One Music Copyright Can Be Better Than Two

Music copyright was developed in nineteenth century France as a response to an obvious unfairness. Bars and restaurants could hire musicians to entertain their customers, raising sales and profits. The restaurant owner benefited, the musicians got paid, but the composers got nothing. No credible argument was offered that the sheet music sales or future commissions were enough to justify free use of music. Civilisation (represented by the French law courts) demanded that composers should share the economic value their music created.

This was of course long before the advent of sound recording technology, and the emergence of the music recording industry. The principle of tradable rights in the activities that generate revenue, either directly or indirectly, was later carried across to this new class of recording producers and performers. The assumptions on which these rights rested were clear and simple. A composer created a work, some musicians performed it, and it was enjoyed by the public either live or recorded. The recordings could be replicated and the copies sold, and the interests of the parties survived throughout the web of economic activity.

Of course it turned out that some composers were also excellent performers, and some made recordings of their own and others’ music. The separation of interests nevertheless gave composers, whose interest is mostly in having more performances and recordings of a work rather than fewer, an important protection. Coercion to leave the market free of competition for a new waltz, or a new song, is always a danger; attempts would amount to restraint of trade so the system protected against such conflicts of interest quite well.

Students of 20th century music will know however that the recording process developed in ways that were far more creative than anticipated. Magnetic tape proved to be a flexible and compliant medium, allowing for delay, loops, multi-tracking, and the cut and splice. Electronics made it possible to alter sound, extending what could be achieved through mechanics and acoustics. And then of course the digital revolution exploded the world of possible sound, handing musicians a superabundance of tools, tricks, and techniques.

And so it is that in the 21st century the recording and the composition are often one and the same; a single creative work, by a single person or creative team, frequently involving nothing that could be recognised as a traditional musical performance. No musical notation or instruction set pre-exists the creation, and any notion of a tune and harmonic structure is left to be extracted after the fact. Consequently the likelihood of other performances and other recordings is greatly lessened. But the world of copyright really struggles to provide an efficient way to manage these creations.

Copyright insists on the separation of composition and recording even when none is asked for or indicated, and this creates massive inefficiency and absurdity in licensing and payment. For musicians who don’t know their way around the industry it’s easy to miss out on a percentage of each and every sale or stream as the compositions side is licensed through a complex international network of societies and agencies representing music publishers. Even with good administration each unique sale or stream creates a secondary flow of money which moves mysteriously (and slowly!) around the world, in contrast to the normal monthly accounting and payment cycle for the recordings.

The suggestion therefor is that at the creator’s option a new unitary copyright in the combination of composition and audio object could replace the dual system that causes so many inefficiencies. Until and unless a composition is extracted and performed separately no other rights would be needed to ensure that the creators have the control and compensation that is now so imperfectly effected. These new rights could swerve the traditional music publishing world entirely, saving huge amounts of unnecessary data and processing. Using someone else’s composition and claiming a unitary right would of course be fraud, and a much more serious and risky offence than infringement. New technology is anyway in the pipeline to identify music similarly to how audio fingerprinting identifies recordings. A fingerprint of the original master file could provide the basis for highly reliable proof of title, and form the basis of a combined supply chain and royalty payment framework.

Such a new right could happily live alongside today’s dual system, using just enough of the existing infrastructure as necessary, and no more. In a world of fragmentation and disputes, where even the biggest music users claim not to be able to identify many of the creators who deserve and need payment for their work, a simple and commercial solution is overdue.

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