In our last article we touched on the fact that ECCO is moving toward the administration of Related Rights, which will open up a new stream of music royalties within the OECS territories administered by ECCO, which would directly benefit performers on sound recordings and phonogram producers.

The reality of music within our region is that most music professionals wear multiple hats, so it’s likely that if you’re already a songwriter member of ECCO, once the collective management organization begins administering Related Rights, your membership class may double or triple. After all within the OECS region it’s not uncommon for an artist to also be a songwriter or a phonogram producer.

Now that ECCO is moving towards administering Related Rights (also referred to as Neighbouring Rights), you’ve probably started seeing the term phonogram producer more often. But who is a phonogram producer anyway?

 Considering our culture within the Caribbean region to refer to studio owners, mixing engineers, mastering engineers and recording engineers as producers, we think it is most important to clarify who constitutes a phonogram producer, and therefore who exactly will make up this new member class once ECCO begins to administer Related Rights.

The World Intellectual Property Organization (WIPO) defines a phonogram producer as “the person who, or the legal entity which first fixes the sounds of a performance or other sounds.” Meanwhile, SWISSPERFORM, the Related Rights collective management society in Switzerland notes that phonogram producers fund the recording and/or the production of the sound carrier at their own economic risk.

Simply put, phonogram producers are the entities or individuals who finance the creation of the sound recording and are therefore the owners of the sound recordings. In larger territories like the US and UK, the phonogram producer is usually the record company or record label.

If we consider the process of recording music track, it would be safe to state that the phonogram producer (sound recording owner) is the individual or entity who pays, or is responsible for paying, the expenses related to the creation of the sound recording, including but not limited to the following:

• Hire and pay sessions musicians
• Pay for studio time
• Hire and pay for the services of the recording engineer
• Hire and pay for the services of the mixing and mastering engineer(s)
• Payment of mechanical royalty license to the songwriters/publishers (the owner of the song for use of the song)

As evident, the phonogram producer should therefore not be confused with the music producer, or studio engineer. Of course there are situations where the artists or the studio producers could also be the phonogram producer. For instance the artists who funded the creation of his music recording would also be the phonogram producer. Alternatively, the studio producer could also be the phonogram producer if for example, no funds were exchanged to compensate for the use of his studio for the recording process, and he also handled the recording, mixing and mastering of the recording himself and was not financially compensated.

As demonstrated above, with music practitioners performing several roles, an understanding of what constitutes a phonogram producer is vital.

References:

WIPO via http://www.wipo.int/treaties/en/text.jsp?file_id=289757#P71_3633

SWISSPERFORM via http://www.swissperform.ch/uploads/media/Distinction_executive_-_musical_producer.pdf

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