In Britain, musical compositions gained copyright protection
because they were equated with literature. The 1710 Statute of Anne – the
world’s first copyright Act – awarded copyright to the authors of ‘published
books and other writings’. This Act sought to regulate the book trade and it
was originally conceived as covering the written word only. Nevertheless, it
was successfully argued in the 1777 case of Bach
v Longman that music ‘may be written; and the mode of conveying the ideas
is by signs and marks’. Music could be captured in notated form. Therefore, it
was held to be one of the ‘other writings’ covered by the 1710 Act.
There is a contradiction at the
heart of this legal argument, however. Music could only be equated with books
because literary copyright was no longer being equated with books. Anne Barron
has charted the changing theorisation of copyright in the eighteenth century. It
was formulated as ‘information technology law’ but became ‘intellectual
property law’. The Statute of Anne, according to Barron, had a ‘physicalist’
conception of copyright. She states:
What we find in the 1710 Act, in
fact, is the earliest manifestation of a now familiar legal technique for
dealing with the definitional problems presented by intangible objects of intellectual
property: the products of cultural technologies, and the forms that these
products assume when they become objects of market exchange, are taken as
real-world analogues of, or templates for, the virtual objects to which intellectual
property rights attach.
Here the literary work and the book in which it appears are
as one: ‘to trespass on this object, the defendant would have had to copy
word-for-word by printing a facsimile edition’.
Literary
copyright expanded beyond this physicalist conception, however. According to
Barron, it was eventually viewed in a ‘formalist’ manner instead. This
transformation ‘involved identifying the literary object as an entity whose
existence exceeded these surface details; identifying it, in other words, as a “work”’.
Barron places the formation of this thinking in the ‘literary property debate’
of the 1760s and 1770s, which sought to determine whether there had been a
common law property right in literary compositions prior to the Statue of Anne.
Lawyers argued that ‘paper and print are merely accidents, which serve as
vehicles to convey [...] style and sentiment’, and that literary expression is
‘somewhat intellectual’ and ‘detached from the manuscript or any other physical
existence whatsoever’. Barron states that:
Here, the object of copyright is
imagined to be an expressive form or system of signs, comprising not only
signifiers (words, in the case of a literary object) recorded on, or embedded
in, a physical substrate, but also the signifieds (ideas) to which these are
linked and the manner in which both signifiers and signifieds are connected to
form a unified whole; and what distinguishes this entity from other such
entities is not only the ‘sentiments’ it conveys, but also its author’s
singular mode of thinking and expressing these.
The result was an enlargement of copyright. It expanded in
two ways. First, literary copyright was now ‘thick’. Authors and publishers
could claim infringement for the theft of the particularities of their style
and for the borrowing of sections of their works, whereas in the past they had
only been able to prosecute the full and exact replication of a text. Secondly,
as the idea of what constituted writing became more amorphous, it became
possible to view copyright as encompassing more than just books. The copyright
of music arrived on the back of the formalist reconfiguration of literary
works.
The copyright of musical
compositions was formalist as well. In the 1835 case of D’Almaine v Boosey, Lord Chief Baron determined that:
the most unlettered in music can
distinguish one song from another, and the mere adaptation of the air, either
by changing it to a dance or by transferring it from one instrument to another,
does not, even to common apprehensions, alter the original subject. The ear
tells you that it is the same. The original air requires the aid of genius for
its construction, but a mere mechanic in music can make the adaptation or
accompaniment. Substantially the piracy is where the appropriated music, though
adapted to a different purpose from that of the original, may still be
recognised by the ear. The adding variations makes no difference in the
principle.
Consequently, the copying of musical works does not
have to be exact for infringement to have taken place. Composers have
protection for both their signifiers and their signifieds.
In
addition, their copyright is ‘formalist’ regardless of whether their works are
set down in sheet music or are captured in recordings. This is just. After all,
if a musical composition is a form of writing, then so is a record. The terms
‘phonograph’ and ‘gramophone’ both derive from the Greek for sound writing. The
analogue groove is an audio trace that is written with the ‘pencil of nature’.
In my book Vinyl, I suggest that the groove ‘dissolves the difference
between the signifier and the signified’. At the beginning of the 20th
century, composers were arguing that, because the groove is writing, they
should be able to derive royalties from sound recordings, just as they were
doing from sheet music. In 1905, a French court ruling stated that:
Finding that disks or cylinders are impressed by a stylus under which
they pass; that they receive a graphic notation of spoken words, that the
thought of the author is as though materialized in numerous grooves, then
reproduced in thousands of copies of each disk or cylinder and distributed on
the outside with a special writing, which in the future will undoubtedly be
legible to the eyes and is today
within everyone’s reach as sound; that by virtue of this repetition of
imprinted words, the literary work penetrates the mind of the listener as it
would by means of sight from a book, [therefore] the rules of plagiarism are
applicable to it.
A recording is
nevertheless different to sheet music. Contributing to the early copyright
debates, J. Drummond Robertson, manager of the Gramophone Company (later
to become EMI), argued that each recording has three authors:
(1) The composer who writes the
work; (2) the artist who performs it for the purpose of recording the sound
waves of his voice; and (3) the inventor and mechanician to whom is due the
possibility of registering and subsequently producing in commercial form a
means by which these sound waves, the artist’s voice, may be reproduced.
Robertson and the heads of the other British record
companies proposed a solution: there should be a separate copyright in the
sound recording. This was granted in the Copyright Act 1911, which states that
‘Copyright shall subsist in records,
perforated rolls, and other contrivances by means of which sounds may be
mechanically reproduced, in like manner as if such contrivances were musical
works’. There were various differences, however. First, this copyright was
awarded to the ‘inventor and mechanician’ – the record company. Composers,
meanwhile, were awarded a royalty on each record sold. Performing artists
received no copyright rewards. Second, the duration of copyright was shorter:
because it was awarded to the manufacturers, rather than to the composers or
the performers, it lasted 50 years from the date of release and not for the
life of the author plus 50 years. Third, this copyright was ‘thin’. Sound recording
copyright has always been conceived in physicalist terms. You
cannot prosecute a record for sounding like another record; you can only
prosecute if the sound recording itself is being used. You have to pay for
samples; you do not have to pay for interpolations.
For Jason Toynbee
‘the inferiority of the copyright in the recording, its purely physicalist
definition’, is a good thing. He believes that it mitigates against a ‘hypostatization
of form’. Performers are able to mimic the sounds of other performers, and so
the dialogue of ‘phonographic orality’ is able to spread. We can find evidence
of this in the blues, Dr Dre’s G-Funk, cover version albums of chart hits, and TV
adverts that use soundalike performers. Why, though, should the record
companies have sought a thin copyright rather than a thick one? The answer
surely lies in the fact that it was good for them. By emphasizing the
‘physicalist’ nature of manufactured product, rather the ‘formalist’ style and
sentiment of the composers or performers, it made their claims to the ownership
of copyright appear more just. Formalist copyrights, as Richard Arnold has
noted, ‘protect the creativity of authors expressed in their works’.
Physicalist copyrights, in contrast, ‘protect investment’. This situation has
persisted in the UK for more than a century. Sound recording copyright goes to
the party that makes the arrangements necessary for the recording to be made.
It does not go to the person who creates it.
