Tech - the musician’s enemy


writer icon Iegor Bakhariev     Sabine Van Erp   |   Tech     🕐 12. Mar. 2018

Technological advancements have opened up new realms for musicians, while copyright law arguably still pushes it back.

Lana Del Rey v Radiohead
As another case of copyright infringement in the music industry hits the news, this time involving Lana Del Rey and Radiohead. It brings up the question of whether copyright law corresponds to the realities of technology and the music industry today.

An existing problem in relation to copyright protected expressions is that copyright law prohibits almost any type of borrowing from pre-existing material. Technology has been pushing the music industry forward, and musical works are increasing in speed of creation.

Consequently, a vast number of lawsuits have emerged. Already in 1963, the legendary surf-rock band The Beach Boys were sued by Chuck Berry over the song Surfin' the U.S.A. Although the case was settled outside of court, it triggered a number of similar cases. Since then, artists such as Led Zeppelin, George Harrison, Johnny Cash, the Verve, Robin Thicke and Coldplay have been sued for alleged infringements of someone else's work. In most of the cases that made it to court, the defendant lost. The majority of cases saw the defendant settle out of court.

Sued for her song
In the aforementioned case, Lana Del Rey tweeted that she is being sued by Radiohead over her song Get Free. Interestingly, Radiohead's publishers publicly deny the existence of a lawsuit. However, they do request that Radiohead receive acknowledgement for her song. Del Rey allegedly borrowed the melody from the iconic song Creep. Even though excerpts from the two songs may sound similar, they happen to be composed around a well-established pattern of chords that are played together to form several existing songs. Does this show that legal rules should not be slavishly imposed on the creative process? That some musical progressions should be kept in the public domain for other musicians to build upon? Is copyright law neglecting its function to promote and disseminate creative material, instead of facilitating creativity? One must consider the developments within the music industry related to digital technologies, and the social aspects of different creative processes.

The basis for the discussion
The question is not whether copyright law provides incentives for the creation of original musical works. Rather, the question is whether copyright law increases the availability and use of intellectual products more than it restricts such availability and use. It should be remembered that artistic work does not appear out of thin air. Knowledge is a cumulative notion. Composers build on what came before them. Musicians from Bach and Beethoven, to Rihanna and Radiohead, borrowed something from their predecessors during their creative process. Moreover, economists have also demonstrated that efficient creation of new works requires both access to old works as well as the permission to use them.

Technological advancements and the implications on music
Ever since Thomas Edison invented the phonograph in 1877, music has been experiencing a continuous technological revolution. Thanks to the internet and evolving technologies, almost any aspect of everyday life has changed. The music industry is no exception. In a matter of 30 years, musical consumption has moved from analogue vinyl records and cassettes to streaming and downloading, from paper sheets to digital scores. Even though buying records on vinyl and cassettes is a way to experience a renaissance, the majority of listeners enjoy having access to music at any time. Whether it is while riding the metro, relaxing at home, or going out for a run, streaming services make it possible.

The way we produce music
Technology has also changed how music is produced. There are a number of computer programs that make it possible to create music at home. 50 years ago the first synthesiser was used in pop music. Synthesiser’s are capable of reproducing the sound of most musical instruments without the requirement to play each one individually. What 10 or 20 years ago required a great deal of money, is now possible for much less. Consequently, the amount of creative material produced on an everyday basis has increased in comparison to the previous century.

However, this does not diminish the labour of musicians. Rather it means that the process of creating music has become more accessible. Technology has created new ways of making music. With that comes new ways of communicating music to the public. Technology also offers new ways of using pre-existing material, such as sampling or modifying it with the use of a particular software. Although the musical world has changed considerably over the last hundred years, the legal standards in relation to musical works have stayed the same. It is, therefore, important to look at the legal norms once more.

Copyright framework in relation to the creative process
Copyright law is usually understood as the area of intellectual property law that protects literary and artistic creations, including musical works, books, films, etc. According to the international standards of copyright law, the rights holder is awarded exclusive rights. These rights are further defined in the legislation and shall last for the lifetime of the creator, plus a minimum of 50 years after the creation of a work.

Among the rights awarded to the rights holder, the right of reproduction is the most important for the discussion at hand. Once a piece of musical work is borrowed and played by another artist, without acknowledgement from the original writer, the reproduction right is violated. The only way there will be no infringement if a particular use falls under exceptions and limitations provided by national legislators.

Drawing the line between permissible use and the abuse of copyright has always been a difficult exercise. Despite existing directives that try to harmonise copyright law in the EU, the current system provides neither sufficient flexibility for copyright limitations nor sufficient legal certainty for users of copyrighted material. Strictly looking at the developments in the EU law, copyright law will not allow any justification for transformative use. The only deviation from this rule is when it is covered by one of the exceptions provided in law, or is regarded an independent creation.

Damaging to a writer’s income
One of the suggested solutions is to narrow the scope of protection awarded by the law in order to allow some transformative use. Some might argue that narrowing down the scope can lead to taking the writer's income. However, recent studies have shown that incomes from selling or reproduction rights do not necessarily affect the creator's interest. For example, private copying currently represents less than 1% of total writers' revenues, and thus musicians are only marginally affected by the private copying levy.

Scholars in the field of musicology have argued that an average musician earns little from copyright sources, while the largest revenue category for musicians is live performance at 28%. Only 5 to 10% is composed of money from sound recordings. If borrowing from pre-existing material would affect so little of the original writer's income, it is obvious that prohibiting any borrowing hampers creativity more than it benefits the original rights holder.

Creativity as a social component
It should be remembered that creativity appears to be the most important human process behind copyrighted works. If the law attempts to shape human behaviour in various ways, then it is worthwhile to address behavioural and cognitive science when examining legal issues.

The problem is that while cognitive science approaches borrowing from prior expressions as an inherent part of creativity, the law prohibits such behaviour, and treats it as infringement. As well as the technical rules of composition, the creative process is also affected by cultural and social rules.

In other words, there are certain social rules for musical expressions. For example, when composing a lullaby one will not use dissonant chords, loud volumes, or fast rhythms. Meanwhile, some genres of music have their history in borrowing from other works. In hip-hop, jazz, folk and blues, it has been a social rule to use the pre-existing material as the roots for a new creation. Moreover, the creative process is bound to certain norms.

A certain freedom in borrowing
Many feel that changes in music production cannot be ignored. These changes are due to the progress or tech and the evolution of making music. Some have tried to put forward the idea that, when such realities are taken into consideration, a certain freedom in borrowing should be permitted. If earnings for the original writer are reasonable, and the loss of giving up potential income is offset by the gains that new creations generate, it should be reasonable to make the rules regarding transformative use less restrictive. In Canada, the Copyright Act was amended to allow transformative use in the case of non-commercial user-generated content. Is this a step in the right direction towards recognising the reality of music production today?

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