Copyright and Licensing in Music

by

Diane Parr Walker

• LAST MODIFIED: 26 July 2017
• DOI: 10.1093/obo/9780199757824-0219

Introduction

Copyright law as it applies to the performance and study of existing works and to the creation of new musical works is complex, with gaps in the law in light of new technologies that are often open to differing interpretations. In general, copyright includes the exclusive rights to reproduce and to distribute a created work, as defined by the laws of individual countries. In many countries, these exclusive rights are limited in time and by exceptions such as fair use in an attempt to balance author’s (or copyright holder’s) rights with the rights of the public to use intellectual property in a variety of ways. Additional complexity applies to sound recordings, because these generally involve at least two separate and distinct copyrights, one for the musical composition itself and one for the recording of the composition, which may well be the joint work of several “authors,” including performers, recording and sound engineers, and so on. Copyright and intellectual property legal traditions are considered territorial rights, that is, specific to the jurisdiction of each country. Beginning in the late 19th century, several international conventions and treaties have been developed to harmonize copyright practice among countries. Today, most countries’ copyright laws correlate with the Berne Convention and the World Intellectual Property Organization’s (WIPO) Copyright Treaty. The use of music in public performance, recordings, new creative works, or in scholarship generally requires permission and/or payment of licensing fees. Digital technologies and new practices based on those technologies have increased attention on copyright laws over the past decade or two as the balance between commercial interests and the perceived rights of the public has been challenged, especially regarding recorded music. Increasingly, works of creativity are seen by commercial entities as intellectual property equivalent to physical property. As a result, the practice of borrowing from another’s music in creating new music has morphed from being generally viewed as acceptable fair use to potential infringement, prosecutable under the law. Licensing has therefore become one strategy for clarifying what permissions the copyright holder will grant, while open access aims to guide copyright holders who wish to give broader access to their works. Although there are many excellent resources on copyright published over the past several decades, because of the rapid pace of change in recent years, most sources cited throughout have been published since 2000, except for several historical studies.

General Overviews

Among the many general books on copyright law and its history, these resources collectively offer clear descriptions at a range of levels of detail. The United Kingdom Intellectual Property Office and the United States Copyright Office offer the texts of the governing laws that cover most of the English speaking world. US Copyright Office Circulars are among the most clearly written overviews for lay readers. LaFrance 2011 and Leaffer 2014 are both intended as a general overview of copyright law and legal cases for law students and lawyers; LaFrance is the less detailed of the two. Nimmer and Nimmer 1963 is the continually updated, detailed legal treatise relied upon by many judges and copyright lawyers in the United States. The British Academy and The Publishers Association Joint Guidelines 2008 is a readable overview and description of the components of British copyright law. Samuels 2000 describes the history of US copyright.

• Joint Guidelines on Copyright and Academic Research: Guidelines for Researchers and Publishers in the Humanities and Social Sciences. London: British Academy and The Publishers Association, 2008.

  Begins with history and description of the components of UK copyright law and what it covers. Concludes with a useful list of “Further Sources of Information.”

• LaFrance, Mary. Copyright Law in a Nutshell. 2d ed. St. Paul, MN: West, 2011.

  A concise introduction to copyright law. Often used as a study guide to the topic in law schools. Topical chapters refer to and explain specific sections of the copyright and related laws and legislation as well as legal decisions.

• Leaffer, Marshall A. Understanding Copyright Law. 6th ed. New Providence, NJ: LexisNexis, 2014.

  The latest update to a standard text used in law school training. Focus is on US copyright law, but includes an extensive section on international treaties and the relationship of US to international laws. Progresses from historical development of copyright to detailed examination of copyright law and the economic rationale underlying it. Concludes with a broad overview of related issues of US trademark and patent laws.

• Nimmer, Melville B., and David Nimmer. Nimmer on Copyright. Newark, NJ: LexisNexis Matthew Bender, 1963.

  Multivolume standard copyright legal treatise often cited in US federal and state courts, updated three times per year. Since 2014 available only online via subscription to Lexis. Comprehensive compendium of both primary and secondary source materials, including texts of the US Copyright Act, the Berne Convention, and other international treaties, and details of legal cases and decision related to copyright. Also provides forms, template agreements, and transactional documents.

• Samuels, Edward. The Illustrated Story of Copyright. New York: Thomas Dunne, 2000.

  An engaging historical overview for lay readers of how US copyright law has adapted to the effect of developing technologies on various publishing and distribution industries, including book publishing; music, sound recording, and radio; movie and television; computer industries; and the development and rapid growth of the Internet.

• United Kingdom. Intellectual Property Office. Copyright, 2011.

  Includes links to the full text of the UK copyright law, amendments, and related official publications, as well as guides to various aspects of British copyright and related intellectual property rights. Updated 2014.

• United States Copyright Office.

  Includes both the full text of the US copyright law and related legislation, as well as other reports and studies, and links to register a work for copyright. Particularly useful are Copyright Office Circulars and brochures available for download. Circular 1: Copyright Basics offers a clear description of current US copyright protection in lay terms, covering basic definitions, what can and cannot be protected by copyright, length of copyright protection, copyright registration and deposit, and how to search copyright office records.