Intellectual Property Debate

Intellectual Property
Popular music studies scholars deploy concepts like genre, audience, context and identity.
Since 1997, after the arrival of the first Tony Blair government, new phrases like the creative
economy, creative industries, copyright and intellectual property rights were summoned as the
engine for economic stimulation and development. Popular music has gone from being a
dynamic leisure practice of youth to a way to develop markets on diverse platforms to harvest
intellectual property and copyright. Innovative soundscapes are interrupted, punctuated,
controlled and restricted by law.
Intellectual property is a term derived from the law that refers to creative works including
literary, artistic and musical formations. IP includes copyright, design, trademarks and patents
and attempts to capture, monitor and market the bundling of ideas in a particular form. Ideas
themselves do not designate rights. Instead, the form of the ideas designates specific rights to
the authors, which they may or may not exercise. The entity that is owned is not a physical
property but an abstract idea that has physical manifestations through designs, music and
images. In IP law, the holder has rights that are dependent on the jurisdiction in which the
property is located. In a digital environment, such jurisdictions became increasingly complex.
For example, Kazaa’s domain name was registered in Australia, with the servers in Denmark,
software programmers resident in Estonia and the company registered in Vanuatu.
Using Kazaa as a metynomy for new styles of ownership and distribution, David Bowie’s
prescient realization is now reaching fruition.
The absolute transformation of everything that we ever thought about music will take place within ten years, and nothing
is going to be able to stop it ... I’m fully confident that copyright, for instance, will no longer exist in ten years, and
authorship and intellectual property is in for such a bashing. Music itself is going to become like running water or
electricity (Kusek and Leonhard, 2005: x).
Bowie’s statement about revolution, technology and change raises questions about how music
is written, owned and commodified. Of the three main types of intellectual property laws,
copyright is the most relevant to popular music studies as it grants the holder exclusive rights
to control how work is reproduced and adapted over a jurisdiction-specific period of time.
Copyright maintains a rearguard action against technological change. Indeed, Lawrence Lessig
Copyright © 2011. SAGE Publications. All rights reserved.
stated that,
copyright has always been at war with technology. Before the printing press, there was not much need to protect an
author’s interest in his creative work. Copying was so expensive that nature itself protected that interest. But as the cost
of copying decreased, and the spread of technologies for copying increased, the threat to the author’s control increased.
As each generation has delivered a technology better than the last, the ability of the copyright holder to protect her
intellectual property has been weakened (2006: 172).
The shift from analogue to digital mattered in this context. There were two important changes.
Firstly, digital copies were identical to the original. Secondly, the copies could be reproduced
Brabazon, T. (2011). Popular music : Topics, trends & trajectories. SAGE Publications.
Created from icmp on 2022-03-06 14:17:23.
an infinite number of times and moved through the online environment. Because of the small
files’ size that comprises an MP3 popular music track, the mobility of songs without copyright
permission was high. Therefore, content industries started to respond to the ‘threat’.
Importantly though, the stretch of copyright law has not only increased through digitization. As
music has moved beyond composition and into live performance through to sound recordings –
into what is termed ‘neighbouring rights’ – new forms of protection and infringement are being
invented. Such protections are now limiting social activities and creative expressions based on
earlier works. What has been called the public’s right to ‘fair dealing’ and ‘fair use’, is now
subject to new mechanisms from copyright owners restricting such phrases. Even more
disturbingly, in an environment where copyright is increasingly regulated, the application of
trademark protection has become more important. Trademark and copyright protection are
different, but through trademark protection, content providers can restrict and commodify such
ambiguous ideas such as performance, style and timbre (Demers, 2006: 25). The irony of such
restrictions on popular music is that of all areas of popular culture and the creative industries,
music is the most derivative, appropriated and allusory of earlier genres, riffs, rhythms,
melodies, lyrical subjects and vocal styles. One of the ironic consequences of the ideology of
authenticity and originality that travels through such genres as folk, punk and indie is that it has
perpetuated the notion of an individual writing a song without references, context or history. It
forgets the role of what Joanna Demers described as ‘transformative appropriation’ (2006: 4).
She realized that, ‘the fundamental change wrought by sound reproduction technologies of the
twentieth century has been to enlarge the gray zone between plagiarism and allusion by
introducing another category of imitation: mechanical reproduction’ (2006: 29). Digitization
has only increased the speed and capacity of borrowing, appropriation and remixing. But also,
copyright over-emphasizes the appropriation and use of melody and lyric. This means that
there is greater protection for a line of lyric or a phrase of notes rather than the deployment of a
rhythm or bassline. Considering the impact of ska, reggae and ‘Latin’ rhythms, the legal
balance towards words and melodies, rather than rhythms and instrumental mixes, is implicitly
eurocentric. World music is particularly poorly protected. The line between recognizing non-
European musics and exploiting these sounds is particularly vexed. Ethnomusicological field
recordings are especially vulnerable (Demers, 2006: 103).
Over the last two decades copyright wars have flooded popular music studies, questioning
the public use of songwriters’ works. Each nation offers distinct laws and regulations. For
example, the fair dealing provision of the England and Wales Copyright Act 1968 allowed the
use of copyright materials without the copyright owner’s permission. At issue here is the
application and jurisdiction of the phrase ‘fair dealing’. Importantly, there is a range of
unexpected consequences of copyright law. Dick Weissman discusses the consequences of
unfortunate copyrighting of folk recordings. John Lomax was a great preserver and promoter of
American folk music and copyrighted a series of songs. The ‘old’ copyright law not only
enabled these songs to be restricted for twenty-eight years – plus the twenty year renewal
period – after Lomax’s death in 1948, it also controlled music that should have been in the
public domain. The Lomax family gathered not only publishing rights, but also songwriting fees
for songs they did not write (Weissman, 2006: 21).
There are historical reasons why copyright has been such an issue in popular music,
particularly as digitization has increased its influence. The economic, social and political
protection of private property has been extended from physical property to privately owned
lyrics, melodies and recorded performances (McLeod, 2003: 242). Copyright is based on
assumptions and determinations of originality and authorship that were built on the framework
triggered by the consequences of the printing press and print capitalism. Kembrew McLeod
believed that ‘copyright law only recognizes particular types of authorship as legitimate’
(2003: 246). This type of law is tested in many ways, but particularly through the use of
samples, which creates new originality from older originality. When a sample is used, two
types of copyright fees are due: publishing fees and the mechanical fees that comes from the
use of the ‘master’ recording. To avoid paying the mechanical fee, since the 1990s, hip hop
musicians have utilized studio musicians to play a sample similar to the original, so that only
the publishing fee is due to be paid (McLeod, 2003: 247).
Originally, copyright began its application to music by prohibiting any unauthorized
copying of sheet music, but the deployment of the law has now increased in range. Joanna
Demers confirmed,
With respect to musical compositions, the law now enables copyright holders to enjoin public performances,
broadcasting, the making of sound recordings in any medium, and, in many jurisdictions, the sharing of music with the aid
of digital technology. Each of these exclusive rights can be separately assigned or multiply licensed for distinct purposes,
potentially creating tangled webs of prohibition that fraught the use of music with dangers of litigation (2006: vii).
With the length of time increasing for the ‘protection’ of music, fewer works are entering the
public domain, ensuring that the range of infringements and liabilities increases. While there is
an array of laws ensuring the right for fair use of musical works, there are a number of litigants
testing the limits of that use.
Popular music as an industry is based on intellectual property rights. By the 1980s, popular
music had become a conventional (post) industrial economic product. Pretences of art and
politics were a way to mask the commercial aspects. Raymond Horricks and Neil Slaven
confirmed that by 1980, ‘pop music as we know it is now an industry like any other –
dispassionate, calculating and profit-conscious. It isn’t always fun any more; but after all, it’s
only rock ‘n’ roll and we all like it’ (1980: 70). Popular music is a business enterprise
operated by corporations. It has always been reliant on consumerism and capitalism. While
there have been moments within punk and reggae, indie and gospel, where there has been a
denial of sales and commodification, this ‘authenticity’ has very quickly become a marketing
device to sell a more ‘radical,’ ‘resistive’ and ‘anti-corporate’ product. Anti-branding and
anti-marketing are ways to freshen up sales. However this resistance and difference served the
interests of the market. Currently, and enabled through the odd relationship between consumer
capitalism and digitization, there is what Christine Harold termed ‘rhetorical sabotage in the
new brand economy’ (2007: 46).
The record industry did not predict the decline of interest in their product, particularly the
album. Indeed, Simon Frith reported that ‘in March 1988 the marketing director of HMV
Records ... told startled delegates at the annual meeting of the British Radio Academy that the
single record would be obsolete within three years’ (1988: 3). He was both right and wrong.
All records would be obsolete. Albums would be obsolete. Singles would survive, but without
a platform, being loaded directly onto a computer hard drive and portable devices. The goal
for the recording industry was not simply the sale of music. Keith Negus wrote what was
probably the last book before the impact of digital downloading became apparent to the record
companies. Published in 1992, Producing Pop: Culture and Conflict in the Popular Music
Industry explored ‘the active work of recording personnel’ (p. vi) in discovering and
developing artists. He explored the era before the proliferation of cheap and intuitive home
recording equipment and software, before the self promotion on MySpace and YouTube and
distribution portals such as iTunes. In this pre-Napster and Kazaa environment, Negus reported
that,
Entertainment corporations are increasingly attempting to gain the maximum revenue possible from exploiting the
ownership of copyright; using the mass communications media available to place recordings across multiple sites, and
lobbying for the licensing of ever more public spaces where music is being used (such as shops, clubs, restaurants, pubs
and hairdressing salons and supporting the deployment of copyright inspectors to enforce these policies and prosecute
outlets engaging in the unlicensed use of music (1992: 13).
The goal for recording companies before the pervasiveness of digital compression was to
own, control, monitor and diversify revenue sites by copyright regulation. When alternative
collaborative and community media channels and social networking sites started to increase in
scale and scope and the Creative Commons licensing procedure emerged, applications for
ownership and copyright started to decline. Distribution through digital platforms meant that
the business model of the recording industry transformed. One model for profit-making by
recording companies was displaced. Compression files allowed music to move through the
web and not be limited by a physical release. There are now millions of opportunities to hear,
rip and download music without cost, or at least without paying a record company.
Music has been shared illegally for decades. Throughout the 1970s, the slogan ‘home-out
taping is killing music’ attempted to educate consumers that shared music was stolen music.
MP3s and Napster did not invent music sharing. It was digitization that increased the speed and
scale of that sharing. The sale of compact discs has markedly declined and illegal sharing has
increased, but there are other explanations for the decline of music sales. The increasing
popularity of DVDs and computer games has meant that there is greater competition for the
entertainment dollar. In this context, John Oswald believed that ‘the real headache for the
writers of copyright has been the new electronic contrivances, including digital samples of
sound and their accountant cousins, computers’ (2004: 132). This difficulty for regulators is
not a musical problem. It is an issue of how technology is managed.
At each point of platform migration and change, there has been a fear expressed by those
institutions that had gained financially from the prior medium and the laws that enabled a profit
to be made. There was profound confusion between the different arms of the same
corporations. Sony music and Sony hardware embody this contradiction, with the same
company that sold MP3 players also attacking the purchasers of their hardware who then
download MP3s. Keith Negus noted that, ‘The struggles through which new technologies are
produced and introduced can have a considerable impact on how contracts are drawn up and
how the “product” of popular music is conceptualized’ (1999: 33). The release of sheet music
did not see the destruction of copyright laws. But the major fears, scares and revisions from the
application of these Copyright Acts in analogue environments started to emerge with the
arrival of digital music in the early 1980s. With the advent of the compact disc, it became
possible to copy music without any loss in quality. Digitization ensured that the copy would be
identical to the original. The CD was an unprotected digital format, without either Digital
Rights Management or copy protection. By the early 1990s, the computing firms like Apple,
Dell, Compaq and Hewlett Packard that manufactured hardware, saw future potential markets
in sound technology. Computers started to include CD Roms, slowly replacing floppy disc
drives. Concurrently, computer speakers improved. As the hardware improved through a
combination of DVD and CD Rom drives and an internet connection, consumers could
suddenly not only copy music from compact discs, they could also then move that music
through the web. The speed of shifting MP3 files online was slowed because there was no
index that could locate a particular song, performer and file. Shawn Fanning wrote this
programme for MP3 file organization through Napster and that allowed the first peer-to-peer
system. It was at this point that Universal, Warner, Sony BMG and EMI pursued legal action.
With Napster curtailed, other improved file sharing applications emerged through Kazaa,
Morpheus, iMesh, Grokster, Limewire and Bit Torrent. The profound paradox of copyright in
peer-to-peer environments is that when a file is downloaded it is copied and not taken. As
Mark Katz explained,
File sharing does not necessarily deprive copyright holders of income. If every person who would have downloaded
copyrighted music decided instead to buy the CD, copyright holders would indeed stand to make huge sums of money.
But that is not the same as saying that downloading is depriving copyright holders of that money (2004: 180).
Katz’s point is an important one. The desire for music audiences to download free music is
distinct from the desire to purchase music. It cannot be assumed that these audiences are of the
same size or sociological profile. Put simply, the compact disc no longer became the
convenient, viable and economical mode through which to purchase music. Digitized – but
illegal – music was free. The selling of sonic content – via marketing models such as iTunes –
may not be appropriate in the long term. Others models, based on membership or
subscriptions, may become a new way to package music. James Boyle is clear on this. He
states that, ‘the goal of copyright is to encourage the production of, and public access to,
cultural works. It has done its job in encouraging production. Now it operates as a fence to
discourage access’ (2008: 224). His worry is that all the attention of record companies and
musicians is paid to controlling the availability and commercialization of old music, rather
than to developing new performers, new sounds and new music. While the focus is on control
and not access, the past rather than the present, popular music is a frontline topic in legal
controls over cultural formations.
Intellectual property is a complex issue in popular music studies, as there are a finite
number of notes, chords and time signatures. Repetition of melodies and rhythms is inevitable.
Strange legal challenges have been waged about originality, such as the supposed relationship
between The Chiffons’ ‘He’s So Fine’ and George Harrison’s ‘My Sweet Lord’. The judge
ruled in 1976 that Harrison had ‘subconsciously plagiarized’. While there was no link or
relationship with the lyrics, the chord progressions were similar (Bright Tunes Music vs.
George Harrison). Harrison paid Bright Tunes Music US$587,000 for the copyright violation
and acquired the rights to ‘He’s So Fine’ to avoid any such claims in the future (Song Fact,
2010). The Chiffons later recorded a version of ‘My Sweet Lord’ Popular music is embedded
in the contradictions of popular culture with the demarcation between art and industry, and
production versus consumption. Predictably, the ownership of music rather than the
consumption of music will be a huge field for future debate, legislative threat and innovative
rights management.
Key Questions
1. What are intellectual property rights?
2. Is sampling the ‘theft’ of a sound?
3. Why has IP become an even more important issue after the arrival of MP3s?
4. What is the difference between copying music and stealing music? Is there a difference?
Further Reading
Cloonan, M. (2007) Popular Music and the State in the UK. Aldershot: Ashgate.
Demers, J. (2006) Steal This Music: How Intellectual Property Law Affects Musical Creativity.
Athens: University of Georgia Press.
Perelman, M. (2002) Steal This Idea: Intellectual Property Rights and the Corporate
Confiscation of Creativity. New York: Palgrave.
Weintraub, A. and Yung, B. (2009) Music and Cultural Rights. Champaign: University of Illinois
Press.
Sonic sources
Harrison, G. (1970) My Sweet Lord.
The Chiffons (1962) He’s So Fine.
The Chiffons (1975) My Sweet Lord.
The Clash (1978) I Fought The Law.
Visual sources
Girl Talk: Everyone Borrows Intellectual Property, Even Kings of Leon, YouTube,
http://www.youtube.com/watch?v=tQfHTHb2_Wg
Intellectual Property Rights Debate, YouTube, http://www.youtube.com/watch?v=H2jSabFiYQY
Lang, M. Understanding Intellectual Property and Copyright, YouTube,
http://www.youtube.com/watch?v=Ngps0BnLlUg
Netanel, N. Understanding Music Copyrights with Neil Netanel, YouTube,
http://www.youtube.com/watch?v=7r7zmSJW-n8
Web sources
Collins, K. (2008) ‘Grand Theft Audio?: Video Games and Licensed IP’. Music and the Moving
Image, 1.1: http://mmi.press.uiuc.edu/1.1/collins.html and
http://www.gamessound.com/texts/collinsGTA.pdf
Copyright Infringement Project, UCLA Law, http://cip.law.ucla.edu/
Creative Commons, www.creativecommons.org
Musicians’ Intellectual Law and Resource List, http://www.aracnet.com/~schornj/index.shtml

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