ask the EAÜ to take over all the administration and representation.
- Using sheet music and song lyrics
The author or his/her heir has the right to decide whether, and under what conditions, he/she wishes to authorise the distribution or publication (reproduction) of his/her sheet music or lyrics.
- Composition created specifically for a theatrical production
If an author creates a new musical work for a particular production, he or she can agree on the conditions for its public performance with the theatre. However, for use of a musical work that already exists, theatres shall seek permission from the EAÜ.
- Theme music for radio or television
The author may enter into direct agreements with television and radio broadcasters with relation to theme music created for a specific broadcast or programme. (I- punktina lisada:” Tunnusmuusika on muusika, mida kasutatakse korduvalt saate või programmi ajal (näiteks saate alguses või lõpus), et eristada saadet või programmi teistest saadetest või programmidest.)”
If the person who orders and the author of the theme music have entered into an agreement pursuant to which the person who orders has paid the author for both the creation and use of the proprietary rights of the theme music, the author is no longer entitled to claim any payment through the EAÜ for the use of that work on radio or television.
- Use in audiovisual works (films and series)
The author may enter into an agreement directly with a film producer or television service provider in the case of a musical work created for a specific film or series, and the agreed remuneration and payment arrangements apply only to the first copy. Subsequent copying (additional copies for the purpose of transmission, public performance or distribution on DVD, or other video media) is not covered by the right to enter into a direct agreement and the recording of the musical work shall be authorised by the EAÜ.
If a film is shown in public in a cinema, another place open to the public, or on television, the right to the public performance of the music used in the film can only be obtained through the EAÜ. The same applies to music created specifically for a movie.
- Performing musical works at a public meeting
The author has the right to decide for himself whether he wants to associate himself and his work with a meeting, demonstration, picket, procession or other demonstration taking place in a public place. If the author decides to give permission to present his work at such a public meeting, for the payment he must enter into an agreement with the organizer of the meeting.
EAÜ gives permissions for the author to perform musical works only at a public event, i.e. an entertainment or entertainment event, a competition, a show, a trade event or another similar event where people are together.
Translating or arranging the text of a musical work protected by copyright requires the consent of the author of the original work. Copyright is valid during the lifetime of the author and for 70 years after his or her death.
Permission is not required for translating and arranging folk songs, as copyright law does not apply to compositions using works of folklore.
How do I get permission?
The arranger/translator shall contact the author, heir, or publisher for signed permission. Contact details of the persons concerned can be obtained from the EAÜ. We can be particularly helpful if the person you are looking for is a member of the EAÜ. If the person is a member of another society, we will provide the applicant with the contact details of that society.
The author or the representative of his/her rights (heir, publisher) will agree with the arranger/translator whether the latter will receive remuneration for his/her arrangement/translation and, if so, the percentage of remuneration.
The author of the original work shall register the work with the EAÜ.
Arrangers and translators cannot fill in the registration form themselves (i.e. they cannot present themselves as translators or arrangers of the work), the heir and publisher shall forward to the EAÜ the permission to register the work.
For translations or arrangements where permission has not been sought or obtained but which are nevertheless distributed, neither the translator nor the arranger shall acquire any right of authorship. This means that they do not have the right to publicly present themselves as the author of a translation or arrangement.
The work shall clearly indicate the person who owns the copyright in the work. The © sign has lost its former significance and there is no longer any obligation or need to use it under Estonian copyright law. The © sign is used purely out of habit.
Copyright can be expressed, for example, in the following manner: ‘Copyright: Jüri Kass, 2021’, which could be supplemented by ‘All rights reserved’.
Registration of copyrighted musical work adaptations (arrangements) through the EAÜ user interface can only be done by the original author(s) of the original work. This means that an arranger cannot register their arrangement through the EAÜ user interface on their own. However, if the arranger provides EAÜ with a written authorization signed by the original authors (usually composers) stating that they agree to the adaptation and registration of their work with EAÜ, then EAÜ can proceed to register the respective adaptation or include it in the database. This authorization must explicitly state whether the arranger is entitled to compensation for the use of the arrangement and specify the amount of their compensation share.
A pseudonym is a name that an author uses instead of their real name to conceal their true identity. A pseudonym may also be used for the same purpose as a trademark – to distinguish their music (or, in the case of a trademark, their service or product) from others. Registering a pseudonym that overlaps with a registered trademark (or even a well-known trademark) with EAÜ is possible if the trademark owner consents to it.
The Copyright Act does not use the terms ‘cover’ and ‘covering.’ However, in practice, a cover should be understood as a rendition made from an already recorded and published original work, i.e., a treatment of the original work.
This person has two roles: he or she is both the performer and the author. As a performer, he or she may agree on the fee and other conditions with the organiser of the event. However, as an author – if he or she is a member of the EAÜ – he or she must obtain permission from the EAÜ to make his or her work public, i.e. enter into a licence agreement with the EAÜ and pay royalties through the EAÜ.
Even if the author-performer is not a member of the EAÜ, not all the works he or she performs are necessarily his or her own. For example, the author of a melody may not be a member of the EAÜ, but the author of the lyrics is. Therefore, he or she still has to enter into an agreement with the EAÜ.
A work created through joint creative activity can either constitute an indivisible whole (joint authorship) or consist of parts, each of which also has independent significance (collaborative authorship). The relationships among co-authors in exercising copyright, including the distribution of royalties, are determined by their agreement. In the absence of such an agreement, all authors jointly exercise copyright over the work, while royalties are divided equally among them.
In the case of musical works in which two or more individuals have participated in its creation as joint authors or collaborators, these individuals should agree, before registering the work with the Estonian Authors’ Society (EAÜ), on their respective roles in creating the work (who is the composer, who is the lyricist, who is the arranger) and how the collected royalties will be distributed among them: either based on an automatic royalty distribution key or according to specific percentages. If such prior agreement is not in place, authors can establish it when registering the work with EAÜ, as the registration of the work must be confirmed by all the original authors of the work.
If over time a new version of a musical work is created, involving more or different authors compared to the original version, it is possible to register such a version with EAÜ as a distinct version from the original.
The Copyright Act does not use the term ‘sampling.’ However, in several music genres such as hip-hop and R&B, as well as in electronic and experimental music, sampling has become a popular technique. A sample is a portion of a recording of a previous musical work used in creating a new musical piece. Therefore, sampling can be defined as the copying of parts of a previous audio recording and using them in a new work. A technique similar to sampling is interpolation or replay, where a part of a previous work is played or sung again to be used in a new composition.
Sampling and replaying implicate the rights of the original author, as well as the rights of performers and phonogram producers, in addition to copyright. Therefore, an individual who wishes to use a pre-existing work in their new composition, where the copyright and related rights have not expired, must obtain permission from the author of the original work and, in the case of sampling, from the specific performer and phonogram producer.
The Copyright Act provides an exhaustive list of situations in which copyrighted works can be used freely, i.e., without permission and without payment. In general, it is permitted to use the works of others freely for personal use, as well as for educational and scientific purposes. However, even in such cases, it is necessary to ensure that the specific use does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
There is no minimum threshold defined by law for the use of portions of someone else’s work and/or audio recordings without permission and without payment. The Supreme Court has ruled that even a very short portion, such as a few seconds of a work (including a two-beat musical segment), can be protected by copyright, and its use without the author’s permission may be prohibited if it reflects the author’s individuality and reveals their free and creative choices.
The Copyright Act allows for the free quotation of copyrighted works, but only in a motivated amount and while ensuring the obligation to convey the correct meaning of the quoted work as a whole, provided that the author’s name, the work’s title, and the source of publication are acknowledged.
The purpose of using a sample is to extract the quoted work from its original context and to give it a new meaning within a new work. Therefore, it is not the quantity of the quoted work but the obligation to convey the correct meaning of the quoted work as a whole that practically makes the use of the quotation exception in the case of musical works impossible.
No, besides copyright, when using a musical work in an audiovisual work, neighboring rights, so-called, must also be taken into account – the rights belonging to the phonogram producer and performer, which are managed by the Eesti Fonogrammitootajate Ühing and the Eesti Esitajate Liit.
