Music copyright is elitist. Many theorists
have made this claim. They have pointed to the fact that copyright law tends to
equate music with its notated form. It therefore over-privileges aspects that
can be written down - principally melody and harmony – while it deals unfairly
with those elements that can only be loosely captured in a score, such as
rhythm and timbre. It is suited to classical music; it is not suited to popular
music.
There is
evidence of this bias in case law. The Spandau Ballet case, for example, stemmed
from a dispute between guitarist Gary Kemp, who claimed that he was the sole
author of the group’s songs because he initiated them, and the other members of
the band, who argued that they should be regarded as co-authors because they
fleshed out Kemp’s compositions with their musical arrangements. Park J found
in Kemp’s favour, noting that
A composer
can ‘hear’ the sound of his composition in his mind before he ever hears it
played. Beethoven could hear his music in this sense even when he was deaf.
When Mr. Kemp was devising his songs the sound which he had in his musical
consciousness must surely have been the sound they would have when performed by
Spandau Ballet, not the sound they would have when sung by Mr. Kemp alone to
the accompaniment just of his own guitar.
This decision rested on the conception of the
genius romantic composer.
It
should nevertheless be remembered that most songwriting agreements do not come
to court. In addition, songwriters are free to make their own decisions about
musical worth. They can credit groove and timbre if they want to. In fact,
common practice amongst hip-hop and R&B composers is to give 50% of the
compositional credits to the author(s) of the rhythm track. If there is an
elitist bias, it is at a judicial level; it is not enforced by the legislation
itself.
There
is a classical music bias that has been overlooked, however. Academics have
focused on the copyright in songs. They have not addressed the elitism of sound
recording copyright, which it could be argued has had more profound effects. It
is in this area that the bias is legislatively embedded.
Sound
recordings have regularly been equated with film in copyright law. There is a
fundamental difference, nonetheless. Films have the possibility of two
copyrights. There is one that recognises financial and organisational skills,
which is awarded to the producer, and another that recognises the original
creativity in films, which is usually awarded to the director. In contrast,
there is usually only one copyright in sound recordings. It recognises
financial input and organisational skills, and is commonly claimed by the
record company.
Why is there
no creative copyright in sound recordings? Classical music can take some of the
blame. Film directors have been awarded a copyright because of their genius.
These auteurs take the base material
of the film script and convert it into a new artistic work (this conception of
directors is itself a reflection of the romantic bias of copyright law). If
sound recording were to receive a similar copyright, evidence would need to be
provided of creative individuals who take the musical composition and by virtue
of their ‘personal and original character’ create a new work, which can be judged
to have artistic merit of its own.
If we look
at popular music, we can see this happening all the time. Records are valued as
much for their production values and the recording ability of the musicians as
they are for the underlying song. The producer and the musicians are not
following the written instructions of a score; they are making musical and
sonic decisions of their own. In contrast, when we turn to classical music, we
are not meant to hear the recording studio
as a compositional tool. Instead, classical music production is dominated by
the ‘concert hall ideal’. The recording is supposed to sound as close to a live
performance as possible. The job of the record producer is to be unobtrusive.
Similarly, the job of the performers is to follow the score. Their creative
genius should be submerged; they are obeying the instructions of the
musical composer.
Sound
recording copyright has been legislated with classical music in mind. Recording
activity has been deemed to be passive at best and damaging at worst. As such,
it is not considered worthy of a creative copyright of its own. It is beyond
the bounds of the Berne Convention, the international agreement that assesses
the creative rights of authors in literary and artistic works. In 1908, British
delegates to the Convention suggested an author’s copyright in sound
recordings, similar to the one that was being created for films. Their proposal
was rejected. Other delegates believed that sound recording was a ‘travesty’,
stating:
the composer
suffers at present moral injury, from the fact that his work is usually
deformed by the necessities of adaptation to the instrument [the gramophone];
the orchestration is re-arranged, melodies are modified because certain notes
register badly; ‘scenas’ are cut, and arranged to suit the length of playing of
the disc.
In Britain in the early 1950s, members of
Gregory Committee assessed the legislation of sound recording copyright by
attending the recording of a Mozart symphony. They reported that there was a
‘very high degree of skill (in part technical, in part musical) called into
play in recording music’, but concluded that recordings ‘approximate more
closely to industrial products than to original literary or musical works’. As
such, in the consequent 1956 Copyright Act there was only one copyright in
sound recordings, which was awarded to the manufacturer. This remains the case
in current British legislation. The Copyright, Designs and Patents Act
recognises the director and the producer as separate authors of a film. When it
comes to sound recording, however, there is a solitary recipient of copyright:
‘the person by whom the arrangements necessary for the making of the recording
... are undertaken’.
Brazil,
Chile, China, Costa Rica, the Dominican Republic, Iceland, Peru, Turkey,
Uruguay, Zaire and the countries of the European Union all recognise two
copyrights in film. They have one that recognises creative skill, while the
other recognises the producer’s duties. In contrast, Ghana is the only country
that recognises two sound recording copyrights.
It could be
argued that this issue crosses the lines of the copyright in sound recordings
and the copyright in songs. If recorded performances and record production were
recognised as composition, then this artistry could be absorbed into songwriting
credits. In many instances, in fact, this already happens. For example, the
majority of hit songs in the UK charts last year were co-authored by professional
songwriters, recording artists and (sometimes) record producers. Nevertheless,
it can be argued conversely that these credits are the result of a defect in
copyright law. In many instances composition, performance and production
continue to be separate skills. Musicians and record producers are only
documenting their artistic practice as composition because the law gives them
insufficient recognition elsewhere. If there were a creative copyright for
sound recording it would enable this artistic practice to be recognised
appropriately. The elitist bias of legislation would be properly located and
addressed.
