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Out of Tune: Why Copyright Law Needs Music Lessons
Carys Craig & GuIllaume Laroche
Intellectual Property for the 21st Century Interdisciplinary Approaches, B Courtney Doagoo, Mistrale Goudreau, Madelaine Saginur and Teresa Scassa, Eds. (Toronto: Irwin Law, 2014)
(This excerpt is published pursuant to a Creative Commons licence.)
B. THE LAW OF MUSIC COPYRIGHT INFRINGEMENT
1) Why Music Is Special
Musical works, while different in nature from other categories of copyrightable works, are subject to the same legal principles. Copyright’s one-size-fits-all model means that, notwithstanding the unique characteristics of any particular form of intellectual expression, the legal rules are applied across the board. The test for originality — whether a work involved the ex- ercise of non-trivial skill and judgment — applies equally to works of visual art and television listings. The distinction between general ideas and more specific authorial expression remains the same for a dramatic play or computer software code. Significantly, the determination of what constitutes a substantial part of a work involves the same considerations when applied to a cartoon character brooch and the film of a marching band. In one sense, the broad applicability of copyright principles is the law’s greatest strength. It has allowed copyright to adapt to vast changes in our cultural and technological environment, evolving from a limited right to copy books into a global system that defines legal rights over intellectual expression in the digital age. In another sense, however, general copyright principles overlook the specific dimensions of particular kinds of expressive activities and their cultural context. To the extent that the nature of music and the realities of its creation and enjoyment raise unique considerations, the copyright system should, we suggest, offer a more tailored legal approach consistent with its broader policy goals.
The claim that music is in some way unique amongst the categories of works that copyright protects seems at once obvious and in need of some justification. We see broadly four ways in which music differs, at least in de- gree if not in form, from most other types of copyrighted works. The first is that perhaps more than any other art form, music is engaged with and real- ized through its performance. Music does not develop on paper, nor is it interacted with via visual or tactile means. Rather, the most basic medium of music involves sound waves sent through the air into the ears of an audience and experienced over time. The work does not simply exist as a painting might, it must be brought to life every time it is to be experienced. “[I]n no other type of art does time form so much the basis of, and is so strongly interwoven in, any aspect of artistic manifestation than in music.” Few people are just as satisfied to quietly read a musical score, in the way that they would a book, as they are to attend a performance of the work or listen to a recording; performances in music are just better.
Second, music affords biological benefits that elude common understanding. It is not especially surprising that music helps refine the brain’s processing of sounds, but musicians’ accrued abilities in the learning of foreign languages and in mathematical thinking are somewhat more astounding. While engagement with any art will refine the senses used to interact with the art, music is special insofar as it trains the brain in areas seemingly unrelated to music itself. The neurological, physiological, and psychological responses that hearing music can generate are also well documented and remarkable. Such studies support what we might intuitively know to be true: “More so than any other artistic endeavours, music possesses ethereal qualities that infiltrates and permeates multiple facets of our existence in a complex manner.”
Third, music is a language in its own right. The field of music theory seeks to illuminate how this language works, but one need not be a music theorist to grasp the field’s basic truths; after all, even people with little musical education can tell when young children learning to play their instruments have accidentally hit the “wrong” note. There is something about the sound that we know does not belong, even though the vast majority of us could not explain why that note is incorrect whereas the one next to it on the keyboard sounds “right.” If the sounds of the language of music are familiar, its mechanics are not.
Fourth, and most importantly for copyright, borrowing and copying among musicians is commonplace in the music world and an accepted part of musical practice. For the most part, taking someone else’s musical idea and developing it in a new way is largely understood as part of musical culture and thus entirely consistent with cultural norms. In fact, the relatedness of musical ideas is a core theme of the study of music composition. Contemporary classical composers study concepts such as musical unity and variation in the works of the great masters. In jazz, studying “standards” and their re-composition according to performers’ unique musical tastes drives much musical education and innovation. “Covers” in popular music fulfill the same goals, albeit in a different style. Sampling and digital manipulation in hip-hop music also exemplify transformative re-use and its centrality in modern music-making. In some sense, music creation depends on the borrowing and adaptation of material passed from one musician to another. This is not to suggest, of course, that musicians are the only artists who borrow from one another, and that only music is therefore worthy of special consideration in copyright; copyright law generally assumes a romantic vision of independent origination that sits uneasily with the realities of human creativity and culture at large. Yet, the combination of a clear and established culture of musical borrowing, together with the special characteristics of musical expression (the importance of genres, performance techniques, and aural perception in particular), magnifies the mismatch between creative practice and the structures (and strictures) of copyright law.
Taken as a whole, these features suggest that we do not engage with music in the same way that we engage with the visual or literary arts, nor does music engender only musical appreciation. There is something more fundamental in the nature of musical expression and the human response that it generates. The features of musical culture and the ubiquity of musical borrowing reveal a dramatic divergence between the shared norms and practices of music culture and a doctrinal copyright approach. Hence, there is something to be said about music as a unique category within copyright, both deserving and in need of special consideration.
2 Théberge v Galerie d’Art du Petit Champlain Inc, 2002 SCC 34 at para 30.
3 CCH Canadian v Law Society of Upper Canada, 2004 SCC 13 at para 16 [CCH].
4 King Features Syndicate Inc v O and M Kleeman Ltd,  AC 417 HL; Hawkes & Son (Lon-
don) Ltd v Paramount Film Service Ltd,  1 Ch 593 [Hawkes & Son].
5 We note in passing that choreography is similarly a performance-based media, realized through dance, typically to music. It would not be surprising to find that it shares with music some of the copyright problems that we identify.
6 Andreas Rahmatian, “Music and Creativity as Perceived by Copyright Law” (2005) 3 Intellectual Property Quarterly 267 at 272–73 [footnote omitted].
7 Alexandra Parbery-Clark et al, “Musician Enhancement for Speech-In-Noise” (2009) 30:6 Ear & Hearing 653.
8 Patrick CM Wong et al, “Musical Experience Shapes Human Brainstem Encoding of Linguistic Pitch Patterns” (2007) 10:4 Nature Neuroscience 420.
9 Kathryn Vaughn, “Music and Mathematics: Modest Support for the Oft-Claimed Rela- tionship” (2000) 34:3/4 Journal of Aesthetic Education 149.
10 Reading novels or poetry improves one’s reading skills, cooking refines one’s palette, etc.
11 See Keyes, above note 1 at 420–23; see generally Daniel J Levitin, This is Your Brain on
Music: The Science of a Human Obsession (New York: Penguin Group, 2006).
12 Keyes, above note 1 at 420–21 [footnote omitted].
13 Ibid at 427 (offering numerous examples).
14 Use of prior recordings as the musical object for transformation presents another layer of copyright issues relating to the “neighbouring rights” of performers and sound recording makers (see Copyright Act, RSC 1985, c C-42, ss 15–21 [Copyright Act]). In order to focus on prima facie infringement of copyright in musical works, we exclude neighbouring rights issues from our analysis. Note that the potential for the assertion of neighbouring rights to prevent de minimis uses and fair dealing with recorded music is another highly problematic feature of copyright law in the realm of music: see, for example, Bridgeport Music Inc v Dimension Films, 410 F 3d 792 (6th Cir 2005).
15 For a critique of copyright law’s vision of the author, originality, and cultural practices, see Carys J Craig, Copyright, Communication and Culture: Towards a Relational Theory of Copyright Law (Northamption, MA: Edward Elgar Press, 2011).
16 See Keyes, above note 1 at 426–30; see also Olufunmilayo B Arewa, “From JC Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context” (2006) 84:2 NC L Rev 547.