By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.
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Opening today's Music and Intellectual Property conference in one of London's most elegant follies, the Prudential Building [if it's a folly, it's hardly prudential, says Merpel], Gwilym Harbottle (Hogarth Chambers) gave a masterly overview of the history and scope of copyright in the United Kingdom and the patchwork of entitlements that govern musical works and their recordings. Topically he cited yesterday's award of the perennially controversial Turner Prize to Susan Philipsz for what appears to be a performance of a musical work masquerading as an artistic work. Gwilym also reviewed the argument as to whether music is effectively a matter of tune or a matter of sound -- an issue at the heart of Sawkins v Hyperion, where the Court of Appeal for England and Wales affirmed that the making of textual emendations to old out-of-copyright manuscripts, including the addition of a bass line, vested in that emendation the status of an original musical work even though it reproduced a melody that was old.
Tackling moral rights, Gwilym reviewed the British commitment (if that's not too strong a word) to the rights of acknowledgement of authorship and of integrity. The various exceptions to these rights, and the fact that the right to be acknowledged as author -- the paternity right -- must be asserted in accordance with various formalities before it can be exercised, rather reduce these rights' effectiveness. Obvious problems arise with rock groups, which may evolve works between them and where the group' personnel may change over time. What's more, quantifying loss where the paternity right is breached is also a somewhat conjectural exercise. The right to the integrity of a work sparked some speculation in the light of Confetti Records v Warner (the "shizzle my nizzle" case, in which the judge famously declared rap to be a foreign language).
Vanitas, represented by (among
other things, a musical instrument
and a score)
Musicologist and IP academic Andreas Rahmatian (Glasgow University) then took the podium, giving his insights into the notion of copyright as "property" and the relevance of "property" to music. Andreas asked how something as immaterial as music, which is over as soon as it is performed, can be regarded as having any sort of permanence. Being ephemeral, it is completely time-bound and quite ineffective a a means of establishing one's immortality. Without the physical score, music has no form -- and there is in essence no requirement for music's fixation in physical form. It is only through a legal device that music is turned into property, becoming a form of chattel -- the legal device of copyright. The copyright and the fixation remain separate conceptually different; while the fixation embodies it, transmission of the one does not include the other.
Lalande
Andreas approved of the lack of a definition of music in the UK copyright legislation, since its flexibility enables it to move with time, but he cautioned that there is a distinction between "music" and "musical work". Thus in Sawkins v Hyperion the composer Lalande wrote music, but Sawkins' edition was a musical work -- which is what copyright protects. The former is where the composer's originality lies and it is that which is given life by its performance, while the latter is recognised as property by virtue of the "sweat of the brow" of the person who puts it together. Under copyright law, "originality" does not have to be creative though, as the courts have affirmed -- though they sometimes get it wrong, as in Hadley v Kemp in 1999 (the 'Spandau Ballet' case).
Stuffed -- looks authentic
but doesn't respond when called
On the issue of fixation, Andreas observed that the requirement is a creature of the common law, not of civil law jurisdictions where it's just a matter of evidence. Sound recording is actually a better means of fixation than writing the score down -- the sound is "live" (cf the written score, which Andreas analogised to a stuffed cat -- it looks right but doesn't actually do anything). What happens, though, is that the fixation which embodies a musical work has its own copyright, even though no extra originality has gone into it over the performance of the music in the first place. So essentially a sound recording is a fungible chattel, an act of "propertisation" which can embrace public domain music as well as copyright-protected work.
