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Copyright Law and the Ethics of Sampling

Contents

Part Two - Copyright

4. A Brief History of Copyright

5. Copyright

6. Organisations Protecting Copyright

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Part One

Part Three

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Part Two - Copyright

4. A Brief History of Copyright.

The idea of copyright can be traced back as far as Greek times when a singer would be paid for a performance. This was because although the performer had not worked to make a product, but had worked and given a tangible commodity to the audience. It could be argued that this idea of 'work' is also the main reason why a persons compositions should be protected, because although a composer may not perform their work, they have still spent time and effort 'making' a composition for people to enjoy.

The first copyright law in Britain was the Statute of Queen Anne in 1709, and this law mainly involved controlling and restricting printing presses. The control however was not in the hands of the authors but was instead in the hands of the establishment- the government and monarch of the day. The government wanted these controls because they were afraid that their enemies might circulate literature and information that could cause the masses to overthrow them. Over time however, the law has changed and the control and protection now lies in the hands of the composers and writers of original works. The French copyright law enacted after the revolution in the seventeenth century because of the explosion in intellectual thoughts and publications that this brought about was the first law to resemble the copyright laws known today.

Due to the advent of new technology around the turn of the century musicians and publishers called for a revision of the law, the result being the Copyright Act 1911, from which today's laws are derived. Because of the speed technology developed of two further laws updating the previous ones were passed. The Copyright Act 1956 and the Copyright, Designs and Patents Act 1988. Other international copyright laws have been passed so as to afford protection to copyright owners throughout the world. The first was the Berne Convention 1886 which was last revised in Paris in 1971; the second being the UN Universal Copyright Convention. At the end of March 1995 the European Commission's Rental Directive and Cable & Satellite Directive were incorporated into British Copyright law so as to harmonise laws throughout the community. The European Copyright Treaty, has largely been adopted by Britain but as yet it is not fully tested by court actions and its boundaries, limitations or consequences have not been seen, but it could override decisions made in British courts, via the European Court.

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5. Copyright.

Copyright can be owned like physical property and is the right of the creator to prevent another person using or copying his/ her music. The Copyright, Designs and Patents Act 1988 is the law that governs copyright in the UK. Copyright protects the form in which the artist/ author has set out his/ her work, not the underlying idea. This means that plots, artistic ideas and themes cannot be protected. Names can be protected as trademarks or patents and the separate law on confidential information is used to protect an idea. Items not available for copyright protection include:

  • Ideas,
  • Facts,
  • Titles,
  • Names,
  • Short Phrases,
  • Blank Forms.

Section 1 of the act deals with several different categories of work which can be protected:

  • Original literary, dramatic, musical or artistic works,
  • Sound recordings, films, broadcasts or cable programmes,
  • Typographical arrangements of published editions.

All that is required to ensure protection by copyright is to record the original work in an appropriate medium, i.e. copyright automatically comes into existence once a work is created without the need for any registration, etc.. However in the USA work must be registered, as is the case in most countries not belonging to the Berne Convention. In any countries which belong to the Universal Copyright Convention any published work must carry the © symbol, the name of the author and the year in which the work was first published. Works published in Bolivia or Honduras- Signatories to the Buenos Aires Convention, require that the phrase 'All Rights Reserved' be included on any copies reproduced. This means that in this country in the event of a dispute over authorship or originality there is no way of proving which work came first, so it is advisable to :

  • Deposit a copy with a bank manager or solicitor and obtain a dated receipt, or;
  • Send a copy of the work to yourself by registered post, leaving the official registered post envelope unopened when it arrives, the title of the work should be written on the outside of the envelope. When the envelope comes back attach the receipt and keep in a safe place, or;
  • Register the work at Stationers Hall. The fee for this service is currently 23.50 inclusive of VAT.

These precautions will not ensure ownership of the copyright, but will only show that the work concerned existed on a particular date. It is possible that two unconnected people could have created similar works, and if one could prove previous authorship the latter would be classed as an infringement.

Copyright in a work allows the owner to control several uses of the work which are:

  • Copying the work,
  • Issuing copies of the work to the public,
  • Performing, showing or playing the work to the public,
  • Broadcasting the work or including the work in a cable programme service, and
  • Making any adaptation of the work, or doing, in relation to an adaptation of the work any of the things listed above.

For a work to be eligible for protection it must be original; this means that any work that is a copy of itself cannot be protected. For a work to be classed as original it need not show innovation or cultural merit, but must have been a product of skill and labour. Making a slavish copy does not count.

The 1988 Copyright, Designs and Patents Act only really applies to the UK (and colonies) and is concerned with protecting the works of British citizens whose work was first published here. However due to the international conventions (of which Britain is a member) copyright is also afforded to some overseas musicians and composers and their works, even if it was first published outside the UK. There are many copyright agencies that operate either throughout the world or in regional areas whose purpose is to look after the interests of their members, some of the larger and more influential ones are listed and outlined in Appendix II.

A work is usually owned by the author/ creator except for a work produced by an employee in the course of their employment, when the copyright will belong to the employer, unless any prior agreements have been arranged. There can be joint ownership if two or more people create a work, but where the two peoples roles/ work is distinct, i.e. a lyrics writer and a music writer, then two separate copyrights will exist.

Copyright can be assigned or sold to another person or parts can be licensed. The rights can also be bequeathed upon the death of the owner. Authors can also assign or license future copyrights in works not yet created. Computers can now generate works without any discernible human authorship and the 1988 Copyright Designs and Patents Act makes provision to ascribe the authorship to a nominated party so as to afford copyright protection.

As of 1st January 1996 the 1988 Copyright Designs and Patents Act was be updated to bring it into line with EU Council directive 93/98, which will harmonise copyright terms throughout the EU. A copyright will usually expire 70 years after the death of the creator- if there were joint creators it would be 70 years after the death of the last one to die. If the author is not known the copyright will expire 70 years after the work was first made available to the public, either by being performed, broadcast, exhibited, etc. The rules are the same for sound recordings and cable or terrestrial broadcasts, etc., i.e. the copyright expires 70 years after the year of manufacture unless they are re-released in that period when the copyright exists from the release date. Previously the period of protection was 50 years, and the changes only apply to works created after 1st January 1996. Once the period of copyright has elapsed the work becomes public domain (PD) which means that anybody can use the work, (which includes sampling). Other works in the public domain are those where the copyright has become lost or if the owner of the copyright specifically donates the work to the public domain.

Copyright essentially prohibits all unauthorised exploitation of the work. The copyright owner can either choose to exploit the work themselves or they may sell, licence, assign or bequeath the copyright either as a whole or in part in a similar fashion as one would with property, so that somebody else may exploit the work.

If a person commits an infringement on a restricted act i.e. by copying a piece, without obtaining the required permission or licence they may be liable for damages, injunctions on their actions or business operations and even the seizure of their product. A person infringing copyright can be held liable even if they did not know what they were doing.

Samplers must be aware of the two aspects of Moral rights which enable the owner of the copyright to prohibit any use of the material if they feel that such use is derogatory or will bring the author into disrepute (Integrity Right). Permission to use specific samples has been refused in some recent attempts by 'Gangsta Rap'/ 'Reality Rap' artists such as the 'Geto Boys', to procure licences, the reason stated being that the original composer did not want to be associated in any way with music of such a crude, violent and sexist nature. In another case Coolio had to 'tame' the lyrics in his single 'Gangsters Paradise' in order to obtain permission for release. The song sampled Stevie wonder and although he liked the music after he heard the lyrics he stipulated that for his consent to use the sample the lyrics should be cleaned up. The arguments about why Gangsta Rap evolved and whether its contents should be censored form the basis of a separate discussion, but the way the music is created i.e. using samples returns naturally to the question of samplers vs. copyright owners, and this issue is slowly infecting not just Hip Hop (of which 'Gangsta Rap' is a facet), but all forms of modern music, especially the once burgeoning 'Dance' music scene, where using small hardly recognisable snippets of music to form original pieces is fast becoming the norm.

'Gangsters Paradise' by Coolio was the largest selling single world wide in 1995, and reached number 1 in the charts both here and in the US for several weeks, aswell as in many other markets. (BPI). Back

The moral right under the Berne Convention also confers the right to be acknowledged as the author of a piece onto the composer (Paternity), which (if the composer wants) can result in the inclusion of a message stating this much on any product containing their work. Ofcourse one must determine whether the use of the piece is covered by copyright and in the case of samples this may be difficult due to the different perspectives of the copyright owner and the alleged infringer.

Should the users of samplers be given their own 'Moral Right', in that if a sound exists anybody should be allowed to make use of it for their own creative purposes? I see this as yet unheard of new right as a form of musical 'freedom of speech'.

Fair dealing (or Fair Use in the USA) is probably the most widely used and important defence in relation to using copyrights. It allows for the exploitation of a copyright in certain circumstances without the need for licences or the need to pay royalties. The limits to fair dealing state that only works copied for the following purposes are permitted, but with certain provisos:

  • Research or Private Study, provided that only one copy is reproduced but no acknowledgements are required.
  • Criticism or Review, multiple copies are permitted but sufficient acknowledgement is necessary. Or,
  • Reporting Current Events, multiple copies are permitted, and sufficient acknowledgement is needed, except in the case of reporting done via a sound recording, film, broadcast or cable programme.

In all cases the copying must be 'Fair', and to assess fairness the amount or proportion of the work copied will be important as will be whether the usage competes with the copyright owner.

Copyrighted works may be included in another incidentally by way of background. Strangely there is no infringement committed in architecture if a building is copied and reconstructed. The law in America is a little more permissive as it allows the above exemptions but the primary factors to be considered are:

  • The purpose and character of use, including whether such use is of a commercial nature or is for non-profit educational purposes. Although this is not the deciding factor preference is given to pieces created for non-profit educational purposes. This also includes whether the work is used for Criticism, Comment, News Reporting, Teaching, Scholarship, or Research. This list is not restrictive although proving 'Fair Use will be easier if the new work is created for one of these purposes. This section also looks at the degree of transformation and if the new work merely supplants the original or if it adds something new which could include a different character or further purpose i.e. altering the first with a new meaning, message, or expression.
  • The nature of the copyrighted work in that some works are simply more deserving of protection than others.
  • The relative amount and substantiality of the portion used in relation to the copyrighted work as a whole. This is not a fixed ratio but looks at whether the portion used (in both quality and value), are reasonable in relation to the purpose of copying.
  • if the effect of the use upon the potential market for, or value of, the copyrighted work will be harmful. This also looks at the possible harm done to derivative works as well.

The fact that a work is unpublished does not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

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6. Organisations protecting Copyright.

Diagram Showing the flow of funds within the music industry.

 

Diagram Showing the flow of funds within the music industry.

 

 See Fig. 3. Diagram after one found in the March 1989 pamphlet 'Industry Organisations' by Music Week.

The issues of creative ownership and copyright have been discussed earlier. In comparison to the 2.50 royalties generated by shellac disks in 1910, in the modern music industry huge sums of money are generated by the dissemination of individual composers and artists original works to the public by commercial enterprises such as radio and television stations, public performance venues, retail outlets, film companies and advertising agencies. It has therefore always been necessary to have a system to ensure that individual copyright owners receive a fair share of the commercial profit generated by their work. Therefore M.C.P.S., P.R.S. and P.P.L. etc. Were created to fulfil this function. (See Fig. 3.).

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MCPS

As the possibility of mechanical reproduction of music became available the issue of copyright no longer applied only to the 'live' performances but also to mechanical reproduction by means of music boxes, piano rolls, cylinder and disc recordings. This meant that the question of royalties applied not only to the actual performance but also to the recording itself. In anticipation of the Copyright Act 1911 the Mechanical Copyright Licensing Company Ltd. (MECOLICO) was established in 1910. Its purpose was to collect and distribute 'Mechanical' royalties due from the new gramophone companies, i.e. it collects royalties from the record companies on behalf of the artists and composers for the ('mechanical') duplication and distribution of their performances and compositions which are covered by copyright.

Shortly after MECOLICO was instituted the Copyright Protection Society Ltd. was founded and in 1924 the two organisations merged and formed the Mechanical Copyright Protection Society Limited (M.C.P.S.). The society grew and expanded rapidly with advances in technology, firstly with sound, film, radio and television recordings and more recently magnetic tapes, video cassettes and newer digital media such as Compact Disc, Mini Disc and Digital Compact Cassette and even the internet, Video On Demand and Digital Versatile Disc.

In 1976 the Music Publishers Association (M.P.A.) bought M.C.P.S. and now grants licences in all areas regarding recording rights in the UK and also operates world-wide through agreement with similar organisations in other countries. In 1988 M.C.P.S. merged with the Mechanical Rights Society, whose work had previously been administered by M.C.P.S. anyway. Anybody who has a copyright (in musical composition, lyrics or publishing) to their name does not have to pay or subscribe to become a member, but in order for the MCPS to collect royalties on their behalf the members must first sign an exclusive legally binding agreement that gives MCPS the right to issue licences relating to two restricted acts, namely: copying the work and issuing copies of the work (distribution). In addition, copyright owners may have the right to control the importation of any copies of their musical works.

M.C.P.S. collects royalties for its composer and publisher members whenever a recording of their music is produced for sale here or abroad, this agreement being made with the manufacturers and producers of sound recordings' industry association, B.P.I. (British Phonographic Industry), although members may opt to collect their royalties directly. M.C.P.S. also has an agreement with the B.P.I. over imported records not yet on domestic release.

Blanket licences are issued to broadcasters allowing them to use any work including specially composed 'Library' or background music. Producers of videos, (such as: films, music videos and television programmes) are becoming increasingly important sources of income, the contract again being negotiated with the B.P.I..

To check that nobody is trying to reproduce sound recordings without permission and paying the correct royalties, M.C.P.S.' audit services department monitors record manufacture and sales, and has the authority to look at record company and pressing plant accounts.

Recently M.C.P.S. has launched National Discography Ltd, in association with the National Sound Archive, (a division of the British Library), to produce a database containing the copyright details of all the recordings commercially released in the UK, which will help in generally speeding up the process of obtaining licences.

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PRS

Like M.C.P.S. the Performing Right Society is a non-profit making organisation. It was set up in 1914 by composers, authors and publishers to collect royalties for public performance and broadcasting of their works and also to restrict unauthorised use of their works. As many works are performed all over the world thousands of times per day, it is unrealistic that copyright owners could collect all the royalties owed to them and to give permission to all the performers who wished to perform their works, so the P.R.S. was formed to administer these rights on behalf of the copyright owners (composers and music publishers).

This is done by issuing licences for public performance of the P.R.S. member's work in the UK and Eire and in other countries through affiliation with similar societies abroad. In Commonwealth countries P.R.S.' subsidiary Music Copyright (Overseas) Services Ltd administers the licences. This means that there are about half a million members. The licences cover all musical works whether they be live or mechanically reproduced (except for operas, musical plays, pantomimes or ballets).

After administration costs and donations to the members' fund (for members who fall on hard times and really need financial help), have been deducted, all the royalties collected are distributed amongst the members (or affiliated members). The fees are generally spread out twice a year and are split up into performing and broadcasting fees.

The society is run by a council of 24 members who are elected by the other members. To become a member an admission fee must be paid, but after that there are no further fees or charges. There are membership criteria but composers and writers of lyrics will most likely be allowed membership.

Record companies spend extraordinary amounts of money on bands each year (EMI spends about 80 million) so they want to recoup some of this and it is done through royalties recouped from the artists which are collected by MCPS and PRS etc. and their own royalties collected by PPL (Phonographic Performance Limited). This organisation is only responsible for licences in regard to the copyright in the sound recording, which is to say the playing of the recording rather than its manufacture. This copyright is usually owned by the record companies who release the recordings. PPL is a non-profit making organisation established in 1934 by the recording industry to administer public performance and broadcasting rights centrally to all kinds of venues, DJ's, Jukebox operators and telephone disclines, i.e. anybody who plays sound recordings. Radio and television broadcasters pay for a blanket licence.

Those who make the most money from sound recordings pay a higher tariff than those who don't, so radio stations and discotheques pay more than shops or theatres. 67% of the royalties collected are paid to the record company members, the remainder going to the recording artists via the Musicians Union. The royalties are distributed annually, each members income is calculated from returns from broadcasters and a sample of public performance venues.

There are many more organisations looking after the interests of certain concerned parties i.e. Video Performance Ltd, but listed above are the main ones operating in the UK.

Obviously it would be impossible to know how to distribute these royalties properly without monitoring production or performance. MCPS decides how to distribute royalties in proportion to the number of units manufactured. The artist with the most will receive the largest amount of royalties and the person with the fewest will get the least amount of money.

PRS checks the output from radio/ television and theatres, etc.. It cannot monitor the entire output but the make the broadcasters tape it (so that it can be checked if necessary) and fill in forms which will hopefully account for every second. PRS can then call on anybody at anytime to see what they are or have been playing. However the overall amount of checks made and method used by MCPS and PRS is confidential.

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As the American market is so large and influential it is wise to explore the background, legal situation, and organisations there. It is also likely that anyone who is very successful will have hits in America and so must be aware of the regulations and penalties. Legislation in America has largely shadowed that of the UK, the first law being the Copyright Act of 1909, which established mechanical royalties on cylinder recordings, piano rolls and sheet music sales. Soon however shortcomings were found in the bill due to social and technological changes and in 1924 the statute was revised.

In 1917 the Music Publishers' Protective Association was founded with the intention of interpreting copyright law. In 1966 the name of the Music Publishers' Protective Association was changed to the National Music Publishers Association. From the 1950's the N.M.P.A. has worked with other industry groups to update the law and helped to draft the copyright revision bill introduced to Congress in 1964. This bill became law sometime later in 1976. This law extended the protection offered writers and composers by copyright from 56 years set up in 1909, to 50 years after the death of the author or 75 years from publication in the case of anonymous or pseudonymous works or works for hire, for works created on or after 1st January 1978. In 1992 the law was again updated to include the Home Recording Act and Automatic Copyright Renewal.

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The American Society of Composers, Authors and Publishers

The American Society of Composers, Authors and Publishers was founded in New York in 1914 to fulfil the same roll as P.R.S. (with which it is fully associated), in the USA. A.S.C.A.P. is owned by writers and publishers and has about 50,000+ members who are composers and authors of music but may also be licence users too. Licences are issued to some 9000 local commercial radio stations, 800 commercial television stations, the three national television networks (N.B.C., C.B.S., and A.B.C.), and cable television stations like M.T.V. and H.B.O.. Other smaller licensees are discos, bars, airlines, hotels, or any other of the thousands of users of music. As can be seen the amounts of money raised from these licences will be huge and is divided between the members on the basis of a scientific random survey designed, reviewed and conducted by independent outside experts. The fees collected are distributed six times per year, quarterly for moneys earned in the US, and twice annually for any works earning money abroad.

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B.M.I.

B.M.I. issues licences to music users in a similar fashion to A.S.C.A.P., but includes college radio stations in its sample which is a vital arena for new acts and musical trends. The royalties are however distributed according to broadcast performances logged, and any non-broadcast revenue is simply used to augment dividends to members whose work was performed on radio or television. The logging process for broadcast performances is very detailed and includes an almost complete computerised record of all local and national television stations output for 125 regions from 'TV Guide' (a regional listings magazine).

Payments to British writers and composers collected by B.M.I. can now be made directly to P.R.S., whereas before, although the writers share was paid directly to P.R.S. the publishers share had to be paid to an American sub-publisher.

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The Harry Fox Agency

The Harry Fox Agency, Inc. was established in 1927 as a wholly owned subsidiary by the National Music Publishers' Association, and acts to administer 'mechanical' licences for the reproduction of copyrighted musical compositions onto commercial records, tapes, CDs, computer chips and all other audio-visual media to be distributed to the public for private use. They also licence music for use in television and video works, this is called 'Synchronisation' and includes music included in TV and Radio commercials. The company has similar functions to M.C.P.S. and has the power to audit individual record companies accounts. The H.F.A. has also audited users in Mexico, Hong Kong, and Southeast Asia on behalf of its members, the publishers.

The royalties are distributed to its members within 10 days of receiving the payment from music users (who inturn are required to pay within 45 days of the close of each quarter), and is one of the most efficient music rights agencies or society in the world. Obtaining a licence is completely computerised and operates 24 hours each day.

As the USA is so large there are also other copyright agencies that compete with the ones above such as the Copyright Clearance Centre, but these are the largest, most important and influential.

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Part Three

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Copyright Law and the Ethics of Sampling



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