The Thin of It

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 20^th 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.