Journal Name: Information, Communication & Society:
Volume 12, Issue 2, March 2009
Online ISSN: 1468-4462, Print ISSN: 1369-118X
LEGAL FORM AND CULTURAL SYMBOL
Music, copyright, and information and communications studies (p165-177)
Martin Kretschmer (Department of Law, Business School, Bournemouth University, Poole, Dorset, UK); Andy C. Pratt (Department of Geography and Environment, London School of Economics, London, UK)
Writers in information and communication studies often assume the stability of objects under investigation: network nodes, databases, information. Legal writers in the intellectual property tradition often assume that cultural artefacts exist as objects prior to being governed by copyright law. Both assumptions are fallacious. This introduction conceptualizes the relationship of legal form and cultural symbol. Starting from an understanding of copyright law as part of systems of cultural production, it is argued that copyright law constructs the artefacts it seeks to regulate as objects that can be bought and sold. In doing so, the legal and aesthetic logic of cultural symbols may clash, as in the case of digital music (the central focus of this special issue).
Keywords: Copyright; production of culture; aesthetics; logic of law; legal object; authorship
AUTHORSHIP OF POPULAR MUSIC IN UK COPYRIGHT LAW (p179-204)
Lionel Bently (C.I.PI.L., Faculty of Law, University of Cambridge, Cambridge, UK)
While the commercial distribution channels of popular music (such as record retailers, radio stations, video channels, web stores), attribute authorship to performers, copyright law requires that a 'musical work' be invented ex post facto out of the 'sound sculpture' produced by the artist (and others, such as the producer) in the recording studio. This article explains how copyright law came to privilege some types of authorship, discusses the potential effects of recognizing a multiplicity of authorial contributions in the production of music, and argues for a closer correspondence of legal and aesthetic understandings of culture.
Keywords: Copyright; author; performer; musical work; sound recording; popular music theory
JOHANN GOTTLIEB FICHTE, AND THE TRAP OF INHALT (CONTENT) AND FORM
An information perspective on music copyright (p205-228)
Friedemann Kawohl; Martin Kretschmer (Department of Law, Business School, Bournemouth University, Poole, Dorset, UK)
In the digital environment, copyright law has become trapped in an assessment of what has been taken, rather than what has been done with copied materials and elements. This expands the scope of copyright into areas where it should not find infringement (such as sampling, mash-ups and other transformative uses) while encouraging activities that are problematic (such as hiding sources). This article argues that the trap was laid by the German idealist philosopher Johann Gottlieb Fichte whose influential 1793 article 'Proof of the Unlawfulness of Reprinting' for the first time distinguishes Inhalt (i.e. content free to all) and Form (i.e. the author's inalienable expression) as copyright categories. It is shown that Fichte's structure conflates norms of communication and norms of transaction. An alternative path for copyright law in an information society is sketched from a separation of these norms: copying should be assessed from (i) the attribution of sources, and (ii) the degree to which original and derivative materials compete with each other. Throughout the article, transformative practices in music set the scene.
Keywords: Copyright; idea-expression dichotomy; Johann Gottlieb Fichte; musical work; performance; adaptation; sampling
WHOSE WORKS AND WHAT KINDS OF REWARDS
The persisting question of ownership and control in the South African and global music industry (p229-250)
Tuulikki Pietila (Helsinki Collegium for Advanced Studies, Finland)
This article examines copyright issues in South Africa and shows certain historical continuities in musicians' problems with ownership and control. It argues that in organizing relationships and ownership two distinct systems coexist in the South African music industry, which are here called the patronage model, on the one hand, and the contract model of the global music industry, on the other. The historical continuities arise from the fact that the music producers operating at the junction of the two systems have been and remain in a position to concentrate ownership and control to themselves, at the expense of the music creators.
There is a comparable concentration of ownership in the global music industry, in which the biggest industry actors continue to benefit vis--vis the small ones. Much of the ongoing debate on the 'crisis' of the music industry reflects the interests of the major actors and revolves around the question of how to secure rewards for music producers from the digital distribution and consumption of music. This article insists that there are crucial issues of ownership that arise prior to distribution and consumption; that is, in the relations and processes of production. These lead to a question of how to improve ownership and control of copyrights and other related rights of the composers and musicians vis--vis music producers and publishers. A second question concerns the creation of a reward structure that prevents concentration of ownership and control to any position or functionary in the music industry.
Keywords: Music industry; South Africa; ownership; copyright; patronage relations
COPYRIGHT, CONTRACTS AND MUSIC PRODUCTION (p251-266)
Peter Tschmuck (Institute of Culture Management and Culture Studies (IKM), Austria)
This paper explores the impact of the digital revolution on the development of the music industry. It analyses the conditions of the commercialization of music in an industry structure with, and without, a copyright regime. The paper's main concern is with the relationship between artists and publishers. The particular influence of the continental European, especially Austrian, copyright regime on the contractual design of publishing contracts and the music industry structure, and their differences from US norms, is discussed.
Keywords: Copyright; artist; publisher; label; contract; industry structure; digitization
COPYRIGHT AND ENTREPRENEURSHIP: CATALYST OR BARRIER? (p267-286)
George Michael Klimis (Department of Communication, Media and Culture, Panteion University, Athens, Greece); Roger Wallis (Department of Media Technology & Graphic Arts, School of Computer Science and Communication, Royal Institute of Technology (KTH), Stockholm, Sweden)
The paper critically revisits the theory of entrepreneurship giving particular weight to the economic, business and sociological meaning of the term. It supports the position that the creator should be thought of as an entrepreneur, i.e. somebody who not only creates but who is also, or even primarily, aiming to exploit his/her creation to appropriate rent. The paper tries to build a theoretical framework to facilitate research in the cultural industries using the concepts of disequilibrium, entrepreneurial opportunity and rent, and intellectual property rights. We assess the disruptive role of new technologies in the music industry and examine the role of copyright as an institution that can both hinder or facilitate entrepreneurship and innovation in the digital domain.
Keywords: Music industry; entrepreneurship; intellectual property rights; disruptive technologies; peer to peer (P2P) file-sharing; resource based view
(This journal is available online: http://www.tandf.co.uk/journals/titles/1369118x.html)
Posted with permission from the publisher.