Thursday, June 23, 2011

American Copyright Law
with Respect to Music & the Digital Dilemma


Today, a principle of American law states that the author of a work may reap rewar
ds from their intellectual creativity for their lifetime and beyond. Copyright law is the protection provided by the government for an individual’s creativity or intellectual property including literary, dramatic, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, musical, and audiovisual creations. Recent advances in technology and trends in the music industry are forcing the government to rethink copyright law, especially protective law in the boom of the digital age.

With the rapid advance of technology and means of delivering digital content, the measures taken to protect the artist need change – there is a great need for a paradigm shift. Through the centuries artists have been concerned over new developments wiping out established markets. In 17th century England, writers thought the lending library would kill the need for book stores. In the 20th century, photocopying machines were going to be the end of the publishing business, and videotape the end of the movie industry. In each of these cases, the new technology actually developed more new markets than it affected the existing markets. Today, the music industry has been thrown into the ring first when it comes to dealing with the legalities and protections offered (or not) by current federal copyright law with respect to the newest wave - digital intellectual property.

Development of American Copyright

American copyright law originated in fifteenth century England with the invention of the printing press. In the beginning, copyright law only pertained to printed books and was a privilege given to printers alone. Original European copyright laws were imposed to regulate and control output from printers. Governments across Europe enforced copyright laws to establish control over printing businesses, requiring them to have official licenses in order to trade or publish books. A license gave a printer the exclusive right to print particular works for a fixed period of years, in order to prevent others from printing the same work during that period of time. The licenses could only grant rights to print in the territory that had granted them, and prohibited the import of foreign printing. The license was in effect for 14 years with a renewal for another 14 years if the author was still alive.

In 1709, Queen Anne’s parliament drafted and put into effect changes to copyright law in order to transfer its rights and privileges to the author as opposed to the printer. The 1710 Statute of Anne asserted to encourage learning by protecting the rights of the published author and the purchasers of his works. Seventy years later, J.S. Bach sued a publisher for selling unauthorized copies of his compositions and the Statute of Anne was revised to include the publication of sheet music.

By 1790, the United States’ first congress passed the first federal copyright law as part of the U.S. Constitution. The Act of 1790 covered books, maps, and charts. Like European copyright law before it, protecting music rights was not included. The expanded Copyright Act of 1831 did include protection laws for musical composition, but only the reproduction rights for printed sheet music. The term for protection for this federal copyright was 28 years plus a 14 year renewal period.

In Europe during this same period, France was leading the way to internationalize and protect the rights of the author (composer); a concept in contrast to the American copyright which dealt more with economic concerns. By 1887, the Berne Convention instated copyright to protect all creative works upon creation with no need to be asserted, declared, or registered. For countries adhering to this convention, the copyright was in effect across borders. There were eight original participating countries: France, Belgium, Germany, Italy, Spain, Switzerland, Tunisia, and the UK. Today 76 countries comply with Berne Convention for the creative copyright, including the US.

By the end of the 19th century, copyright laws were in place to protect the rights of the composer and established music publishing as a viable business. It covered the right to create and print music, as well as, the right to collect revenue from all performance and recording rights. While each country’s government set their own copyright laws, lawmakers were starting to have an international perspective on protecting the world of music.

The Revision of the U.S. Copyright Act of 1909 addressed the difficulty of balancing the public interest with the rights of the composer. It specifically addressed securing adequate return to the composer for all public use of his works.

The next major revision to U.S. copyright law occurred in 1976. The 1976 Revision Act addressed two primary arenas: 1) technological advances and the increased ability to copy works, and 2) amending the statute in accordance with international copyright law, practices, and policies in anticipation of U.S. adherence to the Berne Convention (U.S. became the 25th signatory in 1988). The 1976 Revision also addressed for the first time “fair use.” It defined the four factors to consider in copying and using copyrighted works in teaching, learning, reporting, or researching situations: purpose and character of use, nature of the copyrighted work, amount and substantiality of the portion used in relation to the whole, and the effect of its use on the market.

Issues and Controversy Effecting Copyright Revision

Today it is understood that copyrighted music is the intellectual property of the composer, artist, publishing company, and recording company. Over the years, the record industry has had a monopoly on the way society listens to music. The advent of new technology has caused great controversy in the music industry and congress has had to act to update federal law to stay current with the changing times.

Technology Trends

In 1972, as a result of widespread copyright infringement due to copying vinyl records to magnetic tape, sound recordings became copyrightable for the first time. Soon controversy exploded again in the music industry, during the 1980’s, with the advent recordable audio cassettes. Consumers could now duplicate sound recordings from the radio, vinyl records, other cassette tapes, and compact disks. By 1992, Congress enacted the Audio Home Recording Act allowing consumers the freedom to transfer and record their music without being criminally or civilly liable of copyright infringement. The law also allowed the recording of television broadcasts to VCR for personal use only, not to be sold or distributed.

The distribution of music over the internet has caused significant controversy and debate over the digital copyright. It started in 1999 when a peer-to-peer file sharing program allowed computer users to swap and share digital music files, MP3. Consumers received Napster and the MP3 format with great enthusiasm. They started pulling MP3 files from their own CD’s (this is known as ripping). MP3 files were small enough in size that they could be copied, downloaded, and uploaded to be enjoyed in a variety of ways. Napster even became a popular venue for independent artists seeking fame and fortune.

As millions of consumers logged onto Napster, trading millions of sound recordings, thoughts of copyright infringement starting raising its ugly head. The recording industry as a whole file suit against Napster filing the company violated copyright law by facilitating other people’s infringement. Napster argued that the MP3 files were never in the company’s possession, therefore they were not guilty of copyright infringement. In the interim of all the court cases, some college students were charged and fined for copyright infringement, but in the end, Napster was found the most liable and ordered to shutdown.

Today operates as a subscription based site where subscribers can “Listen to unlimited music wherever you go and save your favorites to play even when you are not connected.” They profess to be the world’s largest provider of digital music collection with over 12 million full-length songs, no downloading or sharing involved. Subscribers can simply connect to on their internet-ready computers, phones, televisions, iPods, iPads, and etc.

As Napster fell, Apple Computer launched their online music store, iTunes. This Apple service allows users to pay for and legally download songs and albums. These downloaded songs are become the user’s permanent property to be burned to CDs, saved to up to three computers, or transferred to iPod digital music players. Unlike subscription services, users will not lose their rights to their purchased music.

Musical Trends

The 1994 U.S. Supreme Court copyright case established commercial parody qualifies as fair use. This case centered around the 2 Live Crew composition and recording of “Pretty Woman,” a parody of Roy Orbison’s ballad “Oh, Pretty Woman.” The group’s management had been denied their license request to produce and release the parody, but they did anyway. The Supreme Court overturned previous rulings reasoning that the fair use clause for “amount and substantiality” of what 2 Live Crew copied from the original lines and characteristic was aimed at setting up the parody and that the composition as a whole departed markedly from the original.

Over the last couple of decades there has been a new trend in popular music, known as sampling, that has been causing copyright battles. Sampling is the use of fragments of existing produced music, spoken words from movies or TV, in the composition of a new recording. It has actually been going on since the 1960’s when James Tenney created Collage #1 (“Blue Suede”) with samples from “Blue Suede Shoes” by Elvis Presley. Many other artists at that time were experimenting with new tape-recording technology rearranging patterns and using snippets of speeches or news broadcasts.

The U.S. is the cradle of sampling and has also seen the first sampling litigation cases. In 1991, the copy infringement case against Grand Upright Music Ltd. and artist Biz Markie set a precedent in the Hip Hop Industry and the way the courts would deal with sampling. Henceforth, an artist must ensure all music sampling is preapproved by copyright owners.

Copyright cases involving sampling abound. A recent case, being criticized by many, is holding that sampling of even three notes could warrant copyright infringement. Today most artists are in the habit of obtaining prior authorization to using samples.


Through the centuries, music has played a key role in changing copyright law to protect the rights of the artist. As technology has changed, American society has changed the way we are entertained by music. Prior to 1940, society was entertained by playing and performing published music and copyright laws were in effect to protect publishers and composers of sheet music. Today, American’s have ready access to radio, television, internet, and sound recordings – we are now primarily entertained by professional entertainers, and copyright law now covers audio and visual recordings. Through it all, copyright law has changed to protect publishers, composers, and manufacturers of sound recordings.

In today’s U.S. economy, the role of information products and services is growing at a rapid and phenomenal rate. The federal government is having to change copyright law by adding an Information Sector that addresses economic importance, as well as, the kinship of publishing (print and software), motion picture and sound recording, radio and television broadcasting, libraries, and information and data processing services. The vast use of technology and the global reach of the World Wide Web have added substantially to the production and abundance of information in digital form.

Lawmakers have their work cut out for them staying on top of those who would intentionally take advantage of the world’s largest library; the world’s largest copying machine.


Figure 1:, Article: “United States Copyright Law.”

Figure 2:, Article: “Napster.”

Source of Information, Article: “Berne Convention for the Protection of Literary and Artistic works.”, Article: “Statute of Anne.”, The National Academies Press, “The Digital Dilemma,” 2000.

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