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Jonathan Deamer – http://jonathandeamer.com
Choose an organisation operating in the Arts, Music and Entertainment sector.Describe the range of Intellectual Property issues that impact on the chosen organisation andcomment on the manner and extent to which they deal with these.
It is evident from the definition of a magazine as a “
 periodical containing a collection of articles, stories, pictures, or other features”
(Oxford Dictionary 2004)
 
that an organisation which publishes such periodicals will have various intellectual property issues to deal with.
 
One might argue that this is eventruer with publications that specialise in the fields of arts and entertainment, as their very subject matter isa copyrighted material subject to various intellectual property laws. New Musical Express (NME) is the UK’s biggest selling weekly music magazine (Music Week 2006).In this essay I shall examine the intellectual property issues
 
affecting the NME, both in terms of how it protects its own rights, as well as those of its contributors and writers, and how it avoids infringing therights of the artists and musicians that the magazine features. Although intellectual property is a broadarea that covers copyright, trademarks and patents among other issues, this essay shall focus primarily onthe first of these, with specific reference to the Copyright, Designs and Patents Act 1988 as it is most pertinent to the examination of a publication like NME.It is important at this stage to define which elements of the NME are covered under intellectual propertylaw. According to
 Buying and Clearing Rights
(McCracken, Gilbart 1995), works protected by copyrightfall into various main categories: literary, dramatic, musical and artistic works, sound recordings, broadcasts, and typographical arrangements.Section 3(1) of the Copyright, Designs and Patents Act 1988 states that
“‘literary work’ means any work other than a dramatic or musical work, which is written, spoken or sung”
(Dworkin, Taylor 1989), and so
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Jonathan Deamer – http://jonathandeamer.com
various textual elements of the NME come under laws that cover literary works. It is worth noting that, based on this definition, a “literary work” need not have any literary merit in the traditional sense; thiscategory therefore also includes tables and compilations. Such works must also be original,
“in the senseof ‘not copied’ rather than as a test of inventiveness”
(1989). A specific way in which these elements of intellectual property law impact on the NME is in its weekly gig guide. A compilation of detailsregarding live music events occurring throughout the country constitutes an original literary work, and istherefore the intellectual property of the NME, even though the information is in the public domain andfreely available to anyone who consults appropriate sources. Further examples of literary copyrightissues affecting the NME are the use of an artist’s lyrics, and the work of staff or freelance writers, both of which shall be addressed later in this essay.In addition to parts of the magazine that may be deemed to be literary, much of the publication comesunder laws concerning artistic or published works. Although artistic works can be placed into three maincategories covering works of art like sculptures and architecture (McCracken, Gilbart 1995), most of theartwork contained within the magazine is
“that which most closely corresponds to what we generallythink of as ‘artistic’, covering graphic works, photographs and collages”
(1995)
.
As well ascommissioned photography work, the NME publishes album cover art. In addition, it is protected tosome degree under the Copyright, Designs and Patents Act’s assertion that copyright protection of  published editions gives publishers the copyright in the typeface and layout of their works (Dworkin,Taylor 1989).When featuring writing that has not been specifically commissioned for the purposes of the magazine,such as in the case of publishing song lyrics, the magazine must ensure it does not infringe the author’scopyright in such writing. A pertinent example of how the publishers of the NME deal with thisrequirement is the Act’s allowance of the use of extracts from a copyrighted work when such an extract is
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Jonathan Deamer – http://jonathandeamer.com
deemed to be
“fair dealing for the purposes of criticism or review”
(Phillips, Firth 1995). SivaVaidhyanathan’s book 
Copyrights and Copywrongs
explains the concept that
“without referring to or  freely quoting from original works, it would not be possible for newspaper editorials, book reviews and  satirical television shows to be created”
(2001). This provision of the Act is essential to the NME. In areview of an album, be it critical or positive, it is permissible to publish an extract from an artist’s lyrics,which would otherwise be subject to copyright law. Vaidhyanathan says
“How can a writer make fun of atelevision show without borrowing elements of its creative expression? If the writer had to ask  permission from the producers of the show, the parody would never occur”
(2001). In the same way, amagazine based around criticism of the arts would never be able to fulfil this function if it had to get permission from the copyright holders – an author would be unlikely to allow negative criticism of their work given the option.However, one of the things publications like the NME have to deal with in terms of the Act’s provisionfor fair dealing is the question “what constitutes fair?”. The Act
“does not specify by length or quanity”
(Phillips, Firth 1995), although it has been suggested that in order to gauge fairness, the publishers of the NME should ask themselves two questions:
•
Will it harm the rights owner’s ability to exploit the work elsewhere?
•
 Are you using the most important or significant part of the original?
(McCracken,Gilbart 1995)It is, arguably, unlikely that any use of copyrighted works (eg. lyrics) within a textual review would harmthe rights owner’s ability to exploit the work elsewhere. For example, a potential customer is unlikely tonot buy a CD as the review takes its place – this would suggest that inclusion of lyrics within a reviewwould constitute fair use. However, the inclusion of sound clips in an online review of the same record
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