UK Copyright Laws and Music

Technology has quickly taken over several key areas of entertainment. From journals to music, everything seems to make the shift towards online and streaming versus hard copy. With emerging technologies and increasing internet usage, debates arose over the topic of artistic and literary works. More specifically copyright law and the open list approach versus the closed list approach.

While the government changes policy and law according to need and evolution, it is important to look back on how the EU dealt with music and things like performances and broadcasts in order to see why an open list approach to music and copyright would be a better fit versus a closed one. Cases will also provide additional supplementary information as well as help provide an understanding of real world application and efficacy of closed or open list policy to music.

In the 1960's phonograms, performances, and databases became a topic of interest in relation to Article 2(1) of Berne (Berne Convention for the Protection of Literary and Artistic Works). While there were those that wished to adapt it to the needs of the time, Berne failed to do so and led to 'the establishment of a separate international regime in the form of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations 1961' [footnoteRef:1] (Derclaye, 2009, p. 51).

This meant the government did not recognise broadcasts and phonograms as artistic and literary works because Article 2(1) of Berne considered these as industrial works that lacked an author or creative activity. Performances also were not protected as they were considered interpretations of created works, not created works altogether. [1: Derclaye, E. (2009). Research handbook on the future of EU copyright. Cheltenham, UK: Edward Elgar. p. 51] Next, computer programs received the same analysis. Computer programs for several years under Article 2(1) of Berne did not qualify as 'literary works'.

After some time passed, it was only on the national level that computer programs received some copyright protection as literary works. This was due to the aggressive lobbying of software manufacturers so that they may gain effective and quick protection for their products. In much the same way the music industry now has attempted to use copyright law to encompass everything a musician creates from songs to performances and broadcasts.

The UK's common law system, a perfect example of a closed list approach to subject matter, adopts through the CDPA or Copyright Designs and Patents Act of 1988 protection to strictly eight, only eight categories of works. This means that if an artist desires protection for his or her creative works, he or she must submit his or her creation within any of the eight categories and failure to do so will warrant no copyright protection as famously evidenced by the case of Creation Records v News Group Newspapers [1997] EMLR 444 [footnoteRef:2].

Each category has definitions that are exhaustive in nature and include graphic and musical work among other works. 'Musical work' is exhaustively defined within section 3(1): 'A work consisting of music, exclusive of any words or action intended to be sung, spoken, or performed with the music'[footnoteRef:3] (Hilty and Ne-risson, 2012, p. 892). [2: Lambert, J. (2008). NIPC Law: Copyright: Creation Records Ltd. v News Group. [online] Nipclaw.blogspot.com. Available at: http://nipclaw.blogspot.com/2008/09/copyright-creation-records-ltd-v-news.html [Accessed 25 Mar. 2016].] [3: Hilty, R. and Ne-risson, S. (2012). Balancing copyright-- a survey of national approaches. Berlin: Springer.

p. 892] While the lengthy definition provides some guidance, it fails to give enough clarification as to what can be interpreted as music and what cannot be interpreted as music. Apart from lyrics and music needing to be separately protected, courts have to interpret what constitutes as 'music' bring to the forefront cases like Sawkins Hyperion Records where Mummery LJ held that: In the absence of a special statutory definition of music, ordinary usage assists: as indicated in the dictionaries, the essence of music is combining sounds for listening to.

Music is not the same as mere noise. The sound of music is intended to produce effects of some kind on the listener's emotions and intellect.

The sounds may be produced by an organised performance on instruments played from a musical score though that is not essential for the existence of the music or of copyright in it.[footnoteRef:4] [4: Sawkins v Hyperion Records [2005] RPC 32, para 53.] Even with such interpretation needed for musical works, dramatic and cinematographic works have taken the more inclusive route leading to helpful instances of copyright protection examination.

Regardless of interpretation and adaptation, UK copyright law does not subsist for musical, dramatic, and literary works unless and until the work has been recorded (Aplin and Davis, 2013, p. 78).[footnoteRef:5] Under the CDPA, entrepreneurial works (sound recordings, published editions, and broadcasts) are regarded as copyright works and do not have to meet the originality requirement like authorial works must. However, because of this, they have a narrower range of protection compared to what is available for authorial works.[footnoteRef:6] [5: Aplin, T. and Davis, J. (2013). European intellectual property law.

Oxford: Oxford university press.] [6: Norowzian v Arks (No 1) [1998] FSR 394, 400.] France, a stark contrast to the UK with regards to copyright law protects the rights of authors within any and all works of the mind, irrespective of form of expression, purpose or merit, or type. This is covered in Article L 112-1 of the IPC or Intellectual Property Code and gives no statutory definitions of what can or cannot establish protectable subject matter marking the first main contrast of the IPC Article with Article 2 of Berne.

The second is only authorial works garner copyright protection. Book II of the IPC handles entrepreneurial works. The last contrast is not having fixation as a requirement for subsistence of copyright (Blom, 2009).[footnoteRef:7] [7: Blom, H. (2009). Property, piracy and punishment. Leiden: Brill.] In recent times there has been some movement towards harmonization of copyright law protection of specific subject matter. These include Term Directives[footnoteRef:8], Databases[footnoteRef:9], and Software[footnoteRef:10].

However, harmonization of copyright law protection should include music production as music production has evolved to include the use of databases, software, and term directives. The world of music has evolved from hard copies and moved towards streaming content and selling content digitally. Digital music copyright stands at the crux of a debate that surrounds the advent of digital music distribution.

With a closed list approach to music production and music in general, it gets hard to define what can be protected under copyright law and what cannot, especially in regards to remixes and other manifestations of music in recent times. [8: Directive 2006/116/EC on the term of protection of copyright and certain related rights (codified version) OJ L372, 27.12.2006, pp. 12-18. ] [9: Directive 96/9/EC on the legal protection of databases, [1996] OJ L77/20.] [10: Directive 91/250/EEC on the legal protection of computer programs OJ L12217/5/91, pp. 42-46, Article 1.

] Arguments both against and for the UK's current system of rights management and ownership has become well documented creating clear division among wishing to gain money from having ownership rights to those wishing to consume and produce digital music. If the UK adopts an open list system similar to France's, perhaps interpretation of law will become an easier process. The British Phonographic Industry (BPI) and the Recording Industry Association of America (RIAA) support artists' rights and fight against changes that may change the ownership of an artist's work.

The problem is however, that an artist's work may be interpreted in ways that then become original works themselves and thus need to be recognised and protected under the same laws. As much as it is important to change copyright laws to suit the needs of the present, there are understandable reasons why the UK has yet to adopt an 'open list' approach to copyright and copyright law. The first is, a 'closed list' approach provides certainty that current music trends do not bring.

Although it often times can be difficult to interpret the kinds of subject matter protected by copyright law in court, there are established and identified categories providing certainty in determination of copyright infringement and author rights. Secondly, the 'closed list' approach shows restraint. What this means is that it ensures that copyright law cannot be inappropriately expanded to safeguard specific creations. A good example of this in regards to music production are remixes.

Remixes of a song have been sold as original content thanks in part to fair use and the rapidly growing trend of using what would be considered derivative work as an entirely new interpretation of the original song and thus creating an area of potential copyright contention (Leaffer, 2010, p. 128).[footnoteRef:11] When something is 'set in stone' and regarded as the only possible identifier, then it becomes easier to dismiss new definitions and identifiers, keeping things simple. The best example for this is the case of Kecofa v Lancome[footnoteRef:12].

[11: Leaffer, M. (2010). Understanding copyright law. New Providence, NJ: LexisNexis.] [12: [2006] ECDR 26.] In the Lancome case, under the Netherlands Copyright Act of 1912, Treasure, the defendant's fragrance, was an unlawful reproduction. While in the UK and within a closed list approach, perfumes would not receive such protection, it important to include the possible merits of extending copyright protection to areas that would normally not be deemed appropriate. People like Professor Andrew Christie argued such definite categorization of copyright works generates gaps in protection[footnoteRef:13].

When there are gaps in protection, those looking to profit from the legal mess will do so at the expense of the artist or the audience. [13: Christie, A, 'A Proposal for Simplifying United Kingdom Copyright Law' [2001] EIPR 26, 28.] An 'open list' approach can and close in the gaps of protection for creative works. When a 'closed list' approach goes to court, the degree of technological specificity results in unclear interpretation of what can be qualified as a creative work and what cannot. Such was the case again in Creation Records.

The judges held a 'traditional' view on artistic works and 'art', impacting how the interpreted existing definitions within the CDPA. 'Collage' in a more 'open-minded' approach would be better interpreted. Because of the courts pursuit of objectivity, closure, and certainty, a closed-list approach is favored and leading to a disarray of legality. Anne Barron interprets cases like Creation Records as a typical 'materialist' approach in defining 'artistic work'. This approach is: ..

to focus on the physical embodiments through which visual representations of that type are 'normally' made manifest, and upon the technical processes which 'normally' (i.e. as a matter of ordinary common sense) yield physical items corresponding to the entities mentioned in section 4 [of the CDPA]. In other words, their judgments have proceeded from the aesthetically neutral features of entities assigned by ordinary language use to the classifications within the category, with no reference to whether these entities can claim the status of 'art' (Aplin, 2005, p. 249).[footnoteRef:14] [14: Aplin, T. (2005).

Copyright law in the digital society. Oxford: Hart Pub.] The argument Ms. Barron presents is that courts are driven towards a 'closed list' approach because the courts wish to avoid subjective interpretation and making aesthetic subjective judgments about what would constitute 'artistic' works. This then leads to defining artistic words within a materialist or technical framework. A 'closed list' approach worked in the past. That is because music was confined to a set format. However, as music and technology merged, the definition of 'artistic work' expanded.

English courts need to adopt an 'open list' approach in order to accommodate the ever-expanding definitions of 'artistic work'. The prevailing categories within the CDPA are considered 'closed'. Still, they English courts can use these categories in an 'open-minded' manner. A good example of this is the expansion of the category 'literary works' through the absorption of computer programs including the protection of cinematographic works in the category of 'dramatic works'.

With regards to multimedia, the sub-categories of 'computer program' and 'database' can help in integrating new technological works like streaming media. Some argue that expansive interpretations of categories can amount to inconsistencies and distortions. A recent instance of this is Norowzian v Arks (No 2)[footnoteRef:15]. This case brought up the problem of determining authorship for a dramatic work when there is no adequate category or definitions under the 'film' category. Such examples highlight the lack of understanding in relation to length of protection and as previously mentioned, authorship.

Even with the uncertainty and the potential confusion, the 'open list' approach has several key advantages. [15: Merlin.obs.coe.int. (2016). United Kingdom: Norowzian v. Arks Ltd. and Others. [online] Available at: http://merlin.obs.coe.int/iris/1999/1/article11.en.html [Accessed 25 Mar. 2016].] The first advantage is no exclusion of subject matter simply because it is not deemed to fit within existing enumeration. Works of contemporary art[footnoteRef:16], multimedia, and characters per se can and may qualify as copyrightable subject matter (Rahmatian, 2015, p.

138).[footnoteRef:17] There is greater comprehensiveness and flexibility for the artist in relation to copyright protection. The second advantage is removing the requirement of having to fit subject matter into specific and limiting categories. An open list system removes interpretive gymnastics often seen in courts concerning such cases. Bringing back the French IPC, the cause of multimedia works qualifies as 'works of the mind'. Such ease of application and simplicity removes the complications so frequently seen in closed list system still existing in the UK.

[16: 'Wrapped Reichstag -- Christo' (2003) 34 IIC 570.] [17: Rahmatian, A. (2015). Concepts of Music and Copyright. Cheltenham: Edward Elgar.] Open-list system are not met with just positives. There are always downsides and such downsides for an open-list system would be lack of coherence and inappropriate inclusions of certain creations. An example of this is the unwarranted extension of protection for a 'kinetic scheme' in Technip Benelux BV v Arier Gerhard Goossens[footnoteRef:18].

The Netherlands Supreme Court held that the 'kinetic scheme' may be granted copyright protection because the selection of data displayed its own original form as well as bore the author's personal stamp. There was much criticism for the decision. [18: (2007) 38 IIC 615.] The 'closed list' approach has its advantages and disadvantages as does the 'open list' approach. What the UK must look at then is the number of Member States that have chosen to adopt the 'open list' approach instead of the 'closed list' approach.

While clearer statutory definitions as well as more generous judicial interpretations could resolve some of the frustrations experienced with the 'closed list' approach, it does not take into consideration the rising forms of music and creative works production (Matulionyte?, 2011).[footnoteRef:19] The 'open list' approach does. The UK has begun the process of harmonizing copyright law and adopting a more malleable essence of interpretation as detailed in a 2013 article. [19: Matulionyte?, R. (2011). Law applicable to copyright.

Cheltenham: Edward Elgar.] Since 2009, however, this pragmatic, focus-shifting system has been destabilized by the copyright jurisprudence of the Court of Justice. The Court's judgments in Infopaq International A/S v Danske Dagblades Forening and subsequent cases have dramatically accelerated the pace of copyright harmonization. As a result, it is possible that UK courts may be obliged to adopt a more consistently dematerialized system of copyright law and our courts may have been deprived of tools previously employed to resist unduly broad claims to copyright protection (Griffiths, 2013).[footnoteRef:20] [20: Griffiths, J. (2013).

Dematerialization, Pragmatism and the European Copyright Revolution. Oxford Journal of Legal Studies, 33(4), pp.767-790.] Another article mentions a ruling of the ECJ on the legal protection of designs stating national law cannot deny copyright protection. The ECJ's ruling of 27th January 2011 in Flos v. Semeraro (Cl68/09) interpreted Article 17 of the Directive 98/71/EC on the legal protection of designs in the sense that a national law cannot refuse copyright protection for designs that, even if they have entered into the public domain, are entitled to this protection'.

Further to the ruling, Article 239 of the IPC has been amended in order to expressly recognise copyright protection for industrial designs which bear 'inherent artistic value (Barbieri and SantisStampa, 2014, p. 281).[footnoteRef:21] [21: Barbieri, A. and SantisStampa, F. (2014). Copyright protection for designs: the approach of the Italian courts and Italian law following the decision of the ECJ in Flos.