Is creative use of musical works without a licence acceptable under copyright law

Abstract

particularly evident in light of the recent Infopaq (ECJ) and Meltwater (UK) cases.Evidence from other jurisdictions shows similar conflicts can arise not just with regard to works of music but also with regard to other creative works including works of literature and drama.A more flexible approach to exceptions would would encourage musical creativity.The possibility of a more flexible system of exceptions is explored (at 7). (a) Creative use of Musical Works -An Historical PerspectiveAs discussed in detail further below, copyright infringement envisages the unauthorised or unlicensed use of a musical work.However, making creative use of existing musical materials is common in musical practice.Although the term "musical borrowing" 3 is sometimes used to denote this, the term is problematic because it is rarely the case that materials are "returned" to the place where they were originally found.In fact, the practice appears to denote the unlicensed taking and use of musical materials in contexts where such use is justified as part of creative practice.As such the idea of making "creative use" of musical works, in whole or in part, is a more accurate way of conveying this idea of "justifiable use" than the notion of "musical borrowing". (b) The European Classical TraditionRegarding authorship of music, it is widely acknowledged that making creative use of musical materials is an ancient practice that pervades many, if not all, forms of music 4 .With regard to European classical, operatic and "art" music, it is notable that up until the 19 th century, many composers felt able to "copy" and rearrange material from their own, and each other's, previous works 5 .For instance, it was not illegal, nor was it seen as "unoriginal" or "wrong" for composers to reuse melodies and to compose variations on themes which had originated with other composers.Examples of composers who partook in this kind of "creative use" include Mozart, Beethoven, Bach, Handel and Brahms.6 Therefore, in 3 For uses of the term see Cohen, "Copyright, Commodification and Culture: Locating the Public Domain", in: Guibault & Hugenholtz (eds.), "The Future of the Public Domain" 121, 143 (Kluwer, Alphen aan den Rijn 2006) and Arewa, "From J.C. Bach to Hip-Hop: Musical Borrowing, Copyright and Cultural Context", 84 North Carolina Law Review 547 (2006).4 Charles Seeger acknowledged that folk songs were created "entirely" through a process of "plagiarism".Seeger, "The Incomplete Folksinger" 450 (University of Nebraska, Lincoln 1992).See also Jones & Cameron, "Full Fat, Semi-Skimmed or No Milk Today: Creative Commons Licences and English Folk Music", 19 International Review of Law, Computers and Technology 259, 260 (2005), noting that much of what we term "pop" music today has its roots and structures in traditional music, primarily folk and blues music.5 Toynbee, "Copyright, The Work and Phonographic Orality in Music", 15 Social & Legal Studies 77, 80 (2006).Goehr, "The Imaginary Museum of Musical Works: An Essay in the Philosophy of Music" 181-182 (OUP, Oxford 1993).6 Keyes, "Musical Musings: The Case for Rethinking Music Copyright Protection", 10 Michigan Telecommunications and Technology Law Review 407, 436 (2004), referring to Shafter, "Musical Copyright" 187 (Callaghan and Company, Chicago 1932).7 Rosen, "Music and

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 25 citations exist upstream.