11.2 Copyright and intellectual property

Copyright and intellectual property are fundamental to the music industry in the Modern Era. These concepts shape how music is created, distributed, and monetized, influencing everything from composition to digital streaming.

Understanding copyright's evolution is crucial for navigating today's complex music landscape. From early laws protecting sheet music to current debates on AI-generated content, copyright continues to adapt to technological advancements and changing consumption patterns.

History of music copyright

• Copyright laws in music evolved alongside technological advancements in recording and distribution, shaping the modern music industry
• Understanding the history of music copyright provides context for current legal frameworks and challenges in the Music of the Modern Era
• Copyright protection for musical works has expanded over time to encompass various forms of musical expression and use

Early copyright laws

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• Statute of Anne (1710) established first copyright law protecting literary works but excluded musical compositions
• Copyright Act of 1831 in the US extended protection to musical compositions, primarily sheet music
• Early laws focused on printed materials, leaving recordings unprotected until the 20th century
• Composers and publishers relied on sales of sheet music as primary source of income

Development of music licensing

• Formation of performing rights organizations (ASCAP, BMI) in early 20th century to collect royalties for public performances
• Introduction of mechanical licenses for reproducing musical works on phonograph records
• Compulsory licensing system established to balance creator rights with public access to music
• Development of sync licensing for use of music in films and television programs

International copyright agreements

• Berne Convention (1886) established international recognition of copyrights across member countries
• Universal Copyright Convention (1952) provided alternative international framework for copyright protection
• WIPO Copyright Treaty (1996) addressed digital technologies and copyright in the internet age
• Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement harmonized copyright standards globally

Types of music copyrights

• Music copyright encompasses multiple layers of protection, reflecting the complex nature of musical works in the Modern Era
• Understanding different types of music copyrights is crucial for composers, performers, and industry professionals
• Each type of copyright grants specific rights and can be licensed or transferred independently

Composition copyright

• Protects the underlying musical work, including melody, harmony, and lyrics
• Owned by songwriters and composers, often in conjunction with music publishers
• Covers sheet music, tablature, and other written representations of the composition
• Grants exclusive rights to reproduce, distribute, and perform the musical work
• Can be licensed for cover versions, arrangements, and use in other media (films, commercials)

Sound recording copyright

• Protects the specific recorded performance of a musical composition
• Owned by the recording artist or record label, separate from composition copyright
• Covers the actual audio recording, including the performance and production elements
• Grants exclusive rights to reproduce, distribute, and publicly perform the recording
• Applies to various formats (vinyl, CD, digital files) and streaming platforms

Mechanical rights vs performance rights

• Mechanical rights involve reproduction and distribution of musical works
  • Covers physical copies (CDs, vinyl) and digital downloads
  • Royalties paid to composers/publishers for each copy made
• Performance rights cover public performances and broadcasts of musical works
  • Includes live concerts, radio airplay, and streaming
  • Royalties collected by performing rights organizations (PROs) and distributed to rights holders
• Digital performances (webcasting, satellite radio) may involve both mechanical and performance rights

Copyright registration process

• Copyright registration formalizes the protection of musical works in the Modern Era, providing legal benefits
• Understanding the registration process is essential for musicians and industry professionals to secure their rights
• While copyright exists upon creation, registration offers additional advantages in case of infringement

Requirements for registration

• Completed application form detailing the work and its creators
• Filing fee payment to the Copyright Office
• Deposit of the work
  • For compositions: sheet music or audio recording
  • For sound recordings: copies of the recording in acceptable formats
• Separate registrations required for composition and sound recording copyrights
• Group registration options available for multiple unpublished works

Benefits of copyright registration

• Creates public record of copyright ownership
• Enables legal action for copyright infringement in federal courts
• Allows recovery of statutory damages and attorney's fees in successful lawsuits
• Serves as prima facie evidence of copyright validity if registered within five years of publication
• Facilitates licensing and royalty collection by providing clear ownership documentation

Duration of copyright protection

• Life of the author plus 70 years for works created after 1978
• 95 years from publication or 120 years from creation (whichever is shorter) for works made for hire
• Different terms apply to works created before 1978, varying based on publication date and renewal status
• Public domain entry occurs after copyright expiration, allowing free use without permission
• Copyright term extensions (Sonny Bono Copyright Term Extension Act) have prolonged protection for many works

Fair use and public domain

• Fair use and public domain concepts balance copyright protection with public interest in the Modern Era of music
• These doctrines allow for limited use of copyrighted material and free use of works no longer under copyright
• Understanding these concepts is crucial for musicians, educators, and content creators working with existing musical works

Fair use doctrine

• Legal principle allowing limited use of copyrighted material without permission for purposes such as:
  • Criticism and commentary
  • Parody and satire
  • News reporting
  • Teaching and scholarship
• Four factors considered in fair use determination:
  1. Purpose and character of use (commercial vs. educational)
  2. Nature of the copyrighted work
  3. Amount and substantiality of the portion used
  4. Effect on the potential market for the original work
• Fair use applications in music include short quotes in reviews, academic analysis, and transformative remixes

Public domain works

• Musical works no longer protected by copyright or never copyrighted
• Can be freely used, performed, and adapted without permission or royalty payments
• Sources of public domain music include:
  • Works with expired copyrights (generally pre-1926 in the US as of 2023)
  • Works explicitly dedicated to the public domain by creators
  • Works created by the US federal government
• Notable public domain musical works (Beethoven's symphonies, folk songs)
• Caution needed as recordings of public domain compositions may still be under copyright

Creative Commons licenses

• Voluntary licensing system allowing creators to grant specific permissions for their works
• Provides flexibility between full copyright protection and public domain
• Six main types of Creative Commons licenses, varying in restrictions:
  • Attribution (CC BY)
  • Attribution-ShareAlike (CC BY-SA)
  • Attribution-NoDerivs (CC BY-ND)
  • Attribution-NonCommercial (CC BY-NC)
  • Attribution-NonCommercial-ShareAlike (CC BY-NC-SA)
  • Attribution-NonCommercial-NoDerivs (CC BY-NC-ND)
• Facilitates legal sharing and remixing of musical works in the digital age
• Used by many independent musicians and some established artists to promote their music

Digital copyright issues

• Digital technologies have revolutionized music creation, distribution, and consumption in the Modern Era
• New challenges to copyright protection and enforcement have emerged in the digital landscape
• Understanding digital copyright issues is crucial for navigating the contemporary music industry

Digital Millennium Copyright Act

• US law enacted in 1998 to address copyright issues in the digital age
• Key provisions include:
  • Anti-circumvention rules prohibiting bypassing of technological protection measures
  • Safe harbor provisions for online service providers limiting liability for user-generated content
  • Notice and takedown procedures for removing infringing content from websites
• Impacts on music industry:
  • Increased protection for digital rights management (DRM) systems
  • Shaped online music sharing and streaming platforms' copyright policies
  • Controversial due to potential overreach and impact on fair use

Streaming and digital distribution

• Shift from ownership to access model in music consumption
• Complexities in licensing and royalty calculations for streaming platforms
• Challenges in accurately tracking and compensating for digital plays
• Emergence of new business models (freemium, subscription-based services)
• Impact on traditional revenue streams (physical sales, downloads) and artist compensation
• Global reach of digital platforms complicating territorial copyright enforcement

Sampling and remixing challenges

• Widespread use of sampling in hip-hop, electronic, and other genres of modern music
• Legal issues surrounding unauthorized use of copyrighted material in samples
• Clearance process for obtaining permission to use samples, often costly and time-consuming
• Fair use arguments for transformative uses of samples in new works
• Development of sample libraries and royalty-free sources to avoid legal complications
• Remixing culture facilitated by digital tools, raising questions about derivative works and copyright

Music publishing and royalties

• Music publishing plays a crucial role in managing copyrights and generating revenue in the Modern Era
• Understanding royalty structures and collection mechanisms is essential for musicians and industry professionals
• Digital technologies have both complicated and streamlined aspects of music publishing and royalty collection

Role of music publishers

• Administer and exploit copyrights on behalf of songwriters and composers
• Register works with copyright offices and performing rights organizations
• Negotiate licensing deals for various uses of musical works
• Collect and distribute royalties to rights holders
• Provide creative services (co-writing, pitching songs to artists)
• Offer advances and financial support to songwriters
• Adapt to digital landscape by developing new revenue streams and licensing opportunities

Royalty collection societies

• Performing Rights Organizations (PROs) collect and distribute performance royalties
  • ASCAP, BMI, and SESAC in the US
  • PRS for Music in the UK, SACEM in France, GEMA in Germany
• Mechanical rights organizations handle mechanical and digital royalties
  • Harry Fox Agency in the US
  • MCPS in the UK
• SoundExchange collects digital performance royalties for sound recordings in the US
• Global network of collection societies facilitates international royalty collection
• Challenges in accurately tracking and distributing royalties in the digital age

Sync licensing for media

• Licensing of music for use in films, TV shows, commercials, and video games
• Growing importance as a revenue stream in the modern music industry
• Process involves:
  • Clearing both composition and master recording rights
  • Negotiating fees based on factors like usage, duration, and media type
  • Creating custom versions or re-records for specific projects
• Emergence of music supervision as a specialized field in the industry
• Impact of streaming services and increased content production on sync opportunities
• Challenges in balancing artistic integrity with commercial opportunities in sync deals

Copyright infringement in music

• Copyright infringement remains a significant issue in the Music of the Modern Era
• Digital technologies have both facilitated infringement and provided new tools for detection
• Understanding types of infringement and legal consequences is crucial for musicians and industry professionals

Types of music plagiarism

• Melodic plagiarism: copying distinctive melody or hook from another song
• Lyrical plagiarism: using substantial portions of another song's lyrics
• Rhythmic plagiarism: reproducing unique rhythmic patterns without permission
• Sampling without clearance: using portions of copyrighted recordings without authorization
• Arrangement plagiarism: closely mimicking the arrangement or production style of another work
• Subconscious plagiarism: unintentionally reproducing elements from previously heard music

Notable copyright lawsuits

• George Harrison's "My Sweet Lord" vs. The Chiffons' "He's So Fine" (1976)
  • Ruled as subconscious plagiarism
• Vanilla Ice's "Ice Ice Baby" vs. Queen/David Bowie's "Under Pressure" (1990)
  • Settled out of court, resulting in songwriting credits and royalties
• Robin Thicke/Pharrell Williams' "Blurred Lines" vs. Marvin Gaye's "Got to Give It Up" (2015)
  • Controversial verdict based on overall "feel" and style of the song
• Led Zeppelin's "Stairway to Heaven" vs. Spirit's "Taurus" (2020)
  • Ruled in favor of Led Zeppelin after multiple appeals
• Katy Perry's "Dark Horse" vs. Flame's "Joyful Noise" (2022)
  • Initially ruled as infringement, later overturned on appeal

Damages and penalties

• Statutory damages ranging from $750 to$150,000 per infringed work
• Actual damages based on lost profits or infringer's profits
• Injunctive relief to stop further infringement and recall infringing products
• Attorney's fees and court costs may be awarded to prevailing party
• Criminal penalties for willful infringement, including fines and imprisonment
• Reputational damage and career impact for artists found guilty of infringement
• Potential loss of copyright in extreme cases of willful infringement

International copyright considerations

• Music copyright in the Modern Era operates in a global marketplace
• Understanding international copyright principles is crucial for musicians and industry professionals
• Harmonization efforts and treaties have improved cross-border copyright protection, but challenges remain

Territorial nature of copyright

• Copyright laws vary by country, with protection granted on a territory-by-territory basis
• Works may have different copyright status or terms in different countries
• Enforcement of rights must be pursued separately in each jurisdiction
• Challenges in applying territorial laws to global digital distribution of music
• Importance of understanding local laws when releasing or performing music internationally

Berne Convention principles

• Foundational international copyright treaty with 179 member countries
• Key principles include:
  • National treatment: works protected in member countries as if created there
  • Automatic protection: no formal registration required for copyright
  • Independence of protection: rights in each country independent of protection elsewhere
  • Minimum standards: sets baseline protections all member countries must provide
• Establishes copyright term of life plus 50 years (many countries extend to 70 years)
• Prohibits formalities as a condition of copyright protection

Copyright in different countries

• United States: registration required to sue for infringement, unique work-for-hire doctrine
• European Union: harmonized copyright laws across member states, stronger moral rights
• Canada: fair dealing instead of fair use, unique treatment of sound recordings
• Japan: separate neighboring rights for performers and producers, unique treatment of sampling
• China: rapidly evolving copyright laws, challenges with enforcement and piracy
• Developing countries: often have less comprehensive copyright protection or enforcement
• Variations in treatment of:
  • Moral rights (right of attribution, integrity)
  • Fair use/fair dealing exceptions
  • Collective management of rights
  • Duration of copyright protection

Future of music copyright

• Rapid technological advancements continue to shape copyright issues in the Music of the Modern Era
• Emerging technologies and changing consumption patterns present both challenges and opportunities
• Ongoing debates about copyright reform aim to balance creator rights with technological innovation

Blockchain and rights management

• Potential for decentralized, transparent rights management systems
• Smart contracts automating licensing and royalty distributions
• Challenges in adoption and integration with existing industry infrastructure
• Blockchain-based platforms for music distribution and rights tracking (Ujo Music, Musicoin)
• Potential to reduce intermediaries and increase efficiency in royalty collection
• Issues of scalability and energy consumption in blockchain technologies

AI-generated music copyright

• Questions surrounding authorship and ownership of AI-created musical works
• Debates on whether AI-generated music should be copyrightable
• Potential impact on human musicians and the creative process
• Legal and ethical considerations in training AI on copyrighted works
• Emergence of AI as a tool for music creation rather than autonomous creator
• Need for updated legal frameworks to address AI-related copyright issues

Proposed copyright reforms

• Modernizing music licensing for the digital age
  • Music Modernization Act in the US addressing streaming royalties
  • EU Copyright Directive addressing value gap between platforms and creators
• Debates on copyright term lengths and potential reductions
• Proposals for expanded fair use/fair dealing exceptions for digital and educational uses
• Discussions on orphan works and out-of-commerce works
• Potential creation of a small claims court for copyright disputes
• Efforts to harmonize international copyright laws further
• Balancing copyright protection with open access and remix culture