Business Law & Tax: October 2020

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BUSINESS LAW & TAX

OCTOBER 2020 WWW.BUSINESSLIVE.CO.ZA

A REVIEW OF DEVELOPMENTS IN CORPORATE AND TAX LAW

Never too late to knock on TikTok’s door over copyright

VIVE LA VIDEO

Tricky to distinguish between dance routines and •lip-synch posts as parody and therefore original Ilse du Plessis ENSafrica

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or the benefit of any adults reading this article, TikTok is a social network for amateur music videos, a global phenomenon that started in China as recently as 2016. What happens is youngsters use 13-second music clips that they can upload to TikTok and add their own little twists, which may take the form of a funky dance or lipsynch. Lots of other youngsters then watch these videos. It’s still way too early to tell whether anyone involved in this process goes on to get a life! Some TikTok videos become huge and there are a number of performers who

have become global stars with enormous followings and brand endorsements. The focus now seems to be shifting to copyright issues, as it should. An article that appeared in the IPKat blog entitled “TikTok Signs Copyright Licensing Agreements With Music Publishers” addresses some of these issues. The author, Hayley Bosher, makes some interesting points. Bosher suggests that Tik-

THE INTELLECTUAL PROPERTY ISSUES SURROUNDING TIKTOK ARE COMPLEX AND THERE MAY STILL BE SOME WAY TO GO

Tok can actually have a positive outcome for some musicians, in the sense the TikTok videos have the effect of pushing the original recordings up the charts. She lists as an example Lil Nas X’s (yes really, that’s the artist’s name) song Old Town Road which, after going viral on TikTok, holds the record for the longest-reigning Billboard Hot 100 No 1. The music industry and the collecting societies have been trying to negotiate a deal with TikTok for some time, and legal proceedings have been threatened. In July 2020, TikTok signed licensing agreements with certain independent distributors. This was followed up with news that TikTok had signed a copyright licensing agreement with the UK

/123RF — OPTURADESIGN National Music Publishers’ Association (NMPA). Earlier attempts aimed at reaching a copyright agreement ended up with a matter being referred to the UK Copyright Tribunal — the matter was subsequently withdrawn when the parties announced they would try arbitration. As for TikTok users, the terms and conditions they agree to when they upload content state that they remain owners of the copyright. But the rights they purport to grant are so broad and farreaching — there is talk such as unconditional, irrevocable, nonexclusive, royalty-free licences permitting use, reproduction, modification and adaptation of material — that Bosher feels they have the effect of “completely

undermining the entire music copyright system”. Bosher finally considers whether a 13-second video might be regarded as parody, which is significant because parody is sometimes regarded as an exception to copyright infringement. Bosher suggests a mere dance routine would probably not amount to parody, although an elaborate and funny lipsynch routine might. It seems clear that the intellectual property (and particularly copyright) issues surrounding TikTok are complex and there may still be some way to go. But the fact that they are being tackled should probably be regarded as a positive thing. Meanwhile, US President Donald Trump has made sure there are other, non-intellec-

tual property issues to consider. As many readers will know, Trump has been fixating on TikTok for a while. Whether this is because TikTok is Chinese-owned or because it is known to have hosted content that mocks Trump is not clear. But he does seem convinced that TikTok poses a security threat to the US, in the sense that it allows the Chinese state to access or harvest information about US citizens through their cellphones. The president has made big demands: find a buyer of TikTok’s US business or face a ban. Perhaps he sees TikTok as an election winner? The chances are we will be talking about TikTok for some time to come. Even those of us who aren’t singing or dancing along to it!


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