“JERUSALEMA CHALLENGE” CHALLENGED: INTERNATIONAL COPYRIGHT PROTECTION

It was all fun and games until, following recent reports, the record company Warner, with which Master KG is under contract, demanded license fees for the use of the song in the videos.¹ It is against this background that this piece will seek to discuss international copyright laws and relate them to the events described above.

International Copyright Laws

Based on the premise that intellectual property rights are territorial; meaning that they are offered and governed at the national level; one would think that for a creator/author of a copyrighted work to obtain international protection, they would have to register their work for copyright protection in multiple jurisdictions. However, this is not the case. There are international treaties and conventions, which are international agreements that provide protection for copyrightable works.

The World Intellectual Property Organization (WIPO) administers several international treaties that cover copyrights and its related rights. One of these is the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention). The Berne Convention is the most important international treaty that addresses international protection for copyright,² and is based on three basic principles; which are;³

1. Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of “national treatment”). 
2. Protection must not be conditional upon compliance with any formality (principle of “automatic” protection). This means that one’s work is protected by virtue of its creation.
3. Protection is independent of the existence of protection in the country of origin of the work (principle of “independence” of protection). If, however, a Contracting State provides for a longer term of protection than the minimum prescribed by the Convention (50 years from the end of year in which the author died) and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.

The Berne Convention awards authors both economic and moral rights in their works. However, it also allows certain limitations and exceptions on economic rights, i.e., cases in which protected works may be used without the authorization of the owner of the copyright, and without payment of compensation.⁴ These limitations, commonly referred to as “free uses” of protected work, are provided for under articles 9(2), 10, 10bis, and 11bis(3).

Of interest to this piece, article 9(2) provides that it shall be a matter for legislation in the countries of the Union (i.e. contracting states) to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

Application to the “Jerusalema Challenge”

Following the second principle that governs the Berne convention, copyrights exist in Master KG’s song. As such, in light of the first principle, seeing that the song originated from one of the Contracting States to the Berne Convention (South Africa), all other Contracting States must give the same protection to the work as the author would be granted by their own jurisdiction.

Copyright protection awards the rights holder economic rights and moral rights, and exploitation of these rights without the authority of the rights holder amounts to infringement. Looking at this instance, the “Jerusalema Challenge” called for its participants to dance to the song, and later upload their videos on various social media platforms, where it would be seen by many. These actions exploited Master KG’s economic right (as discharged by the record company Warner) to make reproductions of his song, with most being done without his/his representatives authorization.

However, not all reproductions/uploads amounted to infringement. As provided above, article 9(2) of the Berne Convention states that reproduction that does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author, is fair/free use of that work; and as such, does not amount to infringement.

Companies and entities that used the song to advertise their goods and services; or any use of the song that led to any commercial gain, without rightful authorization, fall outside of this exception. Therefore, the record company Warner, with which Master KG is under contract, has the right to demand license fees for the use of the song in those particular videos; but only in jurisdictions that are party to the Berne Convention.

Conclusion

Given the increase in online-viral challenges, we should be careful, especially corporations, companies and other entities, with the use of other people’s creative work. When in doubt of whether or not your actions may amount to infringement, it is best to seek out permission from the copyright owner or better yet, refrain from using their work.