Copyright confusion leaves Basotho musicians fighting for control of their music

RETHABILE MOHONO

MASERU-For Puseletso Seema, the fight over the value of her music began decades ago.

For Selloane Thakanyane, it has unfolded in a very different era – one of social media, digital recordings and online performances.

Yet, despite the generations separating the two musicians, their experiences point to the same enduring problem in Lesotho’s creative industry: many artists still do not fully understand the copyright attached to the music they create or record or perform.

Seema, one of the country’s veteran musicians, has spoken about confronting her producer over royalties in the 1980s, saying she was given just 18 cents.

Decades later, Thakanyane found herself being told to stop performing a song she had recorded after Penya Play Productions asserted that it owned the copyright.

The two cases are different and should not be treated as identical disputes.

But together they expose a question that continues to confront musicians: when an artist creates or performs a song, who actually owns the rights to it?

In Thakanyane’s case, the dispute centres on Kea U Rata.

A letter from Penya Play Productions, signed by its CEO Teboho Mosamo, states that the song was written and composed by Thaabe Letsie/Penya Play Productions, which the company identified as the copyright holder, and recorded by Thakanyane.

The letter says Penya Play Productions had granted Thakanyane the right to perform the song.

However, following Thakanyane’s public endorsement on social media of statements made by Cheez Beezy, whom Penya Play Productions said had breached contractual obligations with the company, the production company terminated her performance rights to the song with immediate effect.

Thakanyane was instructed to stop performing Kea U Rata, including at live shows, broadcasts and online streaming, and to remove recordings and videos of the song from her social media platforms and websites.

The correspondence puts into sharp focus a distinction that can easily be lost in the excitement of making music: recording or performing a song does not necessarily mean owning its copyright.

And according to Advocate Moeti Marai, Legal and Licencing Manager at the Lesotho Copyright Society of Authors and Artists (LESCOSAA), understanding that distinction is essential for artists.

Marai says intellectual property refers to creations of the human mind, including literary and artistic works, which are protected by law and give creators control over how their work is used.

For musicians, that protection is provided principally under Lesotho’s Copyright Order of 1989 and Copyright Regulations of 2015.

The law, he explains, gives musicians both economic and moral rights over their work.

Economic rights include the right to reproduce, distribute and communicate a work to the public, including through performance and broadcasting. They also include the right to create adaptations, translations, arrangements or other transformations of the work.

Moral rights, meanwhile, give an artist the right to claim authorship and to object to distortion, mutilation, modification or other treatment of the work that could prejudice the artist’s honour or reputation.

For an artist, therefore, creating a song is only the beginning.

Understanding who owns it, who contributed to it, what rights have been transferred and what another person is legally allowed to do with it can determine whether the artist retains control over the creation.

That is where the difference between an assignment and a licence becomes important.

Marai says an artist can transfer economic rights to a record company through either an assignment or a licence, but the two arrangements have fundamentally different consequences.

An assignment transfer’s ownership of the rights being assigned and, under Section 15 of the Copyright Order, must be made in writing and signed by both parties.

A licence, on the other hand, gives another party permission to exploit the work for an agreed purpose without transferring ownership of the underlying copyright.

For artists, the distinction can be critical.

An artist may give another party permission to use or exploit a work without giving away ownership of the copyright itself.

But where an assignment has been made, ownership of the rights being assigned is transferred.

This is why the words contained in an agreement can matter just as much as the music itself.

Marai cautions that an artist cannot simply challenge a binding contract because they did not fully understand its terms.

A legally enforceable agreement generally requires identifiable parties, agreement between them, lawful and sufficiently certain terms, legal capacity, genuine consent, proper execution and signatures, and an applicable legal framework.

The implication for musicians is clear: understanding an agreement before signing it is critical.

For those who later find themselves in disputes over ownership, documentation can become their strongest defence.

Marai says musicians should keep split sheets and timestamped records, including early drafts and demo recordings created during the development of a song.

They should also preserve original lyrics, composition notes, studio and project files, stems, metadata, emails and messages concerning the creation of a song.

Contracts with producers and co-writers, publishing and recording agreements, royalty statements, invoices and payment records can also help establish ownership and the rights agreed between the parties.

Even evidence of first publication or release, screenshots of unauthorised use, URLs and dates of infringing online material, social media posts, streaming information and evidence of downloads, sales or monetisation can become important when ownership is contested.

In a dispute, what an artist remembers may not be enough.

What was written down, signed, dated and preserved can become far more significant.

For Seema, however, the issue of what artists receive from their music is not new.

Her account of receiving 18 cents after confronting her producer over royalties in the 1980s offers a glimpse into the difficulties faced by musicians of her generation.

Her experience also demonstrates why understanding copyright is not simply a legal exercise.

It can directly affect an artist’s livelihood.

The music industry has changed since Seema’s early years.

But the questions surrounding ownership and payment remain.

And while today’s artists have access to platforms that allow music to reach audiences far beyond Lesotho, the basic principles of copyright still matter.

This is where LESCOSAA has a role to play.

Marai says LESCOSAA is Lesotho’s collective management organisation for authors and artists. It was established under Section 31 of the Copyright Order and is mandated to protect and promote the interests of rights holders, including through the collective administration of copyright, licensing, and the collection and distribution of royalties.

The organisation can administer specified rights on behalf of artists, monitor the use of protected works, license users and collect royalties.

This means an individual musician does not necessarily have to negotiate separately with every radio station, broadcaster, business or other commercial user of their music.

LESCOSAA’s role also extends to enforcement and awareness.

The organisation has worked with the Lesotho Mounted Police Service to sensitise officers about copyright law and licensing, recognising that effective protection requires not only legislation but institutions capable of enforcing the law.

Yet Marai believes the system itself needs to evolve.

His first proposed reform is to modernise the Copyright Order of 1989 so that it reflects the realities of the digital age.

Young artists increasingly release and distribute music through streaming platforms and social media, creating forms of exploitation and infringement that were not contemplated when the existing law was introduced.

Another emerging challenge is artificial intelligence.

Marai says Lesotho needs clearer rules on whether AI-assisted or AI-generated works should receive copyright protection and how much human creative input should be required before a work qualifies for protection.

But while the legal framework needs to keep pace with technological change, Marai says greater public sensitisation is equally important.

He believes LESCOSAA needs greater capacity to conduct public awareness programmes.

Without widespread understanding of copyright among artists, producers, promoters, broadcasters and the public, even strong legal protections can remain largely theoretical.

That may be the most important lesson emerging from the experiences of musicians such as Seema and Thakanyane.

The problem is not necessarily that Lesotho has no laws protecting creative works.

There is a legal framework that recognises economic and moral rights.

There are regulations governing copyright.

And there is a collective management organisation tasked with protecting and administering the rights of authors and artists.

The challenge is ensuring that artists understand those rights, document their contributions, enter contracts knowingly and have institutions capable of enforcing the law when those rights are violated.

The experiences of Seema and Thakanyane show why that matters?

Seema’s story comes from an earlier generation of musicians and centres on her account of seeking royalties and receiving 18 cents.

Thakanyane’s experience is from a younger generation and centres on a dispute over the right to perform Kea U Rata, after Penya Play Productions asserted ownership of the copyright and withdrew her performance rights.

The circumstances are different.

But both stories leave artists with an important lesson: creating, recording or performing music does not by itself answer the question of who owns the copyright.

That answer can depend on who wrote the work, who contributed to it, what rights were agreed upon, whether those rights were licensed or assigned, and what evidence exists to establish the arrangement.

For musicians, copyright is therefore not something to think about only when a dispute arrives.

It begins at the point of creation.

A split sheet signed at the beginning of collaboration may later help establish who contributed to a song.

A dated demo may help establish when a work existed.

A contract may determine whether an artist retained ownership or transferred economic rights.

A royalty statement may show what was paid.

A message or email may help establish what the parties understood when the work was created.

These may seem like small details when a musician is eager to get into the studio.

But when relationships break down, they can become the difference between an allegation and evidence.

For an industry built on creativity, the irony is difficult to ignore.

Artists spend years learning how to write songs, compose music, perform and entertain audiences.

Yet many still enter the industry without a clear understanding of the legal rights that give those creations value.

Seema and Thakanyane come from different generations, but their experiences demonstrate that copyright literacy remains an unfinished conversation in Lesotho’s creative industry.

The music may change.

The technology may change.

The platforms may change.

But unless artists understand what they own, what they are licensing and what they are assigning, disputes over music ownership will continue to follow them.

The question, ultimately, is not simply who sang the song.

It is who owns the rights, what was agreed, and what evidence proves it.

For Basotho musicians, knowing the answer before the first note is played may be just as important as the music itself.