Music and Copyright

Lee Marshall, Simon Frith, Lee Marshall, Simon Frith

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136090585
• Edition: 2
• Topic: Media & Performing Arts
• Subtopic: Music & Business

Copyright lies at the very heart of the music business. It determines how music is marketed, artists are rewarded, and all the uses to which their work is put. And copyright claims and counter-claims are the source of recurring conflict: Who wrote what and when? Who owns these sounds? What are you allowed to do with them? Disputes about copying and theft are becoming ever noisier with digital technology and the new possibilities of sampling and downloading and large-scale piracy. This book has been written to explain the copyright system to non-legal specialists and to show why copyright issues are so fascinating and so important. Copyright is analyzed as a matter of philosophy and economics as well as law. It is approached from the contrasting perspectives of composers, performers, producers and bootleggers. Copyright law is seen to be central to the relationship between the global entertainment industry and local musical practices. The questions raised here are not just about music. They concern the very meaning of intellectual property rights in the context of rapid global and technological change. And they are not just about big business. They impinge on all our lives.

CHAPTER 1
Making Sense of Copyright

Simon Frith and Lee Marshall

The first edition of this book was published more than a decade ago, in 1993. As the original introduction argued, the book reflected growing professional and academic interest in copyright law. Two reasons were suggested for this interest: first, new technologies for the storage and retrieval of knowledge, sounds and images were posing complex problems for legal definitions of work, authorship and use; second, the related globalisation of culture was impelling multinational leisure corporations to seek the ‘harmonisation’ of copyright regulations across national boundaries. Either way, the legal concept of ‘intellectual property’ and its financial value had become an issue. For music industry analysts, in particular, a business that had been studied in the 1960s and 1970s as manufacture, producing commodities for sale to consumers, had come to be understood in the 1980s as a service, ‘exploiting’ musical properties as baskets of rights.

This was not then (and probably is not now) the way in which most people understood a music industry still routinely described as ‘the record business’, a business dominated by the major ‘record labels’. To this day, music business success is measured in record sales, music business problems by record sales decline. Musicians are more likely to celebrate writing a song or releasing a record than ‘creating a basket of rights’ and, for consumers, copyright law is undoubtedly an arcane and jargon-ridden area of interest. What are ‘mechanical’ or ‘neighbouring’ rights? Where is the ‘public domain’? What is the difference between ‘rights in performance’ and ‘performance rights’? Between the Berne Convention and the Rome Convention? Who, besides a few record company lawyers, cares?

If it does nothing else, we hope this book explains why you should. For anyone with any interest in music, copyright is vitally important, more important than any other concept in making sense of the variety of social practices that make up ‘the music industry’. Copyright provides the framework for every business decision in the industry. Who gets recorded? What do they record? How and where they are marketed? Who is allowed to use their song? Who makes money from this performance? Who is allowed to use their image? Who makes money from that? Will this song be heard on the radio? Used on a TV commercial? Feature in the background of a cinematic film? Can you get a ringtone of your favourite track? Can you arrange it? Sample it? Download it? Copy it for a friend? All these questions concern copyright. Copyright, one might say, is the currency in which all sectors of the industry trade.

Ignoring copyright thus means ignoring one of the key structural features of the music industry and this collection is intended to help students of popular music understand the vital role that copyright plays in what they are studying. This introduction will offer an idiot's guide to copyright terms while later chapters provide both an exploration of key theoretical assumptions and a discussion of how copyright affects everyday musical practices. No prior understanding of copyright is assumed — indeed, prior ignorance can be quite useful when approaching this topic because the aporias and contradictions of copyright can seem more apparent. As Jessica Litman once put it:

Although writers have suggested that members of the public find the idea of property rights in intangibles [like a piece of music] difficult to accept, there seems to be little evidence that members of the public find the idea of a copyright counterintuitive. Rather, the lay public seems to have a startlingly concrete idea of what copyright is and how it works, which has little to do with actual copyright law. (Litman 1991: 3–4)

At the time Litman was making a mildly ironic point about lawyers' capacity for arrogance and self-delusion. A dozen years later, as the Record Industry Association of America begins legal proceedings against random individuals for downloading tracks using peer-to-peer software (and the British Phonograph Industry threatens to follow the RIAA lead), the remark reads like a prescient and sober warning. There is now an even bigger gap between the lay and professional understanding of copyright as copyright holders dramatically increase its scope. Their remarkable success in lobbying governments for legal change, to put this another way, is due in no small part to the lack of public understanding of what the new laws imply. There is another kind of irony here. Most lay people (not least journalists) believe that digital technology is such a systematic financial threat to record companies and the artists signed to them that the various technological and legal attempts to prevent digital ‘theft’ have been in vain. In the first edition of this book, for example, most contributors wrote about sampling (the first copyright issue really to interest popular music scholars) as a new kind of composition process which would, in the end, necessitate new definitions of authorship, originality and the public domain. The views of someone like the Turtles' Mark Volman (on being sampled by De La Soul) seemed plainly anachronistic:

‘Sampling is just a longer term for theft … Anybody who can honestly say sampling is some sort of creativity has never done anything creative.’ (quoted in McLeod 2001: 89)

In the event, as Kembrew McLeod notes, by the beginning of the new century sampling was being regulated systematically by the ‘old’ copyright system, with ‘sample clearance houses’ emerging, used by both artists and labels to sort out sample licences and fees. By the end of the 1990s nearly all major publishing and recording companies had followed the lead of EMI and employed staff ‘whose sole job was to listen to new releases that may have contained samples of its property’ (McLeod 2001: 89). Clearing samples had become increasingly expensive and administratively time-consuming, which, in turn, had had a variety of effects on how sample-based music like hiphop is produced. For example:

When Public Enemy wanted to sample a bit of Buffalo Springfield's ‘For What It's Worth’, the group discovered that it would be cheaper for them to have the song's original vocalist Stephen Stills sing the part of the song they were going to sample.' (McLeod 2001: 94)

The history of sampling suggests another reason why musical copyright is an important issue to understand: the music business was the first sector of the entertainment industry to experience the ‘threat’ of digital technology, and has therefore been at the forefront of the campaign for new legislation to deal with it. There is a familiar story of unexpected technological consequences here: the industry's adoption of the digital format of CDs in the early 1980s, and its brilliantly successful campaign to persuade consumers to shift from vinyl to CD, can be said to have saved record companies from a serious economic crisis. But in storing music as bits of information, record companies were also undermining the material distinction between production and reproduction (or original and copy) on which copyright law rests. In retrospect it seems technologically inevitable that machines to play CDs would eventually be replaced by machines to play and write CDs, by devices that could retrieve digital-musical information for new uses.¹ It was for this reason that the Internet (a new means of distributing digital information) was immediately perceived as much more of a threat to record companies than to, say, book publishers or broadcasters, who have been slower in developing their use of digital technology.

These issues will be discussed further in the course of this book, but before laying out our guide to copyright terms, we would like to make one final point about the importance of rhetoric for copyright practice. A common theme of all the chapters here is that the legislative response to digital technology has not only vastly increased the scope of copyright but has also done so in a way which benefits corporate interests at the expense of those of both artists and consumers. What's being described here is a legislative trend that began with the World Intellectual Property Organisation (WIPO) Convention in Geneva in 1996. Signatories to the international treaties drawn up by the WIPO Convention in Geneva agreed to update their national copyright laws so as to give authors, performers, publishers and record companies the right to authorise and require payment for the distribution of their work on the Internet and other computer networks. The result in the USA was the Digital Millennium Copyright Act (DMCA) of 1998, which expanded US legislative protection for intellectual property to digital materials, and, in Europe, the EU Copyright Directive of 2001, which became law in the UK at the end of October 2003 as the Copyright and Related Regulations Act.²

There are three points to be made here about these laws. First, the chances are that most readers of this book will not have heard of them — even readers who are avid music makers and consumers. Copyright is not normally taken to be a topic of political or public interest. It is rarely written about in newspapers or featured in policy debate. This means, second, that the rationale of copyright laws and why they matter tends to be determined by the interest of the corporate lobbyists who have driven the legislative changes of the last decade.³ Our third point follows: while the corporate argument is framed as ‘bringing copyright law into line with the new environment’ (which is, indeed, a common sense thing to do), from an academic perspective what has actually happened is that the original principles of copyright have been surreptitiously put aside. A system that was originally framed by reference to the public good — it involved restrictions on the monopoly power of rights owners — has become a means of promoting private interests. What was once a system for ensuring public access to knowledge has now become a system, at least in the digital sphere, to prevent it — most obviously in the clauses making it illegal to attempt to circumvent electronic access controls even when accessing non-copyright material.⁴ The ‘burden’ of copyright law has been transferred from rights owner to rights user: whereas once the rights holder had to persuade a court that an ‘unauthorised’ use of their work actually damaged them, now the ‘illegal’ user has to persuade a court that there is some specific reason to excuse their breach. Who would have thought ten years ago, when the first edition of this book came out, that in 2003 US music consumers would be being prosecuted for how they used their computers in the privacy of their own homes?⁵

The questions discussed in this book, then, are neither arcane nor irrelevant to everyday life, and it is particularly important to understand copyright in terms that are not simply derived from rights owners' property claims but also consider the broader effects of copyright on creativity and the social circulation of ideas. In the course of an extensive investigation of the present state of US copyright law for the Atlantic Monthly, Charles C. Mann came to the conclusion that “rampant musical piracy may hurt musicians less than they fear. The real threat — to listeners and, conceivably, democracy itself — is the music industry's reaction to it” (Mann 2000). Such a threat, as is described in later chapters in this book, has a number of components, but two seem paramount.

On the one hand, recent legislation seems to extend the notion of copyright from getting paid for usage to controlling usage, thus raising questions about copyright as a means of censorship, a restraint on creativity, a way of restricting the supply of music, and so on. While music industry lobbyists rhetorically involve artists in their anti-down-loading campaigns, they cannot always disguise the tensions between composers and performers who want their works exposed as widely as possible (and who, like Janis Ian, see the Internet as a wonderful tool for promotion of their music) and record companies and publishers who want to keep tight control of their markets. In the words of Lawrence Lessig, copyright is ‘not speaking for those who create, but those who hold massive amounts of copyright’.⁶

On the other hand, recent legislation seems to elevate the fact of copying above either the intentions of the copier or the effects of the copy. One of the recurring themes of this book (as of most criticism of recent copyright legislation) is that the notion of ‘fair use’ — once essential to the copyright attempt to balance the interests of the authors and users of a work — has been systematically marginalised. This is the context in which Siva Vaidhyanathan, one of the most prominent academic critics of the DMCA, wrote as follows:

We make a grave mistake when we choose to engage in discussion of copyright in terms of ‘property’. Copyright is not about ‘property’ as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons. While, technically, it describes real property as well, it also describes a more fundamental public good that precedes specific policy choices the state may make about the regulation and dispensation of property. But we can't win an argument as long as those who hold inordinate interest in copyright maximisation can cry ‘theft!’ at any mention of fair use or users' rights. (Vaidhyanathan 2002: 5)

Vaidhyanathan goes on to call for academics to play a more active part in encouraging public debate about copyright issues. But, alas, if this is a field where conceptual clarity is called for above all, it is also a field in which such clarity is very hard to attain.

What is copyright?

If there is one thing upon which copyright scholars can agree, it is that copyright is very complex, and it can seem particularly mysterious to those approaching it from a non-legal background. In this section, we will outline some of its most important characteristics. Our approach here is descriptive and does not offer justifications or criticisms; these will emerge in later chapters.⁷ Indeed, it is perhaps advisable to read this section alongside the chapters in the first section of the book.

‘Copyright’ is a noun not a verb, a thing rather than an action: you cannot ‘copyright something’ (Litman 1991: 39). However, although copyright is a thing, its existence depends upon the existence of a work that is eligible for copyright. For this reason, copyright is said to subsist rather than exist. If a person writes a song (known in copyright law as a ‘work’, as are any other creations), then the song exists and the copyright of the song subsists in the song, but the copyright cannot exist without the song itself. It is extremely important to distinguish between the work and the copyright of the work — they are not the same thing. If you buy a CD, then you own the physical disc and the recordings of the musical works on it. You can listen to the works, lend the CD to your friends, write rude comments all over the sleeve notes or use it as a Frisbee. You own the thing as a material, physical object. You cannot, however, copy it because you do not own the copyright to the work. (And here is the first complication: these days you can, of course, copy it — ‘burn’ its content onto a blank CD — but this usage, unlike the others, has to be ‘authorised’.)

Although we talk of copyright as a singular thing, it is actually gen...