Tuesday 30 July 2019

Copying music without knowing

The Guardian this morning reports another case in which a piece of music was held to infringe copyright in an earlier piece. It happens more and more often, it seems - as the twin evils, long identified in the trade marks world, of depletion and foreclosure insinuate themselves into copyright, albeit with changes to their form to take account of the very different subject-matter of trade mark protection.

The case in the papers today was decided in the United States, and by a jury, which means that the same will not happen here, not by the same route anyway. Katy Perry's song Dark Horse was found to have a similar beat to a piece called Joyful Noise by Flame, a Christian rapper (a new genre to me). It seems that several others were accused of infringing, too.

For copyright infringement to happen, in the USA as well as in this country (and every other country that has a copyright law, which I think is every country although in some of them the situation is a bit unclear), there has to be a nexus between the copyright work and what an infringer has produced (you can't say the infringer created it, because the whole point is that he or she hasn't, nor can you call it a work because it doesn't represent work, just appropriation). If an alleged infringer has no knowledge of the copyright work in question, there is no infringement: there is a second, similar or identical, copyright work, created independently by the defendant.

Many copyright owners don't like this situation, of course. They would rather their copyright was a true monopoly right. But copyright law is not patent law, and quite right too. Copyright doesn't protect the piece of music (or the book, or the painting) per se, but the effort that the creator put into it. So the owner of copyright in a piece of music has to show that the defendant had heard that piece. The case law tells us that it isn't necessary to show that the defendant has to recall the piece - if that were the case, a little selective amnesia would be enough to defeat any infringement claim - but merely that they have been exposed to it.

To avoid being exposed to others' music, composers will not generally listen to the recordings that they might receive from aspiring composers hoping for an endorsement (or perhaps hoping to contrive a situation in which an infringement action might lie). But in the modern world it becomes much more difficult to avoid exposure to music. When it is playing, unnecessarily, in lifts, shops, restaurants, gyms, and workplaces, it's impossible to get away from. I might have heard Dark Horse and Joyful Noise many times, quite involuntarily, but I certainly don't recall either of them. Were I a songwriter, I might well have incorporated some part of them (one or other of them) in a work of my own. And to some extent that's how music gets written, and always has been.

What strikes me as novel in this case is that sheer numbers of YouTube views seem to have raised a presumption that Katy Perry and her co-authors must have heard it. That's frightening. I might be exposed to a piece of music in the gym, however hard I try to shut it out and concentrate on my workout, and therefore become a prospective infringer.

How can this be addressed? It's right that the copyright owner should get something when another composer appropriates their hard (or even not-so-hard) work. What is needed is a narrower concept of what amounts to actionable appropriation, as well as consideration of what damages should be awarded and whether there ought to be some sort of licensing scheme to cover some types of infringing act. In the Kay Perry/Flame case, the situation is complicated by the fact that a jury made the decision that there had been an infringement, and having a jury decide matters like that doesn't appeal to me as a sound way to deal with them. Perhaps that accounts for why just taking the beat was held to be an infringement. In the name of research I have listened to the two songs on YouTube, and indeed the beats are very similar, although they are also pretty mundane and I wonder where Flame's came from in the first place. A rigorous analysis of the originality of the claimed work would be the starting point for a more rational approach to questions of infringement.

Another important difference between UK and US copyright law is that while the UK law considers the originality of a work as a whole, US copyright law is more inclined to take the work apart and look for originality in its components. Here, it seems to me quite likely that an English judge, asked to consider the two, might remark that the beats sounded similar but that the two songs as a whole were so completely different that the similarities could not be considered substantial. Perhaps it's not a problem that would ever come to court in this country, but the fact is that US copyright casts its shadow over the whole world and we need to take care always to distinguish what goes on there from our own approach.

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