Intellectual Property: Whose Song is it Anyway?

Intellectual Property: Whose Song is it Anyway?

Heidi Waleson Photo by Melissa Richard Intellectual property has been a locus of debate for centuries. The difficulties of establishing standards for its ownership and exploitation stem from the fact that such property is not tangible, but rather the expression of the human mind and spirit. What is more, most creations of this kind can… Read more »

Written By

Heidi Waleson

Heidi Waleson
Heidi Waleson
Photo by Melissa Richard

Intellectual property has been a locus of debate for centuries. The difficulties of establishing standards for its ownership and exploitation stem from the fact that such property is not tangible, but rather the expression of the human mind and spirit. What is more, most creations of this kind can only be shared if they are given physical form by some means, and if that physical form is duplicated in some way. Music is even more problematic than other art forms in that anyone’s experience of music is ultimately an experience of a duplication of a musical work, whether via an actual live performance or some form of transmission of a performance. So who reaps the financial benefit of that duplication?

The development of copyright law (and its related areas of trademark and patent law), reflects attitudes toward such property that vary from culture to culture, but is concerned with balancing the rights of creators with the utilitarian needs of consumers. In some minds, copyright exists to compensate and protect the artist; in others, to stimulate the artist to produce more art, but not at the expense of the marketplace. Rapid technological advances have made the marketplace a more and more open area.

The current battles over music and the Internet are the most recent step in the struggle of copyright law to keep up with technology, a race that has been particularly intense during the 20th century, with its constant advances. Think about sound recordings, radio, movies, television, the photocopier, the DAT player. Rights that come into question with each new development tend to be fought out in the courts — and often decided in favor of the consumer, rather than the copyright holder. This leaves the US Congress to devise revision of copyright legislation to take new issues into account, and the Congress has tended to be a decade or two behind each of these developments. The following is a brief timeline of the development of copyright in the US, particularly as it applies to composers, offering a bit of historical perspective on an issue that never seems to be entirely resolved.

Copyright provides protection for original creative works. Its basic provisions are set out in the Copyright Act of 1976. It is actually a “bundle” of rights. Copyright owners, or those they designate, are the only ones who may exercise these rights which are: the right to reproduce the work in either copies or phonorecords, the right to prepare derivative works (new arrangements, for example), the right to distribute copies or phonorecords of the work to the public, the right to display the work, and the right to publicly perform the work.

These rights are secured automatically upon the creation of the work in a fixed form. Publication is not required, nor is registration with the Copyright Office, though such registration makes fighting infringement easier.

These rights may be assigned to others; composers, for example, often give publishers the right to publish their works and administer their copyrights. Copyright law also provides for the recovery of copyrights that are assigned to others after a certain amount of time has elapsed. The copyright owners, or those they designate, may extend various licenses to users. These include mechanical (recording), non-dramatic performance (also known as small rights), grand rights (for use in dramatic performance; opera and ballet are included here), synchronization (use in a soundtrack), print (sheet music), and commercial licenses (use in advertisements).

There are various limitations to the copyright owner’s exclusive control over the work. Most important is the concept of “fair use,” which provides for use of the copyrighted work in such activities as criticism, commentary, parody, news reporting, teaching, scholarship, and research. The limitations of fair use have been developed through court cases. The factors used to determine if a fair use defense applies are: the purpose and character of the use (is it commercial or non-profit?), the nature of the work, how much of the work is used in relation to the whole, and the effect of the use on the potential market for, or value of, the original.

 

Intellectual Property: Whose Song is it Anyway?
by Heidi Waleson
©2000 NewMusicBox

The printing press was the first technological advance that forced recognition of the question of who would benefit from the mass distribution of an artistic product. The first law that addressed this, the Statute of Anne, was passed in England in 1709, enabling the Stationers Company, until then a publishing monopoly, to protect their rights in the works they purchased from authors against other printers. The term of the protection was 28 years; the author could get back the rights after 14.

The first US copyright law was passed by Congress in 1790 as “an act for the encouragement of learning”; it extended a 14-year copyright to books, maps and charts. In 1831, music in notated form was specifically protected; until that time, it was often copyrighted as a book or engraving. The term of copyright protection has changed over the years. The 1976 Copyright Act protected new works for the life of the author plus 50 years; the 1998 Sonny Bono Copyright Term Extension extended the term for works still covered by copyright by 20 years, making the term life of the author plus 70 years.

In the 19th century, problems raised by new uses and technologies required new ideas about the extent of copyright. In 1853, for example, when Harriet Beecher Stowe‘s novel Uncle Tom’s Cabin was translated into German without authorization, the court allowed it. But in 1870, a comprehensive revision of copyright by Congress prohibited unauthorized new uses of literary works, such as translations or dramatization. In 1865, photographs were protected for the first time. At the turn of the century, when Thomas Edison sued over the unauthorized duplication of a motion picture, the trial court ruled against him, because movies were not specifically protected. In 1903, that decision was reversed on appeal, and in 1912, movies were added to the copyright domain.

 

Intellectual Property: Whose Song is it Anyway?
by Heidi Waleson
©2000 NewMusicBox

At first, music copyright holders derived most of their income from print rights. The 19th century saw a huge market for sheet music — ten thousand songs were published during the five years of the Civil War alone — and by the end of the century, cheaper production and transportation made it even greater. However, there was nothing in the copyright law about recorded music, and new inventions like piano rolls and phonographs were starting to erode the publishers’ income — you could buy the record instead of the sheet music in order to play it yourself.

As usual, a court case came first, with a music publisher [White-Smith Music Publishing Co.] suing the Apollo Company, which manufactured player pianos and piano rolls. In 1908, the court decided for Apollo, but the revised copyright law of 1909 recognized the need for some regulation in this new area, and prohibited unauthorized “mechanical” reproduction of musical compositions, which included phonograph recordings and piano rolls.

In order to prevent monopolies on the part of single manufacturers, however, Congress also created a compulsory license. Once the copyright owner had authorized one company to make a recording of a song, any other company could make its own recording of the song, on payment to the copyright owner of two cents per record.

The provision remains, though the amount has changed over the years. Most mechanical licenses are issued on behalf of publishers through the Harry Fox Agency, which was founded in 1927 and is part of the National Music Publishers Association. The agency also collects and distributes royalties. In 1972, a copyright in sound recordings, one that protects the performance rather than the work, was added.

 

Intellectual Property: Whose Song is it Anyway?
by Heidi Waleson
©2000 NewMusicBox

In 1897, Congress gave composers a public performance right — that is, the right of the copyright owner to collect a fee for public performance. This right was difficult to enforce, because hundreds of dance halls and restaurants all over the country had musicians giving unauthorized performances of music, and it was impractical for the copyright holders to collect fees for so many performances. What is more, the 1909 copyright law specified that such performances had to be “for profit” if royalties were to be collected for them. In 1913, nine composers and music publishers formed ASCAP, the American Society of Composers, Authors, and Publishers, to come up with a way to protect the performing right. Once again, a court case led the way: in 1914, ASCAP filed two suits, against a hotel and a restaurant, for performing music by John Philip Sousa and Victor Herbert. The defendants contended that because the patrons had not paid for the music, the performance was not for profit, and the lower courts agreed. But an appeal to the Supreme Court overturned those decisions in 1917. The Court argued that the performances were part of the experience in the restaurants, for which the patrons were paying. “If music did not pay it would be given up,” the decision said. The copyright owners were thus entitled to their share.

This point having been established, ASCAP organized a royalty collection and distribution system. Composers, authors and publishers became members of ASCAP, and gave the society the right to license non-dramatic performances of their works. (This excluded “grand rights,” or the use of the work in a theatrical performance, a right that was retained by the composer, author and/or publisher.) ASCAP issued a blanket license to dance halls, hotels, restaurants, and other entities that performed live music, giving them the right to play anything in its catalogue. ASCAP distributed royalties to its members based on a formula of the relative popularity of their works that was derived from sampling the licensees.

Nowadays, the three performing rights societies (ASCAP, BMI and SESAC) issue various types of licenses. Other entities (such as radio) have been added to those who must license the music they use, and the new ones just like the old ones continue to resist it. Most music consumers would really rather not pay for music — consider how fans justify the circulation of pirated recordings — and don’t see why they should have to. The intermediaries, from taverns to TV stations, still try to avoid it.

 

Intellectual Property: Whose Song is it Anyway?
by Heidi Waleson
©2000 NewMusicBox

With the invention of radio, a new method of distributing music began to supplement and eventually replace the prevalence of live performance. The American Society of Composers, Authors and Publishers (ASCAP) got busy licensing radio stations as well, winning several legal battles to establish its right to do so.

In the 1920s and 1930s radio burgeoned enormously, as did ASCAP’s expectations for license fees, and since it had a monopoly, it could name its price. Radio broadcasters decided to take matters into their own hands, and set up their own licensing operation. BMI (Broadcast Music Inc.) was established in 1939, and signed up its own composers. ASCAP’s license agreements were due to expire at the end of 1940, and the big radio networks refused their steep new terms.

On January 1, 1941, ASCAP music went off the air, except on a few independent radio stations that had signed new agreements with ASCAP. By the end of the year, ASCAP had come to an agreement with the networks, and ASCAP music was back on. Composers now sign with ASCAP or BMI. Publishers have differently named entities so that their composers can sign with either of the two licensing societies. A third society, SESAC, fo
unded in 1930, also licenses music and collects and distributes royalties.

 

Intellectual Property: Whose Song is it Anyway?
by Heidi Waleson
©2000 NewMusicBox

The next new technology to threaten copyright owners was the photocopy machine. With this invention, every user became a potential copyright infringer, and the question of fair use got a workout. The first significant legal battle pitted a publisher of medical journals against US government libraries, and after a protracted battle up to the Supreme Court, which gave its decision in 1975, the libraries successfully defended their right to make copies of journal articles. If libraries could do it on a large scale, then what about individuals? The 1976 revision of the copyright act gave copyright owners the exclusive right to control reproduction of their work (with a specific exception for libraries), but the prospect of policing individuals raised both practical and privacy concerns. It was even difficult to police the sort of large-scale copying that was clearly illegal: Music publishers, for example, had to contend with the copying of music by choirs.

Easy private copies were soon to have counterparts in the audio and video areas. The next fight centered on the videocassette recorder. In 1976, a movie studio, Universal, sued Sony over its Betamax machine, claiming that home taping would cut into its profits. After seven years in the courts, the Supreme Court finally held for Sony in 1983. It would take almost another decade before creators got any kind of relief from consumers making private copies. That was kicked off by the introduction of digital audio taping technology in 1986, which raised the threat of machines that could make copies of copies with no deterioration in the sound. Another long wrangle finally produced the Audio Home Recording Act of 1992. This law required that Serial Copy Management System (SCMS) controls be incorporated in digital audio equipment sold in the United States, so that the machines could make a copy of a prerecorded tape, but not a copy of a copy. What is more, manufacturers of blank digital audiotapes and digital audiotape equipment paid a statutory levy, which was to be distributed to the creators, artists, and record companies who made the recordings. Several funds were created for this purpose.

 

Intellectual Property: Whose Song is it Anyway?
by Heidi Waleson
©2000 NewMusicBox

The last decade has seen new legislation in the copyright area, once again in response to a new technology — the Internet. The Digital Performance Right in Sound Recording (DPR) of 1995 gave copyright owners of sound recordings (that is, the record companies) the right to authorize public performances, such as certain digital transmissions, including interactive audio transmission, of their work. Traditional radio and television were exempt. Next, the ‘No Electronic Theft’ Act criminalized sound recording copyright infringement occuring on the Internet regardless of whether there was financial gain.

The Digital Millennium Act (DMA) of 1998 implemented the international treaties signed in December 1996 at the World Intellectual Property Organization (WIPO) conference in Geneva. These treaties raised minimum standards for international copyright protection. The DMA amended the 1995 DPR to cover cable and satellite digital audio services and web casts. It also made it a crime to circumvent anti-piracy measures in software, outlawed code-cracking devices, and limited the liability of Internet service providers for copyright infringement in the information transmitted on their networks.

As the DMA requires webcasters to pay licensing fees to record companies for use of their sound recordings, another licensing system was required. The Recording Institute of America (RIAA) represents sound recording copyright owners in these negotiations. In September 2000, the RIAA and Yahoo agreed to parameters and conditions for music broadcast via Yahoo. In October 2000, the National Music Publishers Association and the RIAA agreed on procedures to facilitate licensing of musical compositions in recordings for Internet distribution. Like other “mechanical” licensing, this would be done through the Harry Fox Agency.

In the freewheeling world of the Web, the old arguments about who owns what are being played out once again. Technology innovates, and consumers take free access to the intellectual property made newly available for granted, until someone puts up a fight. The Napster controversy has echoes of much older ones. And while Internet technology has the real potential to actually charge consumers for the intellectual property they acquire through cyberspace — think of the ultimate pay-per-view — the legal history of this area indicates that getting there will not be easy.

 

Intellectual Property: Whose Song is it Anyway?
by Heidi Waleson
©2000 NewMusicBox