Mechanical Rights and the
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The mechanical copyright is the copyright in the specific recording itself, as issued by the record company. The mechanical copyright is created when the recording is first made, and that date (or the subsequent release date) will be the date from which the copyright period for the recording is calculated.
Recording contracts should identify the ownership of the mechanical copyright in the recordings to be made, as the definition of some of the rights will depend on it. If an artiste signs a record contract direct with a major record company, invariably it will own the mechanical copyright in all the recordings that artiste makes. The same will apply to a contract which an artiste signs with a production company, although the production company will licence the use of the mechanical copyright on to the record company as the basis of the production agreement.
There is also an income to be derived from the public performance of the recordings themselves, being the phonographic performance income. This is independent of the public performance income attributable to the recorded composition, which is collected by PRS. The owner of the mechanical copyright in the recording is the legal recipient of phonographic performance income.
Phonographic performance income collection is only calculated by broadcasts precisely according to the performances of each individual artiste's recordings. The major record companies will receive an allocation of the overall income, and will have the means of distributing how much is applicable to any particular recording.
What does the MCPS do?
"The professional link between copyright owners and music users".
MCPS provides royalty accounting services which benefit and protect owners of copyright music. Grants licences for making recordings of its members' musical works and collects and distributes the royalties due.
If a recording features a song which is copyright protected then the act of making the recording is an infringement.
Making Records
The right to make a recording of a copyright work is called the mechanical right. Mechanical rights is the right to record a piece of music. Anyone who records a copyright musical work needs permission and this will normally be given in return for a royalty being paid to the owner of the song. The royalty payable to the copyright owner is usually negotiated with the person using the music, except in the case of music recorded for retail sale (record, cassettes, cd, video), where the owners of the song are members of MCPS and there is a set royalty rate laid down under a licensing scheme. MCPS represents a single agent for member copyright holders to get their money, and a single agent for users of copyright works to obtain licences.
Audio Product (AP) Scheme.
Copyright holders can refuse licences to people to record their works. But in general works are available to make recordings of for retail sale but at a fixed royalty rate.
There are 3 different agreements within the AP scheme, but it is AP2 which is of relevance to us here. AP2 refers to small record companies.
Getting a licence
For each record a person intends to release a licence is needed. Get an AFL (application for licence) form from the MCPS. An AFL is only needed for the first run of a record, after which a AFR(re-press)L is needed. AFLs must be filled in fully and accurately, including the record's unique catalogue number and the amount intended for sale. AFL is required for any amount no matter how small.
MCPS members retain the right to refuse the recording of a work where no previous recording has previously been made available. This restriction is only occasionally placed, usually where the copyright owner wishes to reserve the first recording opportunity for a particular performer. MCPS always asks its member whether it wants to lift such a restriction. However, if you wish to seek the assurance of a first recording licence (FRL) for a previously unrecorded work in advance of submitting an AFL.
What do the licenses allow?
AFL allows copies of musical works to be put on record which can then be manufactured and distributed for retail sale to the public for private use. Retail sale includes sales at places such as concerts and over market stalls, as well as through record shops. Private use means that for example sale should not normally be for the purpose of rental or copying in any way. You can sell record to libraries provided you do not make an additional charge for rental.
Making copies of your own work
If you are the copyright owner of the works being recorded and also a member of MCPS, you should supply an AFL and MCPS will issue a licence, but make no claim for the royalties.
If you are recording your own compositions, but are not a member of MCPS, under the AP2 agreement you must still send in an AFL so that MCPS can give you and your manufacturer and distributor the security of a Notification of No Claim. You may feel this procedure is unnecessarily troublesome, however, it gives the manufacturer some assurance that the product being manufactured is not being done so without the permission of the copyright owner. It also means that when MCPS comes across the recording through its comprehensive monitoring procedures, it knows that it does not have to approach you for an AFL.
Manufacturing and Distribution
MCPS makes arrangements with manufacturers and distributors to help insure that unlicensed products do not get made or put onto the market. They will be in breach of copyright of the proper licences are not in place, so if the AFL (or AFRL) specifies one which is not on the list of recognised manufacturers or distributors this may delay or even prevent a licence being issued. You should check whether your manufacturer and distributor are on that list.
Under the AP2 agreement you must also use your best endeavours to ensure that your manufacturer and distributor co-operate fully with MCPS, in particular that they provide every facility to allow MCPS to check the pressings made for you.
Where the quantity of records manufactured is more or less than the number you ordered, let MCPS know. You may be entitled to a credit note if the quantity is less, and if more the MCPS may send a supplementary invoice. MCPS carefully monitor the information sent to them from manufacturers.
Notices and Credits on records
Each new record released should have a unique catalogue number. If different formats of the same record are released (cd, vinyl, etc.) it is helpful to use the same basic number, but add different letters to the beginning or end - eg DBRV001, DBRCD001.
Any record which contains a musical work licensed by the MCPS must bear these notices.
the initials M.C.P.S.
On each side of the record, a notice of the effect that "ALL RIGHTS OF THE PRODUCER AND OF THE OWNER OF THE WORKS REPRODUCED RESERVED. UNAUTHORISED COPYING, HIRING, LENDING, PUBLIC PERFORMANCE, AND BROADCASTING OF THIS RECORD PROHIBITED." on the label (or where that is impossible, the sleeve or insert, or on the record itself), the title and writers or arrangers of the music and the lyrics of each work. Where MCPS has given you the name of a UK publisher, this should also be shown if possible.
Paying Royalties:
The Royalty Rate
The mechanical royalty rate is 8.5% of the publisher dealer price (PDP) of the recording (excluding VAT and other taxes). PDP means the highest price published by you or your distributor (wholesale price?). If you have no PDP, but instead you have published a fixed or recommended retail price, the royalty rate is set at 6.5% of that retail price (excluding VAT and other taxes).
If there are works on the record which MCPS members do not own, or are in the public domain, you will not pay MCPS for the use of these and your invoice will reflect this. At a future date MCPS may learn that a work on which it has not claimed royalties is in fact owned by one of its members. MCPS will then issue an invoice for the royalties due.
The 'Royalties Option'
Under the AP2 scheme there are certain circumstances in which it may be possible to exercise the royalties option under which at a future date you may reclaim part of the royalties on records you have not sold or are otherwise disposed of. This option is only available:
on an invoice by invoice basis where the royalties generated by a particular order for records amounts to either more than £500 or more than £50 per musical work. If you submit a series of AFLs or AFRLs which only when added together exceed these limits, the option does not apply; and if you inform MCPS in writing at the time of submitting the AFL or AFRL; and
if you can satisfy MCPS that you can maintain accurate accounts, identify the total number of sales and returns of each record by catalogue number and format and are able and willing to submit detailed reports to MCPS in the form industry-standard magnetic media, according to a computer specification which is available from MCPS, on request within 21 days of the end of each 3 month period.
Promo Copies
Copies of records which are manufactured and distributed to promote sales of other copies of the same record are not subject to an MCPS royalty provided that certain conditions are met. They include; at the time of manufacture the records must be prominently marked with a non-removable and non-erasable notice carrying the words 'PROMOTIONAL COPY - NOT FOR SALE'. Please note that it is not sufficient that these words are added afterwards, or that they appear only on the sleeve or packaging or only on the record. They must appear prominently on both; the record must be provided bona fide (honestly, in good faith) and free of charge to a broadcaster, disc jockey or critic or similar party for them to broadcast, play in public or review or use in some other bona fide promotional situation. Record given free to retailers are not promotional copies; within 21 days of the end of each calendar month, you must send MCPS a statement showing for each record, by a licence number, catalogue number and title, the number of promotional copies which you have distributed. You must also keep books and record which will allow MCPS to check that these statements and your claims about the manufacture of promotional copies are broadly accurate.
See also Sound Recording Practice by John Borwick, 1994 OU Press, Chapter 29.
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