Copyright and copyright law are commonly misunderstood by creative individuals, consumers and the layperson alike. The digital age has profoundly changed the context in which creative works are made, sold and disseminated, and copyright control has been weakened, overall, by digital technology and the Internet. The concept and practice of copyright control is well-established and will doubtless continue into the future; however, it is uncertain how effective copyright enforcement will be across the board. One of the main aims of copyright, and the enforcement of copyright law, is to ensure that creative producers can be guaranteed some income from sales or distribution of their work. Without copyright, creative individuals ranging from songwriters to authors and website developers could be cut off from the copyright-related income that their creative activities generate. In this aspect, the absence of copyright would mean the absence of income for many creative individuals who earn through their copyrighted creations. In a world where established authors and musicians suddenly lost copyright-derived income, it is likely that they would have to turn to other employment for income. This could mean that, quite simply, the time previously dedicated to the creation of new works was now being used in non-creative employment. However, it could conversely be argued that individuals who are driven to create art are driven by the creative impulse rather than commercial concerns - the cliché of the "starving artist" is based on this idea that some people are driven to create new works regardless of the commercial viability or success of these works in the marketplace.
Johns indicates that the aspect of enforcement is key in determining whether copyright protects existing works and allows artists to continue creating new works. Before digital media became the norm in many if not most areas of creative activity, copyright infringement - such as photocopying copyrighted printed material or sheet music, for example - was more time-consuming and also more easily detected. Digital file-sharing is almost instant, and can be essentially anonymous - this form of copyright infringement has become so widespread that enforcement of copyright protection and copyright law has become very difficult in the digital world. As the law itself continues to change, development of copyright-infringement detection techniques is perhaps just as important as changes in legislation and copyright control. One major change in terms of detection and enforcement is the international or location-less nature of much modern copyright infringement - material shared over the Internet cannot be said to truly exist in one geographical jurisdiction or another. Further, laws and regulations pertaining to copyright vary in different territories - certain aspects of U.S. copyright law, for example, differ from U.K. regulations. International or online copyright therefore can be particularly difficult to enforce.
Copyright law can be understood within the framework, or theoretical perspective, of music as a cultural product. Griswold discusses the history and formation of early copyright legislation, in the context of American literature during the nineteenth century. At this time, the U.S. literature market was protected by copyright law - works written within the United States were afforded copyright protection within the United States; foreign-authored literature was not protected under U.S. copyright law. This situation pushed U.S. authors to create literature that was notably different from foreign-authored literature. When the foreign-authored literature was available for free, U.S. authors had to write literature that was different enough to entice readers to pay for domestic literature. Therefore, a distinctly U.S. style of literature emerged, differentiated from the British literature that was freely available in the United States at that time. When copyright protection in the U.S. was extended to cover foreign-authored works, Griswold notes that the U.S. style of writing became more similar to that of the British - there was less pressure for U.S. writers to be "different". A similar impetus exists in modern music - if creators want audiences to pay for their musical-cultural product, they have to find a way to make it different and distinctive. A general return to live music as a form of income is one way that musicians are differentiating their "product" and their "brand."
In contemporary music, copyright law pertaining to the re-use of material is particularly interesting. In a postmodern world, existing pieces of copyrighted art are commonly re-used in new creations. For example, many hip-hop artists use existing samples of music as the basis for new tracks. Early rappers used classic funk and soul records as the sources of their backing tracks, samples and "breaks", with DJs manipulating the sound of the record in playback through "scratching" techniques. When the recorded music being used in this way is under copyright, it is necessary for the new creator to licence the music for use in the new composition or creation. Permission to re-use a specific sample or piece of music can be refused, and this can lead to a change in the style or success of an individual artist or group whose method of working is reliant on recycling existing music into new forms and new cultural product. When hip-hop emerged and became mainstream in the 1980s, this use of short samples of existing music was not typically considered as a form of copyright infringement, but rather as a way of paying homage to musical and cultural roots. However, subsequent case law in the U.S. determined that this kind of use of pre-existing recordings constituted infringements of the various intellectual-property rights of the copyright holders on the original recordings.
Wikstrom argues that, in many areas of creative activity, a true "creative industry" has been replaced by a "copyright industry" (p.17). Wikstrom's argument is that all industrial efforts are, by their nature, creative in at least some aspect. According to Wikstrom, 'copyright legislation is what makes it possible to commodify a musical work, be it a song, an arrangement, a recording etc.' (p.17) Therefore, creative personalities must be developed and branded in a marketplace driven by the copyright industry. A clear contemporary example of such branding in action would be the pop singer Miley Cyrus. Her career has been based in no small part on the development of a specific personal and visual image; without visuals, the average listener would be hard pressed to recognise Cyrus's voice in an audio-only recording.
The current situation regarding copyright legislation and enforcement of that legislation privileges original creations, and the individual creator of new work that exists in a tangible form. However, much new artistic innovation and creation happens in different ways. For example, some musicians are primarily professional improvisers rather than composers. Improvisations are naturally more difficult to protect with copyright than non-improvised, notated musical compositions. Further, certain creative artists work in collaborative situations, in which authorship of a new work is shared between multiple members of a group. Another knotty area for copyright consideration is the use of deliberate quotation of other creative work, whether attributed or unattributed, obvious or opaque. Classical-music composers from Bach to Bartok to James Macmillan have frequently used existing musical themes as the basis for new compositions (Born and Hesmondhalgh). Such reference to musical material of the past can be a way to frame and enrich a new composition or piece of music - for example, quoted snippets of well-known lyrics in a new song can give a frame of reference, a mood or a new twist to the words of the current song. Alternatively, a composer may use an existing theme, melody or even the "style" of an existing musician or work as a deliberate pastiche or homage. Others may "hide" a musical or artistic quotation within a new work, in such a way that it is not heard or recognised by the average listener. Such considered, intentional use of small aspects of an existing work is different in scope and artistic effect to large-scale plagiarism, in which a musician copies an existing work without creating a new meaning or form from the pre-existing material.
George indicates that format is important in determining the likely copyright protection, and enforcement, a particular work is afforded. Within the modern popular-music industry, for example, sound recordings have long been the primary cultural product that creative individuals are attempting to sell to consumers. In the classical-music world, the sheet-music industry is significant; there is no analogous large market for sheet music in popular music. The advent of Google Books, for example, has had a negative impact on sheet music sales - if a musical score is available in its entirety via Google Books, the consumer is less likely to pay full price for a printed copy. According to George, 'the record industry began as a stepchild of the sheet-music business, since popular tunes originally were consumed primarily through the sale of sheet music. From World War I through the mid-1920s, advances in technology permitted an explosion in record sales, causing music industry historians to dub this period the "golden age". Sheet music is particularly vulnerable to copyright infringement, and therefore lost income for creators, as it is typically much shorter than literature. Copying or scanning a musical score is usually much quicker and easier than copying or scanning a whole novel or book. The price of sheet music also often commonly outstrips the price of a paperback book. Therefore, there is an economic incentive, and easily-available technology, for cash-strapped individuals to infringe copyright of sheet music and other easily copy-able cultural products.
Lessig indicates that a system has evolved in which certain actors in the music industry have - and wish to maintain - power, privilege and profit. Simply put, some creative actors gain more income from their copyrighted works than others. Certain forms of cultural product are privileged over others, both in the open marketplace and in terms of copyright protection afforded. Lessig indicates: 'as the law is architected just now, it clearly favors [sic] one kind of culture over another' (p.97). The economically-dominant culture in the music-industry marketplace has a direct interest in remaining economically-dominant and therefore profitable. Therefore, copyright law and enforcement efforts tend to develop in such a way that existing commercial interests are protected, and existing privilege is perpetuated. As twentieth-century copyright has grown from the notational traditions of sheet music, into the mass-produced recordings of the CD era, so the industry's laws have protected and perpetuated these forms of music. Less privileged, or structurally novel, forms of art - such as that based heavily on a collaborative or chance-driven mode of creation, for example - is likely to be afforded relatively little protection in terms of either copyright or contracts.
Technological change has challenged copyright law and enforcement. Rojek indicates that technological change - both in terms of development and access to technology - has created an environment which is much more accessible to the amateur. There are many forms of creative expression, production and distribution available to the amateur as well as the professional. As mentioned earlier, digital photography has become widely available; the cost of electronic musical instruments, audio software and digital distribution for recorded music has decreased dramatically. It is quite possible for amateur musicians to home-record, produce and distribute their music for free, and often such auteurs are not concerned about copyright or commercialisation of their own music. Those creative forms that are still difficult for the layperson to access or create are perhaps those that still enjoy robust copyright protection, and continue to produce income for their creators. Certain forms of art are always going to be more broadly profitable than others, and the landscape is constantly changing in terms of which artistic forms are the most commercially exploitable via copyright, or otherwise. Sadly, the current situation regarding the relationship between copyright, income and creation of new work would appear to involve effective de-funding of certain artistic forms as cultural product. The sale of recorded music is no longer a significant source of income for many musicians; journalists and travel writers are finding themselves out of work as "new" media channels use the public to provide content, or outsource writing to content mills that pay writers a fraction of established rates. Crowd sourced literature published online - for example, Wikipedia - is not really covered by copyright, and may be putting established writers and researchers out of work. When copyright is abandoned in favour of open content, there is of course a risk that the creative work produced will not be authoritative or factually correct.
In certain areas of creative work, copyright may already be, or be in the process of becoming, practically unenforceable. As noted earlier, certain forms of work have always been more easily copyrighted than others, with those works not existing in a fixed form being particularly difficult to copyright. Digital technology, and the Internet, has undermined traditional, geographical modes of copyright control. The formats in which creative products can be duplicated or shared further undermine copyright, and therefore undermine the livelihoods of creative professionals who had relied on copyright-related income. Humans are creative by nature, and it is unlikely that - without copyright - people would stop creating new works. However, the types of new works that can practicably be created in the absence of copyright and related income are limited. A world without meaningful copyright protection and enforcement may suffer a decrease in the diversity of new work that can be created.
Born.G and Hesmondhalgh.D, eds. Western Music and Its Others: Difference, Appropriation and Representation in Music. Berkeley: University.
George, N.The Death of Rhythm and Blues. NY: Pub Penguin.
Hesmondhalgh, D. The Cultural Industries. SAGE Publishing.
Lessig, L. Remix. NY: Bloomsbury Academic.
Rojek, P. Pop Music, Pop Culture. Cambridge: Polity Press.
Wikstrom , P. The Music Industry. Cambridge: Polity Press.
References: Journal Articles
Dicola, P. An Economic View of the Legal Restrictions on Musical Borrowing and Appropriation in Biagioli, M, Jaszi, P. & Woodmansee, M, Making and unmaking intellectual property: creative production in legal and cultural perspective, 235-249 (University of Chicago Press).
Greenfield and Osborn.'Understanding Commercial Contracts: The Place of Contractual Theory' Journal of Contract Law, Vol. 23,
Griswold, W. 'American character and the American novel', American Journal of Sociology 86, pp. 740-65.
Johns, A, "The property police", in Biagioli, M, Jaszi, P. & Woodmansee, M, Making and unmaking intellectual property: creative production in legal and cultural perspective, 199-213, University of Chicago Press.
Peterson, R.A. 'Why 1955? Explaining the advent of rock music', Popular Music 9, pp. 97-116.
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