Joe Bennett (Bath Spa University): Who Writes the Songs? Creative Practice and Intellectual Property in Popular Music’s Digital Production Chain
In music, two objects can be owned – the composition (sometimes including a lyric as a ‘literary work’), and the sound recording. The separation of song and recording is the basis on which the music industry distributes monies, but equitable IP distribution becomes more difficult when creative individuals’ contributions (of melody, lyric, arrangement, performance or production) overlap or are non-‐linearly created. In the 1960s it became increasingly common for performers to write their own songs; from the 1980s, democratisation of recording technologies gave songwriters and performers the opportunity to self-‐produce; and by the early 21st century most digital home studios had more production power than the world’s leading studios had enjoyed only 30 years earlier. 1 These changes in creative context mean that songwriters no longer need to notate their work as they did in the early 20th century; production, lyric, melodic, arrangement and performance elements can be created, edited and adapted at any stage of the creative process. Non-‐linear creative practice in song production has implications for ownership and copyright that may challenge the historical privileging of melody & lyric in popular music’s legal hierarchy. 2 This paper will provide examples of creative practice, and discuss the legal, musicological and ethical questions that 21st century song production presents for the music industry and for future music creators.
Martin Scherzinger (New York University): Authors or Commons? Neither, but Both!
The reach of private property rights, it seems, is widening. Over the last two decades, scholars in a variety of disciplines have tackled the impact of IP law on practices of politics, science, economics, law and culture. Not only has IP been extended to new information objects (from databases and software designs to biological seed lines, bacteria, genetically engineered life forms and DNA sequences), but the lengths of time for which protection is granted have been substantially extended for nearly all objects. At the same time, we witness today an outpouring of academic and popular scholarship in critical response to the widening reach of the IP concept. Like an evil twin, the progressive IP and cyberlaw scholarship calls for an expansion of the commons, emphasizes the productive delinking of cultural practice from cultural policy, and offers countervailing forces to the enclosure of the commons. Instead of identifying the expanding commons as inherently progressive, this paper argues that the peculiar co-mingling of the commons with its privatized antithesis productively underwrites new networks of exchange value. It is the opportunistic conceptual mélange between private property and public domain – whereby one side of the conceptual pole readily supplements (as alibi) for the other – that prevents the proper functioning of either conceptual principle in practice. Not property alone, but the very opposition between property and commons becomes the bastard concept for power. The paper describes contemporary cases of proprietary interests vested in anti-property as a paradoxical capitalist expansion of the laboring commons.
It seems that property rights are expanding in many domains. The ‘length of term’ is expanding, sometimes as much as 120 years. Legal literature tends to follow it with ‘like an evil twin its own shadowly branch of inverted morality’.
- Has copyright become delinked from its original mandate?
- Have excesses of (over) protection undermined some laws (e.g. patents of amino acids undermining innovation and research)?
Three types of IP ‘enclosure’:
- Property/land rights (18th and 19thC)
- Cultural commons enclosure – now becoming proprietary
- Future planning – copyrights protecting affecting as-yet-unachieved innovation. A ‘pre-emptive strike on the future’
In music we have pre-emptive constraints (e.g. DRM – constraints on on pausing, syncing etc) which undermines other laws that allow legitimate copying. Martin argues that the swing has gone too far towards protectiveness. He contrasts Lessig style arguments with less permissive, legally-supported ones.
Mismatch between anthropological reality and human behaviour. Informal ‘habitae’ are not implied by the law – free software being an example. There is a social network that is out of sync with the property laws that guard them. When people are at odds with the law and don’t care, we have a mismatch that needs to be resolved. Music is at the vanguard of developments – the MP3 effect was an early example of the genie leaving the bottle, generating mass criminality in the context of current laws. Three quarters of global information consumption is arguably ‘outside the law’. The ‘author is dead’ argument is very powerful – intertextuality is an ontological axiom of art. “Any time you do anything [in the arts], you cannot not break the law”. The cautious and comprised artist who ‘checks with the lawyers first’ arguably distorts the creative process, placing a constraint on communication.
The logic of ‘likeness’ is no longer the argument. However mashed up or adapted a sample may be, if it can be traced back to the source it is considered plagiarism. Transformativeness is paradoxical when viewed through the lens of law. Thresholds of similarity don’t line up with artistic practice, especially in self-derivative artforms (Martin cites Nickelback’s songs This is How You Remind Me and Someday which are in some respects the same song.
Copyright distorts the creative process because different types of copying have different costs. The author is irreducibly put into pastiche but must achieve originality. A fully postmodern approach would lead to the development of a ‘generalised commons’. An author without the author and a commons without a commons devolves both parties’ independent powers. Powerful stakeholders often assert their influence by embracing both sides of the author/commons dichotomy. A Beyoncé video is essentially a ‘collaboration of thousands’.
Beyoncé’s (Mozambique) dancers receive no reward for their input. Martin quotes the choreographer’s paradoxical statement;
While Beyoncé is the pop star, Gatson is quick to give credit to all of the dancers in the clip, including some that the team enlisted from Africa. “We say, ‘Share the light, you sparkle brighter,’ and we share our light with a lot of new, creative people…
Limelight is the reward rather than ‘true’ authorship. If we were serious about rewarding authorship we would find a mechanism to reward and acknowledge them. Only a small subset of creators is compensated. Disney – Grimm bros and Rudyard Kipling turned into unique IP.
Martin now turns to the ‘false romance of the commons’. Gold becomes iron – everything has its roots in Africa (so the romance of authenticity argument goes). It is perilous to mix the global public domain and the cultural concept of the innovative author. Billions of dollars of IP fees are paid from the ‘global south’ to the ‘global north’ (the latter owning more IP in many fields). The benefits and joys of access are geographically differential. Internet penetration is around 1% in Africa. Differentian access, differential constitution, asymmetric copyright.
Sam Bennett (Australian National University): Virtual Remixing: Competition, Creative Commons and Copyright
In the last decade, remixing practice has changed from a niche, often concealed, highly specialised skill, into a marketing tool, promotional opportunity and point of focus for online music technology communities. This paper critically analyses examples drawn from 3 identifiable categories of online remix site:
– Creative commons sites such as ‘ccMixter’ offer users unlimited access to royalty free sample sets for remixing;
– Online remix competition hosting sites, such as ‘Indaba music’, host official remix competitions, often with prize incentives; and
– Stem remixing ‘events’ organised by individual commercial recording artists.
Yet such practice presents a dichotomy: on the one hand, remix competitions and creative commons sites allow users access into previously unheard multi track recordings, exposing both the performance and production aspects of composite parts of an original multi track recording. Prior knowledge or remixing ability is not a prerequisite and remixing events are open to anyone, anywhere, with a computer and DAW. On the other hand, commercial recording artists launching remix competitions and ‘events’ ensure full creative and copyright control by: creating instrument and vocal stems with their original effects processing in tact; limiting what the user hears either by song choice or stem formulation; ensuring only professional remix engineers are employed for commercially released remixes; and, retaining copyrights on all adaptations of the original work. Building on research published in The Oxford Handbook on Music & Virtuality, this paper evaluates the benefits and limitations of online stem remixing from the perspective of recording artist, hosting site and online remixer.
Ananay Aguilar (University of Cambridge): The Value of Performance in Law: Performers’ Rights and Creativity
British copyright law has been criticised for privileging musical elements and practices that have been important in the conceptualisation of classical music, above those which have developed independently of that tradition. This conceptualisation has been associated with classical music’s aesthetic concept of the artwork: both law and the artwork treat composition as the culmination of creative genius, while performance is attributed little or no creative status. This asymmetry is further complicated by the domination of capital over labour in the protection of sound recordings, as copyright law vests authorship in the company that bears the costs of making and issuing the recording: performers are denied authorship over the record of their own performance. While the 1988 Copyright, Designs, and Patents Act introduced rights in performance, the depth and breadth of legal protection for performance-based musical practices, like most popular musics, remain limited. To overcome this asymmetry, commentators have focussed on how the concept of authorship might be extended to embrace collaborative practices that fall outside of the practices of classical music. My current project explores an alternative approach that places performers’ rights at the centre of the discussion. In this presentation I will attend to relevant case law to outline two main issues: firstly, the separation of creativity between composition and performance implied by these rights and, secondly, their relation to recent technological developments.
Lionel Bently (University of Cambridge): De-naturalizing Musical Authorship
Determinations of who counts as an ‘author’ of a musical work has a number of legal consequences. Most obviously, it governs who count as the first owners of copyright, and thus who benefits from revenue streams associated with publishing/ recording (mechanicals) and performance (including broadcasting and streaming). Secondly, it is relevant to the duration of copyright – the term of copyright in music and lyrics being calculated by reference (i.e. currently seventy years after) the death of the author (or in the case of co-authorship the last author to die). Third, being an author entitles a person to be named as such when a work is published or recordings are distributed: authors are granted what is known as the ‘moral right’ of attribution.
Copyright law has tended to assume that the legal concept of authorship maps onto a natural, flesh-and-blood, human beings. It thus is typically taken for granted that identifying who is an author for one purpose (say, ownership) necessarily operates to identify the author for other purposes (term, attribution). In so doing, the dominant arena for determining authorship concerns ownership. Here the rules have developed rather restrictively, so as to exclude from the category of authors a perhaps surprising range of contributions (as seen most clearly in the Spandau Ballet case, Hadley v Kemp). But the effect of such an approach is not just to exclude contributors from counting as owners, but also from being entitled to attribution.
Certainly, one can see the logic in assuming that the word ‘author’ means the same thing in different parts of a statute, and indeed the convenience in so doing. However, if we consider the legal task of ascribing authorship as informed by matters of policy, the assumed unity or integrity of ‘authorship’ in copyright seems problematic. The policy considerations that underpin restricting who counts as an author in the three domains – ownership, term and attribution – are very different. By exploring these policies in more detail, I want to suggest that copyright law could respond more flexibly to a diverse range of creative practices if it recognised that the legal concept of authorship is not ‘natural’. One consequence of so doing might at least to be to afford rights of attribution to a wider array of contributors than are currently accommodated by the moral right of attribution.
Keith Negus / John Street / Adam Behr: Digitisation and the Politics of Copying in Popular Music Culture
Musicians are at the forefront of discussions around revenue loss in the music industry, yet often neglected in existing studies which usually focus on corporate perspectives or audience activities. Drawing on extensive interviews with musicians operating in different genres – and at different points in their careers – within the broad field of popular music this paper presents initial observations from an investigation of how the notion of ‘original’ ideas and rights of access (and hence copyright) are negotiated by practicing musicians. How do they regard duplicating without permission in order to circulate free copies or bootlegs? How do they see the practice of appropriating, reusing, sampling and imitating? How does this relate to the existing legal and policy framework?