Analyses: To Publish or Not To Publish: A Critical Consideration of the Role of the Music Publisher Today

• Jurisdiction: South Africa
• Date: 25 May 2019
• Author: J Joel Baloyi
• Citation: (2012) 24 SA Merc LJ 218
• Pages: 218-232
• Published date: 25 May 2019

To Publish or Not To Publish:A Critical

Consideration of the Role of the Music Publisher

Today

J JOEL BALOYI

University of South Africa

1 Introduction

One of the exclusive ‘bundle of rights’ that the owner of the copyright in a

literary or musical work has is ‘publishing the work if it was hitherto

unpublished’ (s 6(b) of the Copyright Act 98 of 1978). The f‌irst owner of the

copyright in a work is its author (s 21(1)(a)). The author remains the owner

of copyright in the work until he or she transfers ownership to another by way

of assignment or through testamentary disposition, or where the copyright is

transferred by operation of law (s 22(1)). The exclusive right to publish a

work is therefore the author’s, unless the latter assigns this right to another

person. The right to publish a work is not one that vests in some other entity,

such as those called ‘publishers’ in the music industry, with whom the author

has to negotiate to get his or her works published. It is a right that vests in the

author, and music publishers may own or control it only if transferred to them

by the author. This is important to note because many authors of copyright in

musical works (commonly known as ‘composers’, though the term

‘composer’ is itself not used in the Copyright Act) are under the impression,

or they are made to believe, that they need to have a music publisher to get

their musical works published. (In this analysis the expression ‘authors of

musical works’ and the more popular expression, ‘songwriters’ are used

interchangeably.)

In fact, though, authors of musical works do not need a music publisher to

get their works published – they can publish their works themselves, because

the right to publish the work vests exclusively in them. But if they lack the

necessary f‌inancial and other resources to publish their works, they can

engage another entity that has the ability to do so, to publish the works. In this

regard, Ruth Towse, dealing with the economic role of copyright law, states:

‘Publishers are accorded copyright so as to encourage the dissemination of

authors’ works, presumably on the assumption that authors themselves could

not or would not be able to do it to the extent that it is socially optimal’

(‘Copyright and Economic Incentives: An Application to Performers’ Rights

in the Music Industry’ (1999) 52 Kyklos 369 at 372–3).

This, Towse argues, results in a situation where, through the royalty system,

the author and the publisher are tied into a ‘joint entrepreneurship’ which

‘ensures a shared interest in promoting the published work . . . by forcing

them to share risk’ (at 373). From this it is clear that music publishers perform

a very important role in the life of songwriters – or do they?

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(2012) 24 SA Merc LJ 218

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