Episode 117: Gift and Curse of Music – Transcript

September 5, 2017
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HOST:

One of the basic jobs of every government is to protect property rights. So if you own a piece of land, or you build a house – no one can just come and take them from you. No one can eat the fruit off of the trees you planted, unless you want to share. Property rights are pretty clear cut. At least when it comes to things – like land and houses – but ownership and protection of that property isn’t so clear when it comes to ideas — such as an image or a song? Here in the United States, images and songs are protected by copyright laws. But that isn’t the case everywhere. Producer Ian Coss spent some time in Haigi and he has this story about Powersurge and Haiti’s fight for copyright. We call the story, The Gift and the Curse of Music. 

STORY:

SERGE TERNIER: I grew up not too far from the Champ Mars, and Champ Mars is where they have the national carnival every year. And I remember growing up, I used to hear the floats going by from my house. The way it’s set up, it’s a route. And along that route you have multiple trucks loaded with speakers. And on each truck is a popular band. I’m not gonna forget, there was one year Sweet Mickey, our former Haitian president, he would wait until 5 or 6 in the morning for his float to go by. So he would make everyone stay on Champ Mars wait for him to come.  And one year as he was coming, there was a shoot out, and we had to run for our lives. I believe I was around 8 or 9 years old and I was scared out of my mind. But it was good times. So Carnival is kind of like a love story for me and that’s really how I got into production. Like my first love was for Carnival.

THIS IS SERGE TERNIER

SERGE TERNIER: Also known as Powersurge. I’m a music producer, composer, author.

AND AS A KID, TERNIER SAYS HE NEVER THOUGHT HE’D BE THE ONE TO WRITE THE SONGS THAT BLASTED OUT OF THE PASSING TRUCKS. BUT JUST LAST YEAR HE PRODUCED HALF A DOZEN CARNIVAL SONGS, WORKING WITH ARTISTS LIKE FRAP LA, TROUBLE BOY, AND EVEN WYCLEF JEAN — PROBABLY THE MOST INTERNATIONALLY RECOGNIZED ARTIST OF HAITIAN ORIGIN. BUT DESPITE THAT SUCCESS…

SERGE TERNIER: Well first of all a musician is not even recognized as a real job here in Haiti. You’re just nothing in eye of the law.

NOW IN MY EYES, POWERSURGE LOOKS THE PART OF A BIG-SHOT RECORD PRODUCER. THE FIRST TIME I MEET HIM IN PORT-AU-PRINCE, HE’S WEARING THE SAME SHADE OF MAROON FROM THE COLLAR OF HIS POLO DOWN TO THE LACES ON HIS SNEAKERS. AND HIS BEARD IS SCULPTED TO A SHARP EDGE.

HE SAYS HE WANTS TO SHOW ME SOMETHING NEAR THE NEIGHBORHOOD WHERE HE GREW UP. SO WE CLIMB INTO HIS CAR, A SILVER MERCEDES SUV. IT LOOKS REAL GOOD FROM THE OUTSIDE. INSIDE, TURNS OUT THERE’S CAR TROUBLE.

THE A/C IS BROKEN, WHICH IN PORT-AU-PRINCE, IN AUGUST, IS BAD NEWS. TERNIER PULLS OVER AT A MECHANIC’S SHOP. THE AIR COMING OUT OF THE VENTS IS NOW SLIGHTLY COOLER, BUT A/C OR NOT, WE HAVE PLACES TO GO.

SERGE TERNIER: I’m gonna go show you something.

WE’RE DRIVING THROUGH THAT NEIGHBORHOOD WHERE TERNIER GREW UP – WHERE THE CARNIVAL TRUCKS STILL PASS BY EVERY YEAR.

SERGE TERNIER: This area right here is called ‘Pues Mars Champ,’ and as a sign of love and respect, they did a mural for me.

THERE AREN’T MANY WORKING STOP LIGHTS IN PORT-AU-PRINCE, AND THE TRAFFIC IS AS THICK AS THE MIDDAY HEAT.  EVENTUALLY WE BREAK THROUGH, AND TURN DOWN A SIDE STREET, LUKEWARM AIR STILL BLASTING FROM THE DASHBOARD. AND THEN WE’RE THERE.

THE MURAL COVERS THE SIDE OF A TWO-STORY BUILDING. IT SHOWS A GROUP OF YOUNG HIP-HOP ARTISTS POSING IN A LINE. ABOVE THEM, THEIR PRODUCER POWERSURGE FRAMES THE WHOLE SCENE, HIS TWO HANDS POINTING STRAIGHT OUT FROM THE WALL, CONFIDENT. IS THIS THE SAME GUY WHO JUST TOLD ME HE’S READY TO QUIT THE MUSIC BUSINESS BECAUSE HE CAN’T MAKE A LIVING AT IT?

SERGE TERNIER: Music is probably 10% of my income (laughs). Yeah.

IAN COSS: So you were just working with Wyclef Jean, and you can barely make 10 percent of your income.

SERGE TERNIER: Wyclef paid me; let’s get that on the record.

IAN COSS: But I just mean as indicator of your success. I mean you’re a serious producer in the industry, and yet it’s that hard.

SERGE TERNIER: Oh yeah absolutely. It’s so sad when I meet an upcoming producer and he’s so excited and so full of life and joie de vivre, and he wants to ‘make it,’ and he’s talking to me as somebody who made it. And I’m like, “Dude I’m actually on my way out.” There’s nothing, there’s literally nothing in this industry that’s keeping me from not quitting, other than the passion.

{MUSIC: Leve’l Pi Wo}

THIS IS THAT SONG POWERSURGE PRODUCED LAST YEAR FOR WYCLEF JEAN. SO HERE HE IS, AT THE TOP OF HIS FIELD IN HAITI, AND YET AT THE SAME TIME ON THE VERGE OF QUITTING THE MUSIC BUSINESS ALTOGETHER — THINKING OF MOVING TO FLORIDA, MAYBE EVEN GOING BACK TO SCHOOL. AND TO UNDERSTAND WHY, WE HAVE TO TALK ABOUT COPYRIGHT.

WELL, FIRST WE HAVE TO STOP THIS SONG AND THAT’S BECAUSE HERE IN THE UNITED STATES, WHERE WE ARE PRODUCING THIS PODCAST,  A SONG BY WYCLEF JEAN IS PROTECTED BY COPYRIGHT, MEANING WE CAN’T REALLY PLAY IT WITHOUT PERMISSION.

ALEX SAYF CUMMINGS: Copyright is really interesting because it goes back to censorship actually.

ALEX SAYF CUMMINGS IS GOING TO HELP US SORT THIS OUT.

ALEX SAYF CUMMINGS: …Associate professor of history at Georgia State University. I focus on the history of intellectual property.

NOW CUMMINGS IS AN EXPERT ON US COPYRIGHT LAW. SO WE’RE GOING TO USE A BIT OF THAT HISTORY TO PUT HAITI’S STORY IN PERSPECTIVE. AS HE WAS SAYING, THE FIRST COPYRIGHT LAWS WHICH WERE WRITTEN IN ENGLAND IN THE 1600S WERE NOT ABOUT PROTECTING ARTISTS AT ALL. THEY WERE LITERALLY ABOUT WHO HAD THE RIGHT TO MAKE COPIES, WHICH AT THAT TIME, WAS THE PRINTER’S GUILD.

ALEX SAYF CUMMINGS: Then later it evolved into something that was actually owned by the artist or writer, but in the beginning it was actually meant to control speech.

FAST FORWARD.  THE FIRST TWO INDEPENDENT NATIONS IN THE AMERICAS WERE THE UNITED STATES IN 1776 AND HAITI IN 1804. AND AT THAT TIME, JUST  LIKE CUMMINGS SAID,  COPYRIGHT IS GENERALLY UNDERSTOOD AS THE RIGHT OF CREATORS – LIKE ARTISTS AND INVENTORS – TO CONTROL THEIR OWN WORK.

ALEX SAYF CUMMINGSACT: In America, copyright is baked into the constitution. It actually very specifically says authors and inventors should have the right to benefit from their works, but it only covers books, maps and charts.

NOW THE FIRST HAITIAN CONSTITUTION OF 1804, MAKES NO MENTION OF COPYRIGHT. THERE ARE A FEW LINES ABOUT PROTECTING COMMERCE AND AGRICULTURE — BUT NOTHING ON COPYRIGHT SPECIFICALLY, AND THIS CONTRAST BETWEEN THE TWO COUNTRIES HAS ONLY BECOME MORE STARK OVER TIME.

IN 1832 THE US CONGRESS EXPANDED COPYRIGHT LAW TO COVER SHEET MUSIC, SO THAT COMPOSERS COULD CONTROL AND PROFIT FROM THE SCORES FOR THEIR WORK. THEY COULDN’T OWN THE SOUND ITSELF, JUST THE NOTES ON THE PAGE. AND THAT WORKED PRETTY WELL UNTIL THE END OF THE CENTURY, WHEN RECORDING TECHNOLOGY CAME ALONG.

WITH A GRAMOPHONE, CONSUMERS DIDN’T NECESSARILY NEED SHEET MUSIC TO HEAR THEIR FAVORITE SONGS AT HOME; THEY JUST NEEDED THE RECORD.

ALEX SAYF CUMMINGS: So it’s very interesting, John Philip Sousa, Victor Herbert, all these big composers come to Congress in 1905, 1906 and they’re like: Hey guys, people are going out there making wax cylinders, they’re making discs — they’re making money off of our music, but we’re not getting paid for it. And there’s actually this really funny moment where John Philip Sousa, who is the famous band leader, he is testifying before Congress, and the congressman asks him: so you could compose better for more money? And he’s like: yes, I could, I could compose better for more money.

CONGRESS AGREED, AND SO BEGINNING IN 1909, IF AN ARTIST WANTED TO RECORD A SONG THAT SOMEBODY ELSE WROTE, THEY WOULD HAVE TO PAY  A FEE TO ‘LICENSE’ IT. SO WHEN POWERSURGE OR SOMEONE ELSE TALKS ABOUT ‘LICENSING’…

VOX: licensing, licensing

THIS IS WHAT HE’S TALKING ABOUT.

{SOUND: Gramophone needle dropping, recording of “From Maine to Oregon March.” Sound of restaurant}

BUT THE OTHER ISSUE WITH RECORDING TECHNOLOGY IS THAT MUSIC WAS SUDDENLY PLAYING EVERYWHERE – IN BARS, HOTELS, ON THE STREET. AND NATURALLY, MUSICIANS WANT TO GET PAID FOR THAT TOO, SO THEY JOINED FORCES TO FORM THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS, OR ASCAP. AND IN 1917 ASCAP WENT TO COURT, OVER THIS SONG:

{MUSIC: “From Maine to Oregon March”}

ALEX SAYF CUMMINGS: Here’s how it happened: You’ve got restaurants and bars and retail establishments that are playing music. You come in, you have dinner, there’s music playing. And the composers say: Hey, you guys are playing music at your restaurant and that’s an attraction for people to come there and eat, you’re making money off of us, you should pay us.

A SINGLE CASE, BETWEEN COMPOSER VICTOR HERBERT AND AN UPSCALE MANHATTAN RESTAURANT CALLED SHANLEY’S, WENT ALL THE WAY TO THE SUPREME COURT.

ALEX SAYF CUMMINGS: Basically the court rules in favor of the composers. This is why every single bar and every single restaurant in America has a little ASCAP sticker on the front of it, because if you’re going to use music to make money and attract customers, you need to pay us.

{MUSIC: “From Maine to Oregon March”}

HERBERT V. SHANLEY ESTABLISHED A POWERFUL LEGAL PRECEDENT: THAT ALL BUSINESSES WHO BENEFIT FROM THE USE OF RECORDED MUSIC, SHOULD IN PRINCIPLE, PAY FOR THAT MUSIC. IN THE 1930S, THAT LEGAL LOGIC IS APPLIED TO RADIO, MEANING ALL RADIO STATIONS IN THE US ALSO HAD TO PAY EITHER ASCAP, OR ANOTHER PERFORMANCE RIGHTS ORGANIZATION, FOR THE MUSIC THEY PLAYED ON THEIR AIRWAVES. THEN WITH ALL THIS MONEY COMING IN FROM RADIO STATIONS AND RESTAURANTS, ASCAP COULD TURN AROUND AND PAY OUT MONEY TO INDIVIDUAL MUSICIANS. WE CALL THOSE PAYMENTS ‘ROYALTIES,’ WHICH WE WILL ALSO BE HEARING ABOUT FROM POWERSURGE…

VOX: royalities, royalties, royalities

NOW WE’VE GOT LICENSING, ROYALTIES, ASCAP, COPYRIGHT — I REALIZE THIS IS GETTING COMPLICATED, SO I WENT TO SOMEONE WHO WORKS IN THE BUSINESS, FOR SOME PROFESSIONAL ADVICE.

MELISSA BERNIER: My name is Melissa Bernier, I’m an entertainment attorney, and I work mostly in the Haitian music industry.

WHEN SHE’S ADVISING CLIENTS HERE IN THE US, BERNIER BREAKS THE WHOLE COMPLICATED PROCESS DOWN INTO TWO STEPS:

MELISSA BERNIER: You have the obtaining of the rights and then you have the enforcement of the rights. If I created a song I would fill out an application with the US copyright office, and send them a copy of the song, and they would send me back a certificate that says I am the valid owner of this song.

THAT’S STEP ONE, BUT…

MELISSA BERNIER: Well the copyright bureau itself, at least in the United States, is not an enforcement agency; it’s really kind of like a bank where you keep copyrighted material.

SO ONCE IT’S IN THE BANK, HOW DO YOU ACTUALLY MAKE MONEY FROM THAT SONG AND KEEP OTHER PEOPLE FROM MAKING MONEY FROM IT?

MELISSA BERNIER: Now what I would do with that song is I would take it if I was registered with ASCAP and I would deposit it with ASCAP, and ASCAP will monitor when it’s being played, who’s playing it, how much I need to get, and then I would get paid royalties that way.

AND BECAUSE ASCAP HAS RELATIONSHIPS WITH OTHER RIGHTS ORGANIZATIONS IN ALMOST EVERY COUNTRY ON EARTH, WHEREVER OR WHENEVER YOUR SONG GETS PLAYED, YOU SHOULD GET PAID.

BUT I SAID ALMOST…

SERGE TERNIER: Whoo, have you ever been to improv? The music industry in Haiti is pretty much the same thing.

THIS BRINGS US BACK TO HAITI, AND THE STORY OF POWERSURGE. YOU SEE…

SERGE TERNIER: Structurally, if we’re thinking how a music industry is structured in other countries, in Haiti it’s a little different.

FOR MOST OF ITS HISTORY, HAITI HAS HAD NO COPYRIGHT OFFICE, AND NO PERFORMANCE RIGHTS ORGANIZATION. IN FACT, WHEN YOU LOOK AT ASCAP’S WEBSITE, YOU CAN SEE THEY LIST A PARTNERING ORGANIZATION FOR EVERY COUNTRY IN THE CARIBBEAN – THEY HAVE PARTNERS IN JAMAICA, THE DOMINICAN REPUBLIC, GRENADA – EVERYWHERE EXCEPT FOR HAITI AND CUBA. THE COUNTRY IS LIKE A BLACK HOLE ON THE MAP OF INTELLECTUAL PROPERTY: NO COPYRIGHTS OR PAYMENTS GO IN, NO COPYRIGHTS OR PAYMENTS COME OUT.

MELISSA BERNIER: I almost want to say that copyright is a non-existent issue in Haiti – I don’t want to say non-existent because people know that it exists, but as far as the real implications of them, I haven’t seen any of that.

WHEN I FIRST ARRIVED IN PORT-AU-PRINCE, I COULD SEE WHAT SHE WAS TALKING ABOUT. JUST STEP OUT ON THE STREET, AND YOU HEAR MUSIC, EVERYWHERE.

IT PUMPS OUT OF PASSING CARS. FROM STEREO COMPONENTS WIRED TOGETHER ON THE SIDEWALK. MOSTLY, THOSE STEREOS ARE TUNED TO ONE OF THE CITY’S MANY RADIO STATIONS. THE CATCH IS THAT RADIO STATIONS IN HAITI DON’T HAVE TO PAY FOR A LICENSE TO PLAY MUSIC. NEITHER DO RESTAURANTS OR BARS. SO THERE’S NO MONEY FOR MUSICIANS THERE.

THE SAME GOES FOR SELLING ALBUMS. SMALL MUSIC STALLS POP UP ON THE SIDEWALK EACH DAY WITH THE MORNING TRAFFIC, AND FOR ABOUT 75 CENTS THEY’LL SELL YOU A CHEAP BURNED CD OF THE LATEST HITS. I SPOKE WITH ONE YOUNG VENDOR, WHO INTRODUCED HIMSELF ONLY AS WEEKONSON. AND HE WAS PERFECTLY CLEAR ABOUT WHAT HE WAS SELLING:

VOX: Pirat, paske kopi, li pa original. Ou konpran?

HE SAID ‘PIRATE’: PIRATED CDS, COPIES, MEANING NO MONEY GOES TO THE ARTIST. HALF OF THAT MONEY HE KEEPS FOR HIMSELF, AND HALF HE PAYS TO A DISTRIBUTOR DOWNTOWN. I ASKED IF THE POLICE EVER GIVE HIM TROUBLE.

VOX: No, yo pa fe sa…

NOPE, NO TROUBLE. I SAY SOMETHING ABOUT HOW THIS MUST JUST BE NORMAL BUSINESS IN HAITI, BUT HE CORRECTS ME: NO, IT’S NOT NORMAL TO HIM. IT’S JUST ACCEPTED.

IT HAS BEEN THIS WAY SINCE THE FIRST 78RPM RECORDS WERE PRESSED IN HAITI IN 1937. RECORDED MUSIC IS BASICALLY UP FOR GRABS: COPY IT, PERFORM IT, PLAY IT ON THE RADIO, USE IT FOR AN AD, ANYTHING GOES. THE FACT IS, HAITI’S HISTORY HAS BEEN A LONG STRUGGLE FOR SURVIVAL AND INDEPENDENCE — FROM SLAVERY, FROM INVASIONS, FROM DICTATORS, FROM NATURAL DISASTERS — AND PROTECTING THE RIGHTS OF MUSICIANS, HAS SIMPLY NEVER BEEN A PRIORITY. WHICH RAISES THE QUESTION: HOW DO MUSICIANS MAKE MONEY?

SERGE TERNIER: Here in Haiti, the way people make money with music, there’s different channels. The number one of course is performance.

AGAIN THIS IS SERGE TERNIER, AKA POWERSURGE.

SERGE TERNIER: The other source of revenue in the Haitian music industry is sponsorship. As popular as you get, major companies want to associate their brand with you. So they give you money for your projects or they give you money to use your image.

BUT AS A PRODUCER, TERNIER IS NOT USUALLY THE ONE UP ON STAGE PERFORMING. HE MAY HAVE HIS OWN MURAL, BUT HIS FACE IS NOT THE ONE YOU SEE UP ON THE BILLBOARDS ALL OVER TOWN, ADVERTISING RUM AND CELL PHONES. HE’S THE GUY IN THE STUDIO – WRITING THE SONGS AND MAKING THE BEATS – WORKING BEHIND THE SCENES. YOU COULD HEAR ONE OF HIS SONGS ON THE RADIO AND NOT EVEN KNOW THAT POWERSURGE HAD ANYTHING TO DO WITH IT, UNLESS YOU NOTICE THE LITTLE AUDIO TAG THAT HE SLIPS IN AT THE TOP, LIKE THIS…

{MUSIC: short clips of several songs w/ “Powersurge” tag}

HERE IT IS AGAIN…SEE WHAT I MEAN NOW? THAT TAG IS ABOUT AS CLOSE AS TERNIER CAN GET TO AN EFFECTIVE COPYRIGHT IN HAITI: SOMETHING THAT SAYS ‘I MADE THIS.’ BUT IT DOESN’T HAVE MUCH LEGAL STANDING, WHICH IS WHY TERNIER WAS VERY EXCITED TO LEARN THAT THE LAW IN HAITI WAS FINALLY GOING TO CHANGE.

Narrator speaking in French: “B, H, D, A. Pour garantir le droit d’auteur en Haïti.”

BHDA (pronounced bay-aj-day-ah), OR IN ENGLISH, THE ‘B.H.D.A’ IS THE HAITIAN BUREAU OF AUTHOR’S RIGHTS. IT IS THE NATION’S VERY FIRST COPYRIGHT OFFICE, AND IT WAS ESTABLISHED IN 2005.

HERE IS EMILINE PROPHETTE, DIRECTOR OF THE BHDA, SPEAKING IN A PRESS CONFERENCE – LITERALLY EXPLAINING HOW COPYRIGHT WORKS AND WHY MUSICIANS SHOULD CARE ABOUT IT; SHE’S SAYING THAT THE BHDA WILL PROTECT THEIR WORK, AND COLLECT MONEY FROM THOSE WHO USE THAT WORK.

COMPOSERS IN THE UNITED STATES WON THAT RIGHT EXACTLY ONE HUNDRED YEARS AGO, IN THE CASE OF HERBERT V. SHANLEY. COMPOSERS IN HAITI, LIKE POWERSURGE, HAVE NEVER ENJOYED THAT RIGHT – EVEN ON PAPER – UNTIL NOW. THE QUESTION OF COURSE, IS WHETHER THOSE PAPER LAWS WILL TURN INTO ACTUAL PAPER MONEY. AND AS A YOUNG PRODUCER, STILL IN COLLEGE ACTUALLY, TERNIER WAS PART OF AN EFFORT TO DO JUST THAT.

{MUSIC: “Dekole” beat, fades up} 

SERGE TERNIER: As I was in Florida working on my degree, I was also working with artists in Haiti, and one was J Perry.

THIS WAS JUST A FEW YEARS AFTER THE COPYRIGHT OFFICE WAS CREATED IN HAITI IN 2005, AND IT LOOKED LIKE THINGS WERE REALLY ABOUT TO CHANGE IN THE MUSIC BUSINESS, AND FOR AN UNLIKELY REASON.

{SOUND: Newscast about 2010 Haitian earthquake}

ALONG WITH DEATH, AND DEVASTATION, THE 2010 EARTHQUAKE IN HAITI BROUGHT A WAVE OF INTERNATIONAL ATTENTION, AND POLITICAL CHANGE.

THAT YEAR, A POP SINGER KNOWN AS SWEET MICKEY — ONE OF THE VERY ARTISTS THAT SERGE TERNIER USED TO FOLLOW AROUND IN THE CARNIVAL PARADES AS A KID – HE WAS ELECTED PRESIDENT OF HAITI. IN POLITICS HE WENT BY THE NAME MICHEL MARTELLY, BUT HE WAS STILL A MUSICIAN AT HEART, AND WHO BETTER TO ENFORCE COPYRIGHT LAW?

IT SEEMED LIKE THE STARS WERE ALIGNING FOR COPYRIGHT REFORM IN HAITI.

SERGE TERNIER: And that’s why I came back. I didn’t want to stay in the States and work with another label I didn‘t know. And instead I decided to come back to Haiti and work with the label that was home, in Haiti.

OTHERS FELT THE CHANGE COMING TOO. HERE’S THE ATTORNEY, MELISSA BERNIER AGAIN:

MELISSA BERNIER: Definitely, I thought there would be a large intellectual property push. And I think that a lot of musicians had the same hope.

CARL-FREDERICK BERHMANN: But of course, we all felt it, because our president was a musician. who would benefit from it? He is. The guy has 15 or 20 albums, so every time his music would play he would get returns.

THIS IS CARL-FREDERICK BERHMANN, HE IS THE OWNER OF BAOLI RECORDS, THE LABEL THAT POWERSURGE WAS WORKING WITH IN HAITI.

CARL-FREDERICK BERHMANN: At the time when we felt that things would come to a point where we did have collection in Haiti.

HE’S TALKING ABOUT ROYALTY COLLECTION, MEANING THAT RADIO STATIONS WOULD ACTUALLY START PAYING TO PLAY MUSIC, AND CELL PHONE COMPANIES WOULD START PAYING TO USE SONGS IN THEIR COMMERCIALS– ALL GUARANTEED BY LAW. THIS POSSIBILITY EVEN DREW THE INTEREST OF MAJOR INTERNATIONAL RECORD LABELS, INCLUDING WARNER MUSIC.

SERGE TERNIER: And some of the key people contacted Baoli records and they came to the studio and I was there. And at some point we were having a conversation and she said: I wish you guys could come and have a presentation for us, cause we’re really interested in your music. And I was like, well it’s not impossible, we can try to set it up.

{MUSIC: “Dekole”}

CARL-FREDERICK BERHMANN: It was 2011, the year after earthquake, and we met with the president of the whole Warner Group.

SERGE TERNIER: We had Warner Israel, Warner Latin America, Warner France, everyone was at that meeting. And they proposed a licensing deal to make Baoli Records a partner, to become Warner Music Haiti.

AT THE TIME, TERNIER WAS BRIMMING WITH OPTIMISM. IN A 2012 INTERVIEW FOR HIS COLLEGE PAPER, HE SAID, QUOTE: “We’re going to be the first people doing publishing and licensing in Haiti. That is huge; that is big. It’s going to change lives; it’s going to change kids’ lives, artists’ lives. Now in Haiti, an artist will not die poor.”

END QUOTE. FITTINGLY, THAT FIRST HIT HE PRODUCED WITH JPERRY FOR BAOLI RECORDS WAS CALLED “DEKOLE,” WHICH MEANS: “TAKE OFF.”

BUT THE WHOLE DEAL DEPENDED ON COPYRIGHT ENFORCEMENT.

SERGE TERNIER: So we got that in the bag. It was ready to be signed. Only Haiti didn’t have laws to enforce licensing.

REMEMBER WHAT MELISSA BERNIER SAID ABOUT COPYRIGHT: IT’S A TWO STEP PROCESS. JUST OBTAINING RIGHTS IS MEANINGLESS, UNLESS THERE IS SOMEONE TO ENFORCE THEM

SERGE TERNIER: Bottom line is, we couldn’t do anything, because there’s no laws to protect intellectual property here in Haiti.

MICHEL MARTELLY, THE POPSTAR PRESIDENT, LEFT OFFICE IN 2016 IN THE MIDST OF A POLITICAL CRISIS. NO FURTHER COPYRIGHT REFORMS WERE EVER ACCOMPLISHED, AND TO MY KNOWLEDGE, NO ROYALTIES HAVE EVER BEEN PAID OUT TO AN ARTIST IN HAITI. BUT WHAT ABOUT THE BHDA – HAITI’S NEW COPYRIGHT OFFICE THAT IS SUPPOSED TO BE PROTECTING ARTISTS?

SERGE TERNIER: I don’t want to go into it.  It’s a joke. To me BHDA is a joke. How they say in Haiti: “Un bel fleur sans odeur,” a beautiful flower with no smell, with no odor, with nothing inside of it.

MY CALLS TO THE BHDA WERE NOT ANSWERED. I VISITED IN PERSON BUT WAS TOLD THAT NONE OF THE STAFF WERE AVAILABLE TO SPEAK WITH ME.

SEVERAL MONTHS AFTER FIRST MEETING POWERSURGE, AND DRIVING AROUND PORT-AU-PRINCE WITH NO AIR CONDITIONING, I CALLED HIM FOR AN UPDATE.

SERGE TERNIER: Hey how are you man?

IAN COSS: I’m doing OK, so how are things? You’re back in Florida right, settled in?

SERGE TERNIER: Yeah, I’m back in Florida; I’m here. It’ll take a little adjusting.

IAN COSS: And you’re keeping the producing going from there?

SERGE TERNIER: I’m still doing it, but there’s no real activities lately. It’s up in the air right now. I don’t want to completely give up on music, but at the end of the day I have responsibilities. So I have to do something that’s going to be sustainable.

I ASK HIM A FEW QUESTIONS ABOUT COPYRIGHT REFORMS – ROYALTIES, LICENSING – BUT THE CONVERSATION FEELS KIND OF STIFF. I THINK HE’S TIRED OF THE SUBJECT AFTER ALL THESE YEARS OF TALK, WITH NO RESULTS.

SERGE TERNIER: I gave up Ian; I’m done. I’m so tired. I feel like I’ve wasted all my life in this industry for no reason. (pause)

IAN COSS: But you do have a hell of a lot of good music to show for it…

SERGE TERNIER: Thank you sir, but that is pretty much all I have to show for it. (laughs)

FOR TERNIER, COPYRIGHT IS OBVIOUSLY ABOUT MORE THAN MONEY. IT’S ALSO ABOUT RECOGNITION — THAT THERE IS VALUE IN HIS WORK, AND THAT VALUE SHOULD BE PROTECTED — BOTH IN HAITI AND THE WORLD AT LARGE. BUT IN ALL MY CONVERSATIONS WITH TERNIER, THE BIG UNANSWERED QUESTION FOR ME WAS THE WHAT IF?

WHAT IF US-STYLE COPYRIGHT LAW WAS SUDDENLY ENFORCED IN HAITI? WHAT IF THE POLICE DID SWEEP THE STREETS CONFISCATING PIRATED CDS? AND WHAT IF RESTAURANTS AND RADIO STATIONS DID HAVE TO PAY FOR THE PRIVILEGE OF PLAYING MUSIC? THE MUSICIAN IN ME WANTS THESE THINGS TO HAPPEN, BECAUSE I BELIEVE MUSICIANS HAVE A RIGHT TO PROFIT FROM THEIR WORK. BUT THE SKEPTIC IN ME ALSO HAS TO WONDER: WHO WOULD IT ACTUALLY BENEFIT? WHO WOULD IT HURT? WOULD IT EVEN WORK? SO BASICALLY WHAT I WANT TO DO IN THESE LAST FEW MINUTES IS TO KIND OF UPEND THE ASSUMPTION WE’VE BEEN WORKING WITH THE WHOLE TIME, WHICH IS THAT COPYRIGHT IS THE ANSWER, RIGHT — COPYRIGHT IS A GOOD THING. AND TO DO THAT WE NEED TO GET DOWN IN THE WEEDS AND REVISIT SOME HISTORY, SO BEAR WITH ME. WE’LL START WITH ENTERTAINMENT LAWYER MELISSA BERNIER; I ASKED HER WHAT IT WOULD LOOK LIKE IF COPYRIGHT LAW WERE ACTUALLY ENFORCED IN HAITI:

MELISSA BERNIER: I think in the beginning there would be a lot of resistance and chaos, because it stands right now it’s like a weird fit.

IAN COSS: Who would benefit most from copyright in Haiti? I guess part of me wonders if it would benefit the top tier of Haitian artists if you’re thinking about something like licensing, and that it might kind of make it harder to get into the industry?

MELISSA BERNIER: Yeah that’s definitely a real concern, because it’s hard enough for newer artists to break into the industry, and how artists break into the industry is through covering other people’s songs. So if there is this licensing element that gets introduced into the industry, it is going to sort of cripple newer artists to kind of make their way up. So that’s one of the real concerns in implementing some sort of copyright enforcement structure in Haiti.

IAN COSS: What about royalties from radio play? Like in the US, bars, restaurants pay money to ASCAP TO  play music in public. Does that seem realistic in Haiti?

MELISSA BERNIER: Would I like to see that in Haiti, yes, is it realistic, probably not. I don’t think that is intuitive to business owners in Haiti — that in particular would be met with a lot of resistance. But would I love to see it? Absolutely. Would artists like to see it? I am almost positive they would. But the enforcement of that and the realistic implications of it, talk about a weird fit.

AND TO BE CLEAR, THE CONCERNS BERNIER RAISES ARE ALSO ISSUES HERE IN THE US. ROYALTY COLLECTION IS FAR FROM PERFECT AND LICENSING REQUIREMENTS CAN LIMIT CREATIVITY BY NEW ARTISTS. NOW WHEN I BROUGHT THESE SAME CONCERNS TO ALEX SAYF CUMMINGS, THE HISTORIAN OF COPYRIGHT LAW, HE GAVE ME AN ENTIRELY DIFFERENT KIND OF SCEPTICISM. REMEMBER THAT IDEA HE STARTED WITH: THAT COPYRIGHT BEGAN AS A MEANS FOR POWERFUL GROUPS LIKE GUILDS AND GOVERNMENTS TO CONTROL THE SHARING OF CULTURE. WELL, IN A WAY THAT REMAINS TRUE.

ALEX SAYF CUMMINGS: There’s a certain romantic ideal of copyright — it’s the individual genius, who creates something unique and original. And that’s the way we tend to think about copyright in America, but most copyrights are controlled by massive corporations who have their own agendas.

AND AS HE EXPLAINED, THAT CORPORATE AGENDA IS A BIG PART OF THE REASON WHY WE SEE THESE COPYRIGHT REFORMS HAPPENING IN HAITI, AND IN MUCH OF THE DEVELOPING WORLD. SO WHAT DOES A MEGA-CORPORATION IN THE US CARE ABOUT ALL THIS STUFF. WELL IT HAS TO DO WITH TRADE. YOU SEE IN THE 1970S…

ALEX SAYF CUMMINGS: There’s this anxiety over industrialization or really deindustrialization that, well we don’t make shit any more. We don’t make trucks. So let’s try to focus on what we can do, which is pharmaceuticals, movies, music. That’s the argument for very  strong copyright. We’re America, we make Disney, that’s what we do.

IN THE 1980S AND 90S THIS ARGUMENT TRANSLATED INTO FOREIGN POLICY. THERE ARE A SERIES OF TRADE DEALS MADE AT THIS TIME, AND MOST IMPORTANT FOR THIS STORY IS SOMETHING CALLED TRIPS, THE “TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS.” IT WENT INTO EFFECT IN 1995 AND IT BASICALLY SAID: IF YOU WANT TO BE PART OF THE WORLD TRADE ORGANIZATION, YOU NEED TO ENFORCE COPYRIGHTS: DISNEY’S COPYRIGHTS, SONY’S COPYRIGHTS, EVERYBODY’S COPYRIGHTS. THE TRIPS AGREEMENT SET A TEN YEAR DEADLINE FOR COMPLIANCE, AND LO AND BEHOLD, HAITI CREATED ITS COPYRIGHT OFFICE EXACTLY TEN YEARS LATER, IN 2005.

THIS IS WHERE THE STORY GET EVEN MORE COMPLICATED. BECAUSE IN ALL MY CONVERSATIONS WITH POWERSURGE AND OTHER ARTISTS, IT WAS OBVIOUS THAT THERE WAS A GENUINE HUNGER FOR COPYRIGHT LAW IN HAITI. BUT AT THE SAME TIME, YOU KIND OF HAVE TO WONDER WHOSE RIGHTS THIS SYSTEM IS DESIGNED TO PROTECT.

ALEX SAYF CUMMINGS: I guess what I would say is the US position is not at all concerned about  the rights of those people. It’s just about the rights of Sony and Disney to make as much money as they can. So The kind of questions that those musicians and artists in Haiti have, that’s a very legitimate argument they’re making — yes they should be protected, absolutely. But it’s not necessarily what the US is fighting for or supporting.

IN FACT ONE OF THE CRITIQUES OF THE TRIPS AGREEMENT IS THAT IT AMOUNTS TO A MASSIVE REDISTRIBUTION OF WEALTH FROM POOR COUNTRIES TO WEALTHY COUNTRIES. BECAUSE ULTIMATELY WHO HAS THE MOST TO GAIN FROM COPYRIGHT LAW? IT’S THE SONYS AND THE DISNEYS OF THE WORLD. IF HAITIAN RADIO STATIONS ACTUALLY PAID FOR ALL THE MUSIC THEY PLAY, A LOT OF THAT MONEY WOULD GO STRAIGHT OUT OF HAITI, AND INTO THE POCKETS OF THE MAJOR LABELS AND BIG NAME ARTISTS. AFTER ALL, JUSTIN BIEBER AND BEYONCÈ GET AIRPLAY THERE TOO. AND THAT IS THE OTHER SIDE OF COPYRIGHT IN HAITI. IT CAN GIVE, AND IT CAN TAKE AWAY TOO. TERNIER GETS THAT; HE KNOWS COPYRIGHT IS COMPLICATED, IT’S MESSY, IT’S POLITICAL – AND MAYBE THAT’S WHY HE WAS READY TO WALK AWAY FROM THAT FIGHT.

{MUSIC: “Banm Fos” fades up}

BUT A FEW MONTHS AFTER THAT LAST PHONE CONVERSATION, THINGS WERE LOOKING UP. A SONG THAT POWERSURGE PRODUCED WAS JUST FEATURED IN THE SOUNDTRACK TO CARS 3, THE NEW DISNEY/PIXAR FILM — AND DISNEY WILL DEFINITELY BE PAYING TO LICENSE THAT SONG. IT SHOWS HOW SURGE IS IN MANY WAYS ONE OF THE FORTUNATE FEW IN THE HAITIAN MUSIC BUSINESS: THOSE WHO HAVE MANAGED TO GET SOME OF THEIR MUSIC OUT TO INTERNATIONAL AUDIENCES — THROUGH FILM, RADIO, AND OUT THERE THE MUSIC CAN ACTUALLY MAKE MONEY THROUGH ROYALTIES OR LICENSING. BUT STILL, WHEN CARNIVAL SEASON ROLLS AROUND AGAIN, HE IS BACK IN THE STUDIO, MAKING SONGS FOR HIS AUDIENCE BACK IN HAITI, FOR THE PEOPLE WHO PAINTED THAT MURAL IN HIS HOMETOWN — EVEN IF THERE ISN’T MUCH MONEY IN IT.

SERGE TERNIER: Because at the end of the day, it’s not just about the money, it’s about the music too.

THE TITLE OF HIS CARNIVAL TRACK THIS YEAR, IS “BANM FOS,” MEANING: ‘GIVE ME THE STRENGTH.’

SERGE TERNIER: I can’t shy away from music, man. Music is the answer. It’s the problem and the answer: the gift and the curse of music.

HOST:

The Gift and Curse of Music – Haiti’s fight for copyright, was reported and produced by Ian Coss. Tony Gannon and I co-edited the story and Tony was our senior producer. Our Post Production Editors are Kirsten Jusewicz-Haidle and Rachael Cain.

Our engineer was Howard Gelman at KQED Radio in San Francisco.  Original music in this episode was composed by Ian Coss, with additional music provided by Serge Ternier aka Powersurge. This episode was produced in collaboration with the podcast Afropop Worldwide.

Special thanks to the the organization Ayiti Mizik, which supported our research on the Haitian copyright system.

Each time we publish a new episode we send everyone who’s subscribed to our newsletter a behind scenes look at Life of the Law, that includes notes from our reporters and news about upcoming investigative reports. This week, Ian Coss shares his experience meeting up with musicians in Haiti and powering through the story. We’ve also put together a list of some of Powersurge’s best music… You can subscribe to our newsletter at lifeofthelaw.org.

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Next on Life of the Law…we’ll meet up in the studios of KQED to talk about copyright law and what some refer to as cultural colonialism.

 

That’s next on Life of the Law. Visit our website and make a donation to support investigative. Your support is important. I’m Nancy Mullane. Thanks for listening.

BEHIND THE SCENES with IAN COSS:

When I first traveled to Haiti in the summer of 2015, I had no intention of researching copyright law. But I was interested in music, so I started by visiting radio stations and recording studios around Port-au-Prince. It’s not the easiest place to navigate, but Serge Ternier was kind enough to pick me up at a restaurant near the city center. He was one of the first people I talked to, and copyright was clearly on his mind. That first conversation — which provided a lot of the material for this story — hung in the back of my mind over the next several weeks. I saw that the BHDA (the Haitian copyright office) was holding a big press conference about music licensing, I heard musician after musician relate the same struggles that Ternier encountered, and I met with the founders of Ayiti Mizik, an association for professional Haitian musicians that has been lobbying the government on these very issues. Ternier wasn’t the only one with copyright on his mind.

The challenge with this kind of story, is that there is an endless web of legal and historical context surrounding it. And every character in the story has personal and financial stakes involved, so to simply recount a personal narrative and present it as journalism would be in some ways misleading. We’ve tried to gesture towards some of the big thorny questions surrounding copyright in Haiti — why is it happening now? Who would it benefit most? Would it even work? — while still presenting the issue through the eyes and experience of a single person.

LINKS

https://www.youtube.com/watch?v=QwlEM7ENRWs

“When you register your work with the BHDA, you protect the work, and the BHDA will seek out money for you from those who utilize your work.”

BHDA Video: https://www.youtube.com/watch?v=lKBtiZWjqNs

Martelly press conference: https://www.youtube.com/watch?v=9RL7IQ5PMJQ

1995 Carnival: https://www.youtube.com/watch?v=pmUftn3EqUc

 

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