1 27 Copyright Lee Marshall Anyone who wants even a rudimentary understanding of how the music industry works needs to have some understanding of copyright. Whereas once such a statement may have been deemed an exaggeration, it is today more commonly accepted as the fortunes of the music industry since the digital turn have garnered almost as much media coverage as the music stars it supports. However, what is also true is that anyone who wants even a rudimentary understanding of copyright needs to have some understanding of the workings of the music industry (or a similar creative industry such as film or publishing) because copyright is not a fixed, abstract, legal principle but is, rather, an outcome of negotiations between interested parties and something re-negotiated in the daily practices of those in the creative industries. While the discourse surrounding copyright often concerns “creativity,” copyright is much more to do with business and, as such, the nuances and inflections of copyright change with the circumstances of those involved in the copyright industries. Writing an introduction to copyright is a hazardous business. For one thing, copyright can be ridiculously complicated, so full of jargon and acronyms that it might be suggested that current laws have been designed for the specific purpose of muddying the principles of copyright and keeping copyright lawyers in employment. There is also the problem that copyright, and the music industry more generally, are fairly fast-moving phenomena (at least compared to academic publishing). The danger here lies in providing details of specific copyright acts or piracy initiatives that may have been superseded well before this chapter is published, let alone in five or ten years’ time. Finally, there is the complication that copyright is not really one thing. This is true in a very specific sense— legally, “copyright” is actually a series of different rights that offers the rights holder the exclusive right to do various things to the work in question (and not just the right to copy)—but it is true in a broader sense, too, because different countries have traditionally had their own copyright traditions (or, in many non-western countries, no tradition of copyright at all). Over time, through international agreements, copyright has become increasingly “harmonized” (a musical term that disguises a great deal of discord), a process that accelerated once intellectual property rights were brought under the remit of the World Trade Organization (WTO) through the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 1994. Even so, there remains a great deal of international variation about how copyright is implemented and enforced, dependent upon different cultural traditions and industrial structures. Truly understanding copyright in the music industry, therefore, involves understanding how it works in Brazil, South Korea, Mexico, Poland, Ukraine and so on, not just how it affects the major US and western European music companies and their music consumers.' To circumvent these hazards, this chapter, as much as possible, deals with the broad principles of copyright. In the next section I will outline and define some of the fundamental terms required 287 288 LEE MARSHALL to understand the basics. The section after explicitly considers some of the ways that copyright works in the music industry. Following this, I shall move on to some more theoretical discussions, considering the rationale and justifications for copyright before considering some criticisms of copyright and particular controversies within the music industry. Finally, there will be a brief discussion of piracy as well as some concluding comments about understanding copyright in the music industry sociologically. Copyright Basics This section is essentially broken down into three questions: what does copyright protect, what does it enable and how long does it last? To begin with the first question, copyright offers protection for cultural expressions that are original (generally referred to as “works’’).^ The word original is extremely important and I will return to it later but, for the time being, I want to concentrate on another important word: “expression.” Copyright protects expressions of ideas, not the ideas themselves. That someone had the idea to write a song about, say, surfing does not mean that someone else cannot write a song on the same topic; what it does mean is that they cannot use the same words, or the same chords or melody, to express that idea. In theories of copyright, this is known as the idea/expression dichotomy. The idea/expression dichotomy exists to ensure that the flow of ideas in society is not restricted by copyright (Vaidhyanathan 2003: 28-34). Because copyright protects expressions, those expressions have to be “fixed,” which means that they have to be recorded in some way so that they have a material reality. When the first copyright act was enacted (the Statute of Anne in the United Kingdom in 1709), the idea of something being fixed was unproblematic—it meant something had to be written down. The kind of culture being protected was also relatively uncontroversial too—it was basically assumed to protect writing (novels, treatises, poems, play scripts and so on). As technology has advanced, however, more and more forms of “fixation” have been brought under the protection of copyright, from plate engraving to photography, moving pictures, sound recording, video games and so on. Forms of culture other than literature also began to be protected, including music, which was protected from 1831 in the United States and from 1842 in the United Kingdom. So, copyright protects original expressions. To whom is copyright granted and what rights does it grant? Copyright comes into being the moment a work is created (a common misconception, especially in the United States—because it was true here until 1976—is that one must register for copyright). It is initially vested in “the author” of a work. Again, in 1709, the idea of the author was relatively unproblematic; it meant the man (it was almost always a man) who wrote the words. As time has gone on, however, this has become more complicated: today companies can be considered as authors and many works are produced under the “work for hire” doctrine whereby companies are treated as the author of works created by their employees.^ Copyright is much more than just the right to copy; it grants the rights holder the exclusive right to perform (or to license another party to perform) certain actions in relation to the work. As well as the right to copy, the most significant rights enabled by copyright include the right to adapt the work, to make “derivative works” (such as making a television show based on a stage play), the right to issue copies of the work to the public, the right to broadcast the work, and the right to perform the work in public. Copyright is therefore sometimes said to consist of a “basket of rights.” Although copyright grants owners the exclusive right to reproduce the work, there are some limits placed on rights holders’ powers. First, a number of countries have defined certain actions that the public can perform without infringing copyright. These are generally known as “fair use” or “fair dealing” provisions. Fair use provisions include the right to reproduce part of a work for criticism or review, for news reporting or for the purpose of parody. In some countries, consumers are entitled COPYRIGHT 289 to make a backup copy of copyrighted works that they have purchased (Marshall 2004; 197-199). Second, there are a small number of “compulsory licenses,” whereby states have determined that some acts do not have to be authorized by the rights holder so long as “equitable remuneration” is made (often at a rate determined by the government). The most significant compulsory licenses relate to broadcasting (broadcasters do not have to request permission to broadcast a song but, in most countries, are required to pay a “set rate” for any song they broadcast) and to the ability to record a song (as soon as a composition has been recorded once, anyone else can record that song without permission so long as they pay the copyright holder the mandatory rate). A third, and very significant, limitation on copyright is that it lasts for a finite period. The rationale for a finite period emphasizes copyright’s cultural rather than economic dimensions. It reflects the understanding that works subject to copyright are actually part of a shared cultural heritage that should be freely accessible to everyone and be available for contemporary creators to use when creating new works (a similar rationale as for the idea/expression dichotomy). Works that have fallen out of copyright (or where copyright was never enforced in the first place) are, therefore, said to be in the “public domain.” However, the duration of copyright has continually expanded, stretching the definition of what might be considered “finite.” This will be discussed further below. Copyright initially vests in the author of a work. However, a vital element of copyright is that it is transferrable—it can be sold.^ This is why copyright is so important to the business of culture. An aspiring novelist or songwriter may own the copyright to their new creation, but it is financially worthless if they do not have the financial capital to print and distribute the work Intermediaries such as publishing companies thus offer to provide the necessary infrastructure to turn the novel or song into a bestseller but require the transferal of copyright in return (or, if the author has more bargaining power, perhaps just a proportion of the copyright income).^ This exchange is why copyright can only be considered within the context of business; it does not really exist in the abstract as it only becomes valuable in a commercial context in which authors are expected to transfer their copyrights to publishers (this was the situation right from the beginning: when petitioning for protection in the 1700s, it is clear that the publishers saw the right as de facto belonging to them rather than the authors).