The Music Industry Represented in Copyright Law
The part of intellectual property law concerning the music industry is copyright law. The term “copyright” is defined as “the sole right to reproduce a literary, dramatic, musical or artistic work or to perform translate a film or record of such a work” . It is a right protecting “the expression of an idea” . The law on copyright can be found in the 1988 Copyright, Designs and Patents Act (the 1988 Act), which is the main piece of legislation, as far as the music industry is concerned.
1. THE COPYRIGHT, DESIGN AND PATENTS ACT
This 1988 Act is the most complete act concerning copyright law. The first part deals with copyright and the second deals with rights in performance.
a. WHAT IS PROTECTED BY THE 1988 ACT?
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ORIGINAL LITERARY WORKS (S. 1(1)(a)):
Literary work means “any work other than dramatic or musical which is written, spoken or sung”. This definition includes therefore the lyrics of a song. Yet, the number of words that a literary work needs has not been established neither in this Act, nor in the pieces of legislation on copyright prior to the Act. It has however been stated in Exxon Corporation v Exxon Consultant Ltd [1981] 3 All ER 241 , that a single word did not constitute an original literary work. However words can be protected by trademark.
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ORIGINAL MUSICAL WORKS (S. 1(1)(a)):
They are “works consisting of music exclusive of any word or action intending to be sung, spoken or performed with the music”.
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ORIGINAL DRAMATIC WORKS (S. 1(1)(a)):
They include works of dance and, consequently include choregraphies.
Literary, musical and dramatic works have to be original for a copyright to subsist, but the word “original” is not defined in the Act. However, the House of Lords had held in a 1964 in Ladbroke Football Ltd v William Hill Football Ltd [1964] WLR 273, that the work should not be a copy of another work but should originate from the same author. In this case, the Court admitted a compilation of other literary works could be regarded as original provided it constitutes a single work.
Copyright in these works subsist from the time they are made, i.e. from the time they are recorded “in writing or otherwise” . S. 178 defines “writing” as including “any form of notation or code, either by hand or regardless of the medium in or on which it is recorded”.
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SOUND RECORDINGS:
They are recordings “of a whole or any part of a literary, dramatic or musical work for which sounds reproducing the work or part may be produced regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced” . Sound recordings can have 12 inches records, cassettes, CDs or digital and audio tape as a support. Sound recordings made by a producer, such as demos or sound recordings of a live performance are included in the definition.
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FILMS:
They are recordings “on any medium from which a moving image may by any means be produced”. Soundtracks accompanying the film are considered to be part of it. According to that definition, a video of song should be regarded as a film and the sound recording accompanying it should be incorporated to it.
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BROADCAST:
This is the “retransmission by wireless telegraphy of visual imaging, sound or other information capable of being lawfully received by members of the public or transmitted for presentation to members of the public” . A broadcast can therefore be a TV program transmitting a video of a song or a live performance, or a radio program transmit the sound recording of a song or of its live performance.
b. WHO IS PROTECTED BY THE ACT?
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THE COPYRIGHT OWNER
Even though it is not indispensable, it is important to know who the author of a copyright work is in order to see who the copyright owner can be. Indeed, the author is the first copyright owner of the work, unless (s)he is an employee making the work in the course of his/her employment, which is the case of a producer employed by a record company. This exception was stated in Stephenson Jordan & Harrison Ltd v McDonald & Evans [1952] RCP 10 where the judges declared that lectures given by an employed accountant and subsequently incorporated into a book do not belong to the employer, because the employee was employed to advise clients and not to deliver public lectures.
The author is defined in S. 9 as the person creating the work. (S)he is the writer of a work of literature, the composer of a piece of music, “the person who undertook the arrangements necessary” for the making of a sound recording and of a film (i.e., producer ), the principal director of a film, and the person making a broadcast. S.10 points out that there can be works of joint authorship when they are “produced by collaboration of two or more authors in which the contribution of each author is not distinct from that of the other authors”. This section therefore acknowledges the collaboration between lyricists of one song, for example.
There can be several authors in a work (literary, musical etc.). In that regard, the Chancery Division of the High Court declared on 27th January 1999, in Hadley v Kemp [1999] EMLR (the Spandau Ballet case) that even if only one group member was credited for the as the composer of all the songs, a joint authorship could be established by showing a “significant and original contribution to the creation of the musical work”. In this case, musicians were claiming joint authorship of songs which were not written by them, but performed in a very personal way. The Court took the degree of creativity into consideration and decided that for one song Glow, the drummer had provided a “significant original contribution to the song as a whole” and dismissed the saxophonists claim that he was a joint author of the song True on the ground that, on the one hand, saxophonists in general were expected to improvise saxophone fills and, on the other hand, the saxophone solo took only 16 bars and 9% of the whole song.
The copyright owner, who at first is the author, may assign or licence his/her copyright:
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Assignment of copyright: “can be thought as a disposal by the way of sale or hire by will” The owner of a copyright can transfer it to another party.
The assignment can be partial as to:
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restricted acts transferred : limited rights given to the assignee
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period of subsistence of the copyright: the copyright will return to the previous owner before the legal expiry date.
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Licensing of copyright: is a permission given by the copyright owner to a licensee to do certain
Acts that only the owner can normally do. In the music industry, licensing is frequently used by copyright assignees, so the work can be exploited by professionals.
Third parties have to respect this new situation and are bound to the contract or will of licensing or assignment. There can be several licensees or assignees for one work. In the music industry, broadcasts and cable programs are often the last licensees in the chain; as a consequence, the scrutiny of their intellectual property rights shall be limited.
In a case of licensing, as opposed to assignment, only the copyright owner has the right to sue for infringement, the right to alter the work (subject to the authors moral rights).
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Duration of the ownership. The legal duration of a copyright ownership depends on the nature of the work.
– In dramatic, literary, musical works and in films, the copyright expires “at the end of a period of 70 years from the end of the calendar year in which the work was made”. If the work is one of joint authorship, the delay starts when the last author alive dies. When the work is a film of joint authorship, the delay starts after the death of the last one alive among the producer, the director, the author of the screen play and the composer of the music used in the film. In all these works, the delay can start from the moment the work was made available to the public, i.e. from the moment the work is first being broadcast or performed in public.
– In sound recordings, “the copyright expires in a period of 50 years from the end of the calendar year in which its or released”.
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What a copyright owner only can do (in the absence of a licence) : “the restricted acts”.
The copyright owner is the only one who can exploit his/her work in order to take advantage of the money generated.
Only a copyright owner can:
– copy the work : reproduce the work in any material form
– issue copies to the public: “put into circulation in the EEA copies not previously put into circulation in the EEA; put into circulation outside the EEA copies not previously put into circulation outside the EEA or elsewhere”.
– rent or lend the work to the public: Rental is defined as “making a copy of the work, available for use on terms that it may be returned for a direct or indirect commercial advantage through an establishment accessible to the public”.
– perform, show and play the work in public: The Act has no statutory definition of “performing in public”, but in PRS v Harlequin Record Shop Ltd , it was decided that music played over loud speakers in a record shop was played in public; and the same was held in about the playing of music to workers in a factory in Ernest Turner Electrical Instruments Ltd v PRS ([1943]1 Ch 167.
– broadcast or include the work in a cable programme service.
– make an adaptation or an act related to the work. This includes translation of a literary work and transcription of a musical work.
The undertaking of these acts by an unauthorised non copyright owner would amount to a copyright infringement. It is also forbidden to import, possess or deal with an unauthorised copy (secondary infringement) or to provide means for the making of those infringing copies.
THE AUTHOR
1° Moral rights
Adopting a principle coming from an international convention and in application in other countries, the
1988 act gives moral rights to the author of a work, independently of the ownership of a copyright. “Le droit moral” (moral right) comes from the post French revolution doctrines of natural law, individualism and free spirit, which consider that creations resulting from an intellectual effort express the spirit of the creator and should therefore be protected, otherwise, this could be prejudicial to the person of the author.
In French law, from which this right originates, moral rights are attached to the author and are independent from patrimonial authors rights. The rights granted are perpetual (i.e., they cannot expire), inalienable (cannot be renounced) and imprescriptible (can be invoked without time limitations). Authors enjoy a right of disclosure of the work, a right of withdrawal (against compensation), a right to be identified as the author of the work and an integrity right.
Moral rights are not part of the Anglo-Saxon tradition, which is more focused of the economical value of a work, however English law had to comply with the Berne Convention but adopted weak rights.
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The “Paternity Right”: Right to be identified as the author of the work
The writer of a song lyrics or the composer of the music (and other copyright protected works) has the right to be identified as the author whenever:
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the work is published commercially
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copies of a sound recording of the work are issued to the public or,
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a film of which the soundtrack includes the work is shown in public or copies of a such a film are issued to the public.
The author has the right to be identified as such whenever any of those events occur in relation to an adaptation of the work.
The director of a film has the right to be identified whenever the film is shown in public, through broadcast or included in a cable program service.
The paternity right can be invoked only if authorship is asserted. This requirement is in contradiction with the Berne Convention which gives a right and not an obligation to claim authorship and which stated that rights (moral rights included) “shall not be subjected to any formality”.
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“The Integrity Right”: Right to object to a derogatory treatment of the work: The author of a work has the right to take sure that his work keeps its integrity. It is consequently forbidden to add to, delete from, alter to or adapt a work if its not a translation of a literary and dramatic work or an arrangement or transcription of a musical work involving no more than a change of key or register. The violation of this right amounting to a prejudice to the authors reputation, an action in defamation can also be made.
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In Morrisson Leahy Music ltd v Lightbond and others [1993] EMLR 144, the singer George Michael, via his first record company, claimed a violation of his integrity right after the release of a recording of a “mega-mix” containing altered portions of his work. The moral right issue was not clearly dealt with by the judges because a copyright violation had been established.
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False attribution of the work : A person has the right not to have a work falsely attributed to him/her as the author. Implied false attributions are also targeted by the Act. Here again an action in defamation can take place.
Moral rights can be transmitted on death by testamentary dispositions, to the person to whom the copyright was passed for example. However, they are, in contradiction to the inalienability principle, waivable, mostly because the legislators of 1988 were aware that this would facilitate the exploitation of works and limit litigation.
2° Right to equitable remuneration :
The author of a work has the right to be remunerated when (s)he licenses or assigns his/her rental right. As a consequence authors have the right to take advantage of the exploitation of their work to get a part of the income generated. Right to equitable remuneration can be assigned to collecting societies, which are “societies or other organisations which have as their main object, the exercise of the right to equitable remuneration on behalf of more than one author”. The copyright assignee and the author have to make an agreement as to the sum payable as remuneration. If no agreement is made, the Copyright tribunal can determine the sum. It can also vary any agreement or previous determination it had decided as to the remuneration. What has to be taken into account in the determination of the sum is the contribution of the performer to the sound recording.
c. IN CONJUNCTION WITH COPYRIGHT: RIGHTS IN PERFORMANCE
These rights are independent from any copyright or moral right. The exploitation of a performance (live) requires the performers permission.
Are concerned:
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British citizens
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those who perform 1) in the UK. 2)in an EEA state. 3) in the Isle of Man, the Channel Islands and any colony of the UK as in relation to a foreign country.
S. 182: It is forbidden for a person without the performers consent, to record, i.e. to make a film or a sound recording directly from the live performance, from a broadcast or cable program including the performance or from another recording of the performance .
S. 182B: It is forbidden to issue copies of the performance recording to the public without the performers consent where the copies hadnt previously been put into circulation.
S. 182C: It is forbidden to lend or rent copies of a performance to the public.
Violation of these rules, even unwillingly, constitutes an infringement of the rights in performance. It was declared in Hawkes & Son Ltd v Paramount Film Service [1934] Ch 593 that even if a part of a song was recorded, this might still be a substantial part especially if it was well-known or a easily recognisable part of the group’s repertoire, and under those circumstances, the recording of that part of the song constitutes an infringement to the rights in performance.
S. 182D: The performer has the right to be equitably remunerated by a copyright owner for the exploitation of a sound recording containing his/her performance. The sum payable to the performer has to be negotiated by the copyright owner and the performer or has to be determined by the Copyright Tribunal if no agreement is made.
S. 185: Some people can have recording rights. For that purpose, there must be an exclusive contract allowing the person willing to exploit the performance to make recordings of the performance with a view to their commercial exploitation
Rights in performance expire 50 from the end of the calendar year in which the performance was made, or 50 years from the calendar year in which the sound recording of the performance was released.
2. EUROPEAN DIRECTIVES
European law has an important impact on copyright law even though it is mainly influenced by the Continental tradition. Indeed, since in the music industry, many countries are involved, national legislation on fundamental principles have to be uniform so the rights of an author or a copyright owner can be protected in the same in any member state. However the main and most basic principles lie in international conventions, which were ratified by most of EU member states. As a consequence, European directives do not go back to these principles but add new rules to them, rules which have to be respected by the states.
a. THE DURATION OF COPYRIGHTS AND RIGHTS IN PERFORMANCES REGULATIONS 1995
These regulations implemented the Council directive of December 29th 1993, which amends the 1988 Act. They have the effect to permit a longer subsistence of copyrights and rights in performance.
– REVIVED AND EXTENDED COPYRIGHTS
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Extended copyrights: are “copyrights subsisting after the date on which it would have expired under the 1988 provisions” .
Regulation 15: “A copyright in an existing copyright work shall continue to subsist until the date on which it would have expired under the” 1988 Act if that date is later than the date on which the copyright would have expired under the new provisions.
Regulation 18: The “owner of a copyright in a work immediately or before commencement is as from commencement, the owner of any extended copyright in the work if he is entitled to copyright for a period less than the whole copyright period under the 1988 provisions, any extended copyright is part of the reversionary interest expectant on the termination of that period”.
Regulation 21: The extension of a copyright can be made by agreement (between an assignor and an assignee) or by tribunal order if no agreements can be made.
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Revived copyrights:
Regulation 19: Once the 1988 delay has expired, the owner of the copyright immediately before it has expired can own any copyright revived in the work. If this owner dies, the revived copyright can go to his representatives, or to the author of the work.
Regulation 22: “Moral rights continue to have effect during the period of the revived copyright”. However, it has been seen before that the duration of a moral right was independent from the duration of the copyright and that in case of death of the author, the rights could be transmitted, so anyway, the 1988 provisions on moral rights already express what is said in this regulation.
Regulation 24: when a copyright is revived, the person making a restricted act is regarded as a licensee, but has to pay reasonable remuneration to the owner and the author. The sum is fixed by agreement or by tribunal order.
– REVIVED AND EXTENDED RIGHTS IN PERFORMANCE
The principles are the same as those concerning copyrights. The only thing to bear in mind is that a reviving or extension of copyright does not imply that the same is going to occur for rights in performance. These two rights always have to be dealt with separately.
b. THE COPYRIGHT AND RELATED RIGHTS REGULATIONS
They implement the November 19th 1992 directive on rental rights and lending rights, the September 27th 1993 Directive on the Coordination of Certain Rules Concerning Copyrights and Rights Related to Copyright and Right Related to Copyrights in the Field of Intellectual Property and the October 29th 1993 Directive Harmonizing the Terms of Protection of Copyright.
These regulations give publishing rights (property rights) to EEA nationals publishing a work, which had never been published before and for which the copyright has expired .
3. INTERNATIONAL CONVENTIONS
Undeniably, they are a source of English law. They can also be inspired by English law especially, when the domestic law concerns an area which is much more developed in the other countries, and where it is well elaborated. Usually, they set minimum standards so the legislation of the contracting states can be uniform and the risk of a states rights by another state can be limited. Usually, English law applies the principles set by the conventions, but not always.
a. THE 1886 BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS
The word “artistic” here does not have the same meaning as in the 1988 Act. It indeed includes in the convention musical works, choreographic works, musical compositions with or without words and cinematographic works. Most of the standards set up by the convention were applied to English law, the last important principle included in English law being moral rights (art 6 of the convention), which were only recognised in 1988. The “droit de suite”, which concerns the artists resale right (art 14 ter of the convention) is still not recognised by English law.
b. THE 1952 UNIVERSAL COPYRIGHT CONVENTION
This convention, revised in 1971, adds standards to those stated in the Berne convention. It also adds some formalities that the contracting countries are to follow. For example, art 3 declares that the formality requirements are fulfilled when “from the first time of publication, all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol ©; accompanied with the name of the copyright proprietor, the year of the first publication placed in such manner and location as to give reasonable notice of claim of copyright”. This formality is fulfilled in the UK and world wide even in absence of domestic legislation imposing it.
c. THE 1990 WIPO PERFORMANCES AND PHONOGRAM TREATY
The WIPO (World Intellectual Property Organisation) is an inter-governmental organisation responsible for the promotion of the protection of intellectual property throughout the world. This treaty grants performers a right, which is not mentioned in English Law. Indeed, art 5 gives performers moral rights in stating that “the performer shall, as regard his live aural performances or performances fixed on phonograms, have right to claim to be identified as a performer of his performances”.
Even though international conventions do not have the same authority as European directives, they have a great contribution to domestic intellectual property law. Besides, even when the contracting states dont follow the treaties provisions such as the formality requirements, these provisions can be applied in practice.
The law in relation to the music industry on copyright having been observed in this second part, it remains to see, how the parties involved in the music industry deal with copyright law.
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