Open vs. Closed List Copyright Approaches for Music in the UK

Introduction: Technology and the Copyright Challenge

Technology has quickly taken over several key areas of entertainment. From journalism to music, everything seems to be shifting towards online and streaming formats rather than hard copies. With emerging technologies and increasing internet usage, debates have arisen over the topic of artistic and literary works — more specifically, copyright law and the open-list approach versus the closed-list approach. While governments change policy and law according to need and evolution, it is important to look back on how the EU dealt with music, performances, and broadcasts in order to understand why an open-list approach to music and copyright would be a better fit than a closed one. Case law will also provide supplementary information and help demonstrate the real-world application and efficacy of closed or open-list policy as applied to music.

The Historical Framework: Berne, Phonograms, and Early Exclusions

In the 1960s, phonograms, performances, and databases became topics of interest in relation to Article 2(1) of the Berne Convention for the Protection of Literary and Artistic Works. While there were those who 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" (Derclaye, 2009, p. 51). This meant that governments 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 already-created works rather than original creations in themselves.

Computer programs received the same analysis. For several years under Article 2(1) of Berne, computer programs did not qualify as "literary works." It was only at the national level, after some time had passed, that computer programs received any copyright protection as literary works — a result of aggressive lobbying by software manufacturers seeking effective and rapid protection for their products. In much the same way, the music industry has more recently attempted to use copyright law to encompass everything a musician creates, from songs to performances and broadcasts.

Closed-List Copyright: The UK CDPA Model

The UK's common law system, a clear example of a closed-list approach to subject matter, adopts through the Copyright, Designs and Patents Act 1988 (CDPA) protection for strictly eight categories of works. This means that if an artist wishes to protect his or her creative work, it must be submitted within one of these eight categories; failure to do so will result in no copyright protection, as famously demonstrated in Creation Records v News Group Newspapers [1997] EMLR 444. Each category has exhaustive definitions and includes graphic and musical works, among others. "Musical work" is exhaustively defined within section 3(1) of the CDPA as "a work consisting of music, exclusive of any words or action intended to be sung, spoken, or performed with the music" (Hilty and Nerisson, 2012, p. 892).

While that definition provides some guidance, it fails to give sufficient clarification as to what can or cannot be interpreted as music. Apart from lyrics and music needing to be separately protected, courts must interpret what constitutes "music," bringing to the forefront cases such as Sawkins v Hyperion Records [2005] RPC 32, 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."

Even with such interpretive demands for musical works, dramatic and cinematographic works have taken a 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). 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 that authorial works must satisfy. However, because of this, they receive a narrower range of protection compared to that available for authorial works (Norowzian v Arks (No 1) [1998] FSR 394, 400).

Conclusion: The Case for an Open-List Approach

Music has evolved. Technology has created various platforms for music to thrive, and because of these latest innovations in music production and music sharing, UK copyright laws must change in order to protect the creative works of artists. A closed-list approach to copyright law has served English courts for a long time, because music once arrived in only a few forms — via radio or in some tangible physical format. However, in the last decade, music has moved well beyond radio and CDs.

Artists share music in the modern era via phone apps such as the iTunes store, through SoundCloud, Spotify, and social media platforms like YouTube and Facebook (Aufderheide and Jaszi, 2011). Music production has also evolved to include snippets of original works that fall within the realm of fair use and must equally be protected under copyright law. With an open-list approach to copyright law, English courts can expand the definitions of copyright protection to suit the needs of the current era.

Subjective interpretation may be something English courts fear, but many countries have adopted the open-list approach with considerable success. France, for example, has this kind of mindset and handles copyright infringement and copyright law in relation to music and artistic property accordingly. With the music industry changing so rapidly, it makes sense for English courts to change and adapt to suit the needs of a dynamic music environment. Remixes are becoming increasingly popular and require a robust interpretation of copyright law in order to protect artists and their work.

A closed-list approach means adhering to a narrow and defined interpretation of copyright law. An open-list approach means adhering to principles of open-mindedness that will provide the kind of evolution the creative world requires. A clearer interpretation may yield some improvements within a closed-list system; however, most Member States have already made the transition to an open-list system. In addition, with ever-greater integration of technology with music and media, the UK requires harmonization of copyright law to suit the needs of artists and creators.

The French IPC has experienced some challenges in the interpretation of law under an open-list system, but France — like other Member States — has grown accustomed to the simpler and more readily applicable system, making it a logical progression for the UK as well. Open-minded interpretation of copyright law can have its drawbacks: people may claim copyright protection without justification. However, the malleable essence of an open-list approach means that fewer creators will have to jump through legal hurdles in order to protect their work.

Music is meant to be shared and enjoyed by the public. Music is also meant to be protected against those who wish to copy and exploit original works for personal or financial gain. As the next decade unfolds, the UK must adapt to suit the needs of a constantly changing music and media environment. Closed-list approaches have their advantages, but those advantages diminish in the present day and, more importantly, in the future. An open-list approach to copyright law is the logical and necessary direction for UK law to take.