jackbwalker
- Apr 26
- 39 min read

UK music copyright law: Antediluvian decree or apt edict?

More specifically, does existing UK music copyright law sufficiently protect artist’s rights in the age of digital consumption? Before I explore this topic, please find some abbreviations, statutes and cases below which will become of apparent importance as we move through the topic.

Abbreviations

BPI – British Phonography Industry

CDPA – Copyright, Designs and Patents Act 1988

CEEMID - Central and Eastern European Music Industry Databases

CMO – Collective Management Organisation

CRRR – Copyright and Related Rights Regulations 2003

GEMA - The Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (The Society for Musical Performance and Mechanical Reproduction Rights)

ISP – Internet Service Provider

MCPS - Mechanical-Copyright Protection Society

MU – The Musicians Union

PPL – Phonographic Performance Limited

PRS – Performing Right Society

SACEM - Société des auteurs, compositeurs et éditeurs de musique (Society of Authors, Composers and Music Publishers)

SPV – Special Purpose Vehicle

VAT – Value Added Tax

Statutes & Cases

Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16.

Bach v Longman (1777) 2 Cowp. 623

Baigent v Random House Group Ltd [2007] EWCA Civ 247; [2008] E.M.L.R. 7

Berlin Act 1908

Berne Convention for the Protection of Literary and Artistic Works 1886

Capitol Records v British Telecommunications Plc [2021] EWHC 409 (Ch)

Cescinsky v George Routledge & Sons Ltd [1916] 2 K.B. 325

European Directive 2001/29 (Formally, The Information Society Directive, otherwise known as The Copyright Directive)

Gramophone Company, Limited v. Stephen Cawardine and Company [1934] 1 Ch 450

GS Media BV v Sanoma Media Netherlands BV (C-160/15)

Kathryn Townsend Griffin, Helen MacDonald and the Townsend Estate v Edward Sheeran, Atlantic Records, Sony Music, Warner Music (No.1:17-cv-05221) 24 March 2020.

Land Nordrhein-Westfalen v Renckhoff (C-161/17)

Licensing of the Press Act 1662

Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2013] EWHC 3479 (Ch), [2013] 11 WLUK 310

Rome Act 1928

Rome Convention 1961

R. (on the application of British Academy of Songwriters, Composers and Authors) v Secretary of State for Business, Innovation and Skills [2015] EWHC 1723 (Admin), [2015] Bus. L.R. 1435, [2015] 6 WLUK 615

Skidmore v Led Zeppelin 952 F.3d 1051 (9th Cir. 2020)

Statute Law Revision Act 1863

Statute of Anne 1709

Svensson v Retriever Sverige AB (C-466/12)

Twentieth Century Fox Film Corp v British Telecommunications Plc [2011] EWHC 1981 (Ch), [2012] 1 All E.R. 806, [2011] 7 WLUK 872

Universal Copyright Convention 1952

Warner Music UK v TuneIn Inc [2019] EWHC 2923 (Ch)

Young Turks Recordings Ltd v British Telecommunications Plc [2021] EWHC 410 (Ch)

Introduction

Over the last seven decades, the United Kingdom has invented, shaped, and developed a vast catalogue of music genres, legendary acts, and cultural movements. From Cliff Richard & The Shadows in the late fifties and the ‘British Invasion’ of the sixties (which spearheaded the explosion of The Beatles, The Rolling Stones, Cream, and Sir Tom Jones amongst others, onto the world stage), through to the likes of Ed Sheeran, One Direction and Adele in the contemporary music charts, its credentials are certainly impressive.

Despite being a beacon of creativity and freedom of expression for artists, however, the UK has also remained old-fashioned in some respects. For example, sales of vinyl records, cassettes and older ‘MP3’ style music players have increased rapidly over the last few years. This reluctance to move at the pace of technological development is not limited to the general public though. Significant financial issues, licensing difficulties and antiquated policies within the UK music industry - coupled with a begrudging attitude towards policing and enforcing copyright online – have also been blamed for the struggles many artists have increasingly faced since the advent of digital music consumption.

The last major change to legislation occurred almost twenty years ago (well before the likes of Spotify, YouTube, and Apple Music). Since then, English Courts have been importing concepts and legal mechanisms from TV and broadcasting legislation when passing judgment (thus, in my view, creating precedents in a slightly ham-fisted manner). Consequently, the industry is currently at a crossroad, with technology and policies running perpendicular to each other. Of course, it ought to be the case that as technology continues to evolve, so does the way the consumer listens to and otherwise interacts with music, and so does legislation.

By assessing the relevant literature, this paper will identify the crux of the industry’s issues and will explore whether the legislation has, in fact, evolved over recent years. It will explore the interactions between UK music copyright law, interspersed with comparisons from other jurisdictions to enable the exploration of alternative approaches and viewpoints. Crucial bones of contention in the industry will be analysed, revealing the reality of being an artist in the UK in the modern day, as well as likely future developments. Although no single system of regulating and legislating the music industry can be entirely effective (assuagement shall always give way to illegal activity by virtue of largely being digital nowadays), this paper will conclude with recommendations for how we can better look after the interests of music artists/copyright holders in the UK.

Background reading on the history of UK music copyright law.

Moral rights have been in existence far longer than anything resembling the legal rights we know of and rely upon nowadays. It is, perhaps, unsurprising then that copyright is not a new idea. In fact, the idea of the ‘paternity right’ (the right to be identified as the author of a work) existed in Ancient Greece and Rome. Fast forwarding thousands of years and through several attempts to legislate copyright in the UK (through acts like the Licensing of the Press Act 1662[1], which had an appreciable role in the concept of regulating sheet music), we ended up with the Statute of Anne 1709[2]. The importance of this Act regarding music was not immediately apparent, as much like with the preceding Act of 1662, ‘sheet music’ was not explicitly mentioned.

However, in 1777[3], it was confirmed that music (in the form of sheet music – that being music written in notation form) was copyrightable under the Statute. A monumental leap forward came only decades later, with the Copyright Act 1842[4], which revised and consolidated all previous copyright Acts. For the first time, copyright was granted to each author for each book published, for a duration which was to be at least ‘the lifetime of its author, plus a further seven years’. This was subject to a minimum of forty-two years from the date of first publication (to protect the work, should the author die soon after publication). To contextualise this, in the 19th century music was solely available in written format. In order to own the copyright for a song, therefore, one had to own the physical manuscript for it. By extending the copyright period from the previous fourteen years, the manuscripts dramatically increased in value. This was, in many respects, the advent of artists being able to earn money by selling their music as opposed to from live performances. Moreover, the Act established written music as a personal property, making it capable of bequest. Additionally, several mechanisms were put in place to stop illegal copies being made and sold; firstly, illegal copies were to become the property of the copyright holder; secondly, editions published outside of Britain were made illegal and to be forfeited to the copyright owner; and thirdly, the illegal importation of copies of work would, on conviction, result in a fine of £10 (equivalent to £1300 in 2022) plus double the value of each copy of the work. At this point, the development of legislation becomes rather confusing, so I have summarised these below for ease of understanding.

When? ----> Act/Convention ----> Key Purpose/Development

1886 (ratified with effect from 5th Dec 1887) - Berne Convention for the Protection of Literary and Artistic Works - Gave international copyright protection to creative works (including songs) of citizens of member state signatories[5]. Abolishes requirement to register foreign works[6].

1908 (ratified with effect from 9th Sep 1910) - Berlin Act[7] (Berne Convention Revision) - Extended duration of copyright to ‘the lifetime of the author, plus fifty years’[8]. Made formal registration in a member state no longer a requirement[9] to get copyright protection in said state.

1911 (with effect from 1st July 1912) - Copyright Act[10] - Added to composers’ rights with control over (re)production of works by any mechanical means[11], to be able to sell via publishers for the first time, and full control over authorising performances of the work in public[12]. Abolished common law protection, thus copyright protection could only be conferred by statute.

1928 (ratified with effect from 1st August 1931) - Rome Act[13][14] (Berne Convention Revision) - Formally added moral rights[15] of integrity (right to not have work subjected to derogatory treatment) and paternity (right to be identified as the author) to the convention[16].

1934 - Gramophone Company, Limited v. Stephen Cawardine and Company[17] - Instrumental in shaping the industry. This case, brought against a coffee shop, resulted in British courts recognising that owners of sound recordings should be remunerated for broadcasting of their copyright (something songwriters were already paid for through the PRS)

1956 (with effect from 1st June 1957) - Copyright Act - Came to be as a result of the UCC[18] signed in Geneva in 1952, as well as the Gregory Committee’s report[19] of the same year. Apart from sections 15, 34 and 37, the entirety of the 1911 act was repealed. It implemented the additions to the Berne Convention and resulted in the creation of the Performing Right Tribunal for the resolution of copyright disputes.

1961 (ratified with effect from 18th May 1964) - Rome Convention[20] - Strengthened the protections given to artists and helped prevent recorded music piracy[21][22]

Up to this point, the legislation has mostly developed at the same pace as technological advancements and copyright holder’s interests. Indeed, this is true even beyond the legislation, for example with the ex-gratia agreements by the PPL in 1934 and 1946[23] to properly compensate musicians[24]. From this point onwards, legislation and precedents emerged which are familiar to us in the 21st century. The question remains, however, of whether this pace of legal advancements would last.

Chapter One: The Current Legislation and Organisations

Perhaps surprisingly, much of today’s legislation and regulatory framework is either conceptually based on the antedated laws and conventions, or is almost a word-for-word copy of them. However, what is particularly interesting is the shift from vagueness to specificity in sections of the legislation (CDPA[25] s.296ZD, which speaks about rights and remedies against devices and services used to circumvent technological measures[26], being a good exemplification of this meticulousness), as well as the much-improved plasticity.

For example, in Bach[27], the legislation and legal arguments were very rigid and black-and-white. The rationale that “The words of the Act of Parliament…….books and other writings…..is not confined to language or letters”[28] is extraordinarily simple; it was a case of literally applying ‘the letter of the law’. Of course, these were much simpler times, without the precedents and conventions we now have. It is still striking, however, just how sharply this contrasts with contemporary cases. In Paramount Home Entertainment International Ltd[29], the complexity and pliability of law in the modern age was illustrated with eighteen principles established under European law being summarised by the court. Moreover, simply establishing whether internet service providers allowing websites to display links to programmes and films, for which they did not own the copyright, was a breach of copyright protection (amounting to a “communication to the public”, as per CDPA 1998 s. 20) was fraught with ambiguity and complexity. The result was the intertwining of domestic and international law, with arguments of relevance, application, and the supremacy of the CDPA s.20 and s.97A (which allows for blocking injunctions against service providers) against the European Directive 2001/29[30] art.3(1) (under which, the provision of a link would not amount to a “communication to the public” in and of itself). Ultimately, the precedent set in Twentieth Century Fox[31] was applied, meaning that the combined effect of providing a link to such a website AND uploading content to the linked site DID amount to a “communication to the public”, thus an injunction was granted as the copyright had been infringed.

This does, however, bring up a paradox. Despite the law becoming more meticulous and pliable to a vaster array of situations, the legal issues themselves are becoming harder for courts to pass judgment on. Whence, one may ask what developments are contained within the current legislation? And are they sufficient developments, given the legal issues seem to constantly be becoming harder to answer?

1.1: The Copyright, Designs and Patents Act 1988

The CDPA was introduced as a way of streamlining and reformulating the existing copyright law (which, up until this point, was largely based in the 1911 Act[32]). It was a second attempt at setting out the rights of authors and having a more cohesive and comprehensive primary legislation. Indeed, the preamble to this Act explains its purpose as “to restate the law of copyright, with amendments; to make fresh provision[s]….”[33]. Resultingly, there was an en masse repealing of the existing law, alongside the introduction of new legal and moral rights. Whilst the CDPA has since been updated numerous times, largely due to EU member state ‘harmonisation measures’, the core concepts and values of the Act remain.

One of the Act’s key concepts is the clear distinction between primary and secondary infringement, with the former not requiring knowledge by the infringer that an infringement has been committed. This means that copyright infringement can take place accidentally, as was the case in Baigent[34]. When the allegation of infringement concerns sound recordings, such as music, and their communication to the public (as provided for by s. 20[35]) however, it can often be much harder for a party to prove if the infringement was accidental or not. In Warner Music UK[36], a leading case in music copyright law, LJ Birss stated, of posting copyrighted music material online, in judgment:

“Non-profit linkers will be presumed not to know until they are told. Profit making linkers will be presumed to know. If they can rebut the presumption then their initial posting will not have been an infringement.”[37]

Despite this being similar to the European view in by GS Media[38], it remains unclear what the view on copyright is ‘on the continent’ overall (even despite CDPA revisions for the benefit of EU harmonisation objectives). In Renckhoff[39], the consent of the author of a photograph was required to post it on a website, despite it being accessible for free on another site (which had been granted consent by the author). Contrastingly, in Svensson[40], the permission of the copyright holder was not deemed a requirement for the owner of a separate website to redirect users, via hyperlinks, to said copyrighted material on a freely accessible basis on another site. This neatly highlights the point that copyright law is not a black-and-white topic. And with that in the foreground, how can we – even as a single nation – possibly regulate and legislate an industry which is so international; an industry in which law and policy is so open to interpretation?

One way the UK has tried to find an appropriate, common-sense approach regards the remedies for infringement. Specifically, chapter six CDPA provides the rights and remedies of the copyright holder. The main provisions within are as follows:

Copyright Infringement is actionable by the copyright owner[41], with exclusive licensees having the same enforcement rights as owners[42]. In the case of joint-ownership, either may bring their own proceedings, and reproducing the work without the other’s consent is an infringement[43].

Available relief for infringement is the same as with any other property right, for example:

o By way of injunctions, damages, and accounts[44]

o By the delivering up of copies of the work[45]

o By the forfeiture to the copyright owner or destruction of the infringing material[46]

o Where there are multiple copyright owners, the offending material may be sold, with the proceeds divided amongst the copyright owners[47]

1.2: The Copyright and Related Rights Regulations 2003

Brought about as a result of the Information Society Directive[48], these regulations are the assimilation of European harmonisation objectives into British domestic law. Its purpose was threefold: to update the copyright laws relating to prohibited and permitted acts (with a particular interest in commercially performed acts); to improve upon the existing protection and enforcement measures regarding copyright and performers rights; and, to take account of the advancements in technology, such as the internet[49] the wireless broadcasting[50].

1.3: The PRS, MCPS, MU and PPL

PRS[51], which is a copyright collective[52], acts on behalf of its members to negotiate licenses, “collect license fees and then distribute royalties to its members, as well as…..monitor[ing] the use of works”[53]. Whilst PRS and MCPS used to be distinctly separate bodies, using an alliance to protect the values of copyright and the interests of its members, MCPS is now part of the PRS umbrella (whilst remaining a separate collection society, with PRS providing services to MCPS under the name “PRS for Music”). Interestingly, PRS represents its members (which, much like MCPS, largely consists of songwriters, composers, and music publishers) in the context of performing rights and collecting royalties when music is played or performed in public, whereas MCPS covers reproduction of the music, be that by CD, digital downloads, broadcasts (e.g., on the radio), online etc. Since 2018, the PRS for Music umbrella has been in a joint venture with PPL (under a private company called PPL PRS Ltd), with the objective being to make it easier for their members to obtain music licenses.

The MU also functions as a CMO, using its existing agreements with the British Phonography Industry (BPI) to invoice companies for use of musician’s performances. However, it mainly concerns itself with session musicians (musicians who are paid to record something for another artist), and is responsible for distributing royalties to members AND non-members (so session musicians do not need to become members to receive their royalties). Furthermore, whilst the other organisations tend to focus on the general legal rights of copyright owners, the MU focuses on the importance of fair compensation as something which could “make a positive difference to the overall viability of their careers”[54].

Chapter Two: Contemporary issues within the UK music industry

Despite being ferociously resilient, the UK music industry is currently experiencing some chronic issues. These issues have led to a myriad of consequences; musicians being unable to financially support themselves, the above organisations frequently issuing legal proceedings, future artists staying away from the industry, and the dawn of a new era of music piracy online.

2.1: Copyright holder remuneration for ‘streamed’ music

A massive issue facing the industry at present is how and what to pay a copyright holder for music being streamed. Given that Spotify has only existed since 2006[55], Deezer since 2007, YouTube Music since 2015, and Tidal since 2016, the whole industry of streaming music is still in its infancy. However, the effects of the ‘digitalisation’ of the industry can already be widely seen and demonstrated. For example:

In 2000, featured artists and studio producers received £205 million from physical sales (equal to some £348m in 2019 terms). In 2019, their revenue from physical sales, downloading and on-demand streaming equalled the same pre-inflation adjusted figure of 2000: £205m, representing a 41% decline in revenue in real terms[56].

Over the same timeframe, record company revenue declined from inflation-adjusted figures of approximately £1,360m to approximately £670m (a 51% decline)[57].

Over a third of musicians (37%) reported earnings of £5,000 or less from music in 2019 and nearly half (47%) earned less than £10,000. 62% earned £20,000 or less from music in 2019[58].

50% said their income from recorded music has declined over the past 10 years[59]

·43% said that insufficient income from streaming caused them to get a job outside of music[60][61]

This issue sadly goes far beyond the UK music industry. Looking at the inflation adjusted global revenue of the music industry over almost a two-decade period, we can see a vast decrease in revenue between 2001 and 2014, with only a marginal increase year-on-year since then. This coincides with the popularisation of downloading music in the mid-to-late noughties, and the rise of streaming in the mid 2010’s.

A further undeniable explanation is the difference in price between owning physical music (such as a CD) and streaming. For example, CD’s may ordinarily cost £10 each, from which the artist may expect to receive anything from £1 to £3 for each copy sold. Nowadays, however, the average per-stream revenue sits between £0.0011 and £0.0128. This means that per million streams, one might expect revenue anywhere from £1,100 to £12,800 (with Spotify, the most popular service, allegedly paying £5,000 per million streams), from which the artist only receives a small fraction[62].

To confuse matters further, different organisations, countries, agencies etc. have different benchmarks for how many streams are equivalent to the sale of a single album. The range tends to be between 1,250 and 3,750, with the latter being ad-supported streams and the former being premium streams (i.e., a more expensive subscription with no adverts played between songs). This remuneration model severely affects artists who are less well known, or are session musicians, with 82% of surveyed musicians in the UK reporting that they earn less than £200 per year from streaming[63]. This is, in part, due to lesser-known musicians often having contracts with poor revenue return rates, and, in part, due to fewer people buying CD’s (which pays copyright holders more than streaming).

[64]

As mentioned, the amount an artist receives in royalties is largely dependent on the individuals’ contract. Thankfully, within the publishing sector at least, there is an internal agreement to split revenues 50:50[65]. In addition, as music consumption is rarely restricted to a single territory, PRS and other societies have entered several partnerships[66]. This has two positive results; firstly, it allows for better licensing terms and far superior enforcement and regulation of the licenses; and, secondly, it allows for the simplification of what would otherwise be a terribly messy situation, from which collecting the correct revenue would be neigh on impossible. This practice is similar in nature to how it works in continental Europe, where publishing rights holders tend to partner with other rights societies, from which they then directly license “Anglo-American repertoire”[67] to streaming services.

In order to attempt to bring some stability to this confusing framework, revenue shares are sometimes offered with other incentives, such as equity shares, minimum sum guarantees, and advance payments (the rationale being to try and stabilise the uncertainty often associated with royalties). Despite this, the amount received by the artists/composers often remains small. This remains true of music royalty contracts for streaming and downloaded music (where you aren’t listening to a live stream, having instead downloaded a song in your personal ‘library’ for offline listening). As we can see from the three graphs below, composers/lyricists and featured artists do marginally better from streamed music when compared to downloaded music. However, the increase in both methods of selling music still does not make up for the loss in physical sales (and the higher advances musicians used to make) since the streaming era began in 2015.

[68]

[69]

[70]

2.2: ‘Stream ripping’ and ‘cyberlockers’

Ordinarily defined as taking a song or video from a streaming platform, converting it into a downloadable file, and then downloading it for offline use[71], stream ripping enables all the technological measures put in place to protect the value and proper usage of the artists work to be bypassed. When combined with other forms of piracy, like the use of cyberlockers (online platforms – synonymous with copyright infringement – which allow unlicensed copyright content to be uploaded for use by the uploader, third-parties, or for illegal distribution), the result is devastating, with some £200 million being wiped from the industry’s ecosystem each year. Just last year, two record companies managed to secure further blocking injunctions, obligating the six largest UK ISPs to impede access to services which either promote or enable music piracy. The applications issued by the record companies targeted a major cyberlocker, "Nitroflare" (in Capitol Records[72]) and a number of stream ripping sites, including two of the largest, "FLVto" and "2Conv" (in Young Turks Recordings[73])[74]. This was a monumental moment for the UK music industry, as ‘stream ripping’ and ‘cyberlockers’ are currently two of its greatest threats. Stream ripping services, for example, have increased in usage by some 1,390% in just three years[75].

Thankfully, the framework for the granting of blocking injunctions is well established in the UK, with four key elements to be established, namely;

that the respondent ISPs are "service providers" with the meaning of s.97A CDPA;
that users and/or operators of the target website infringe copyright;
that users and/or operators of the target website use the services of the respondents to do that; and
that the respondent has actual knowledge of this[76][77].

After considering these elements, and all the circumstances, the court will then decide whether it is appropriate to grant such an order.

2.3: Private copying of legally bought music for personal use

With the introduction of legislation in 2014[78], it became legal for people to make copies of music they had bought, if it was purely for personal use. Soon after, this was repealed after being found unlawful[79]. The rationale was that firstly, the introduction of such a provision effectively stopped copyright holders from being compensated for addition copies of their work being in the public domain, and secondly that it was merely an adoption of legislation which gave rise, inter alia, to potential economic benefits for ISPs[80]. Interestingly, however, CDPA still allows for disabled people to make copies for private use[81]. This also extends to (amongst others) educational purposes[82], private study[83], the making of temporary copies[84], and in some cases, the lending of copies to the public[85]. Perhaps I could be forgiven for being cynical, but there is no fool-proof way to police legislation like this. There is evidence of forethought, with phrases like “educational establishment” and “temporary copy” being defined in the act with some level of proficiency. Regrettably, this is not sufficient. “Private study”, for example, is merely defined as “does not include any study which is directly or indirectly for a commercial purpose”[86]. How anyone can successfully and efficiently enforce such gnomic law is quite unthinkable.

To try and account for this gap in royalties without making most of the population criminals (several reports like the Hargreaves Report[87] and CEEMID reports[88] suggest that most people engage in private copying, such as from a CD to a laptop[89][90]), one could very easily change the way music is sold and used without having to alter existing legislation much, if at all. For example, in the UK – and in many countries around the world – the production, publishing, and revenue sharing of music is taxed higher than most other industries[91]. This, of course, pushes the cost up for the consumer and thus makes it more likely that people will ask others to copy their music instead of buying it themselves. By simply bringing VAT, and any other relevant taxes, down in line with other industries, consumers would be less likely to engage in infringing behaviours.

Moreover, blocking injunctions ought to be a last resort. Whilst they work in the short term, BitTorrent sites[92] like “The Pirate Bay” and “Torlock” will continue to resurface, and will continue to develop their elusiveness better than Houdini. Instead, we must understand why consumers are being driven to use such sites. Increasing costs could be, at least in part, to blame. In such a case, sadly, there is no comfort to be found. Increases of 100-1000% are recommended for countries which have private copying levies[93], in order to account for the unwillingness and inability of consumers to purchase music in today’s climate. It also seems to me that the precision of wording is important here, but is much overlooked. In the European Directive[94], permissible private copying is defined as that “made by a natural person for private use”[95] in return for “fair compensation” – although, this is not defined within the Directive itself. The important thing to note is that in its draft form, “private use” instead said “personal use”. This change has allowed large groups of people to copy and exchange copyrighted material, under the guise of simply being friends sharing files for private enjoyment. With the otiose attempts of the UK government to define simple words and phrases[96], this precision with definitions could be extremely helpful for us to successfully regulate private copying without causing significant harm to the copyright holder(s).

Chapter Three: Future trends in the industry

One of the trends we are already seeing is the increase in established artists selling the rights to their discography. For example, Bob Dylan and Bruce Springsteen have both recently sold their rights, in deals each estimated to be worth nine-figures. Whilst artists have been engaging in these deals for decades, the value of rights has increased dramatically in recent years. This is largely due to the rise of streamed music, which makes it easier to ensure you have a constant stream of royalties coming in (although, of course it brings in less than the equivalent album sale[97]). Moreover, its more cost effective, as there is no appreciable advertising, packaging, shipping etc costs to consider, and currently seems to be the direction the industry will continue to grow in for years to come. Thereby, inventors are considering purchasing rights to popular music as solid, long-term investments which are bound to constantly grow in value whilst reliably remunerating them. Last year alone, over $5 billion was spend on music right acquisition deals across the globe[98], with investments from outside the industry starting to become common-place. Artist catalogues’[99] are also outperforming new releases currently, accounting for 69.8% of the US market last year[100] and a massive 72% in the UK[101].

Linked into this, I suspect the right to equitable remuneration will soon be established. Despite not currently arising when music is streamed, the 2021 report from the Digital, Culture, Media and Sport Committee (DCMS) on its Economics of Music Streaming inquiry has suggested that we follow other jurisdictions, such as Spain, with implementing such a right[102]. Such a change to the CDPA could drastically alter the revenues artists receive for streamed music, as a statutory provision would override any agreements between copyright holders and the original artists – which, at the best of times, often offer a minute percentage to the artists. Indeed, the then Minister for Science, Research and Innovation, George Freeman MP, stated (following the first reading of the proposed Bill) than the government would put forward its proposals by September 2022, with industry-led change likely to be front-and-centre of the proposals[103].

Furthermore, I suspect that Artificial Intelligence[104] will evolve to play a large part in the industry. Already, AI machines can create music, with several machines/programs already being recognised as authors/composers by the likes of SACEM[105]. This has stretched the reaches of creativity vastly, with music now being able to be created with no human input during the composition stage[106][107]. Furthermore, as these machines learn by first consuming large amounts of songs already in existence, it creates some very interesting legal questions. For example, is the music consumed by the program within the reach of copyright protection, as it isn’t being communicated to a real human? Is the work produced by the program automatically infringing the work it learned from, as it MUST base huge amounts of its composition on what it ‘hears’? If the music produced is eligible for copyright protection, is the author the program or the person who fed the program the source material (as paradoxically, one cannot exist without the other)?

Indeed, there have been cases in common law jurisdictions in recent years which have concerned such questions. In Acohs[108], the Federal Court of Australia concluded that the HTML code for information sheets which were computer generated could not be copyright protected, as they were deemed to not have an author[109]. This then begs the question of whether the integration of AI into music DOES, in fact, make them authors, or whether they are merely a tool for making adaptions of source material[110].

On the upside, one may well consider AI creations to be the perfect solution to combating some of the existing issues in the industry. For example, as there may not be an author (if the rationale of cases like Acohs were to be ported over to music), there shouldn’t be claims to exclusive rights[111], or attempts to monopolise[112]. Seeing an increase in copyright cases concerning well-known tracks (e.g., Skidmore v Led Zeppelin[113] and Griffin v Sheeran[114]), makes me wonder whether the projection of AI music into the industry will act as a springboard for human ingenuity, kickstarting the originality lacking in some contemporary music, and being a vessel for future generations of artists to venture out into the profession.

Chapter Four: Recommendations and Conclusion

Equitable remuneration is, in my view, an artistic right. We should not allow hard-working, and often poor[115], musicians to accept contracts with poor revenue shares. Nor should we, as a first-world nation with an internationally respected and important music industry, force our artists to accept scraps trickling in from streaming services[116]. We already have the infrastructure in place which allows copyright holders to receive royalties, even from streaming in other jurisdictions[117], without it becoming a messy affair. It ought not to be a great hardship to encourage the government to implement, within this process, a means of making sure fair compensation is paid. By this, I mean that – especially in the current climate – costs associated with making and sharing music have skyrocketed in recent years, yet over a similar time period, artists earnings have decreased, in real terms, by 41%[118]. This lack of fair remuneration has created a precarious position, with 43% of musicians having jobs outside of the industry[119][120] so that they can support themselves.

It is unfortunate that it took until the 2021 DCMS report[121] for this issue to be brought front-and-centre. It is even more disheartening that the implementation of such a change to the legislation is unlikely to happen anytime soon[122]. This is despite the CDPA now catering to the likes of computer programmes[123], and the efforts of various European harmonisation objectives[124]. If nothing else, surely in this age of rapid developments and a fanaticism with digital consumerism, such a provision is in the best interest of the MCPS and its members? One cannot think of a way to better fulfil their mission objective[125] than to create a statutory requirement of a minimum level of remuneration, much in the same way as the national minimum wage and the London living wage. Having such a legislative provision in place would surely streamline the process, whilst also making sure that developments within the industry are not only for the benefit of consumers and record executives, but also for musicians. Putting musicians first for a change is not an abstract idea, it is a necessity. The viability of music as a career[126] needs to be improved, and a statutory right to equitable remuneration is one of the most straightforward ways to do this.

My second recommendation is that we understand the need for reformation of the financial incentives beyond concepts like equitable remuneration. Massive hikes in private copying levies are being proposed and implemented in countries all over the globe, with some increases going over 1000%[127] to discourage illegal websites and services. Over £200 million is being sucked out of the industry in the UK every year, despite the best efforts of record companies and CMO’s to put blocking injunctions in the way of host sites. Whilst we can continue along this path in the short-term, illegal sites are easy to create and, with the advent of BitTorrent sites, do not need a host website address to operate.

This is not a new issue. In 1842[128], the issue of music being stolen was prevalent enough for music manuscripts to become copyrightable material. Indeed, for over one-hundred years the reproduction of copyrighted material has been legislated against[129] too. So, why do we still find ourselves unable to get a grip on this? Perhaps we must go beyond the idea of levies, to concepts like lowering VAT within the industry. The industry is currently charged VAT at a higher rate than many other professions[130]. The rationale behind this is beyond me, but one must remember the vast array of goods, services, and professionals involved in the production, marketing, public relations etc. of music and artist personas. As such, it is hardly shocking to learn that some of these services attract higher VAT rates. Of course, these costs are passed on to the consumer. So, despite many physical music formats becoming more expensive and membership for streaming services constantly becoming more expensive, the share received by the artist and their ‘associates’ is swallowed up by these costs[131]. If one were to bring VAT in line with other professions, the number of artists who can receive fair remuneration from their music would naturally increase.

Such an alteration could also have an impact on the trend of artists selling their discographies. Whilst numerous very successful artists are selling their discographies for other reasons, newer artists – and those who play less ‘in-demand’ genres – are increasingly finding themselves having to sell shares in, or the entirety of, their discographies in order to afford to live. Billions are now being spent each year acquiring the rights to these catalogues[132], often being bought by large recording labels and outsider financial organisations. The rationale for many less well-known artists doing this is that the amount they may receive for selling their discography may be worth many years of streaming royalties. Of course, such companies can hold onto these assets for a long time to recoup their costs and turn a profit, whereas lesser-known artists often need an instant income.

Lastly, I feel that we urgently need to rectify the tortuously nebulous attempts to define words and concepts, so that we may better regulate and enforce. With the rise of AI technologies, and even AI ‘musicians,’ how do we define an author/artist? Do we specify that one must be a natural person, or do we perhaps create another word for music made by a robot? In the fight against piracy, why do we not discriminate more thoroughly when defining words like ‘private study’, ‘temporary copy’, and ‘educational purpose’? Without black-and-white, unambiguous definitions for such terms, it is exceedingly difficult to prosecute someone for allegedly infringing copyright. How long is a temporary copy allowed to exist before it is no longer temporary? And by the same token, with music consumption becoming digitalised, one could well argue that all music is temporary, as unlike with a physical format, you can permanently delete it with a click of a button.

Even though defining words and terms more effectively is extraordinarily important, I feel that it goes beyond that to the use of robots and ‘smart’ software. For example, were we to recognise AI ‘artists’ as true artists, it could well help to combat the increase in the use of stream ripping and cyberlocker sites over recent years[133]. I say this because the making available of a repertoire of music which is free from exclusive rights or royalties being owed[134] could be precisely what is needed to drive people away from using these illegal sites. This is specifically why defining words, concepts, and terms clearly, succinctly, and with absolutely no room for interpretation is so important. Without the clear direction of the law, the entire industry is at the mercy of individual case precedents and expensive, time-consuming judicial reviews and government reports. Perhaps if we had recognised AI within the CDPA in a cogent manner, we would not be having a discussion which bears a striking resemblance to a ninety-year-old case[135]. Moreover, it could well be argued that if we paid more attention to defining words, then we would not be losing over £200 million a year to illegal consumption, as there would not be such a grey area in the law. The public, and those behind ripping and torrent sites, would know precisely where the line is between legal and illegal consumption and enjoyment of music.

To answer the question of whether existing UK music copyright law sufficiently protect artist’s rights in the age of digital consumption, one must look to other jurisdictions. Failure to engage with the issue through a cosmopolitan lens can easily cloud one’s judgment, so much so as to make our current laws seem more than adequate. However, our legislation is, in my view, currently nowhere near sufficient. We gloss over terminology with reluctancy to engage with the words and their deeper meaning[136], we haven’t any statutory right to fair compensation for artists/copyright holders, and the issue of piracy is being tackled from the wrong end of the pitch.

Of course, we do have blocking injunctions – which are used frequently – and a whole host of protections[137] in place. However, many of these originated in a bygone era, during which CD’s were the cutting edge of technology and no-one knew what a ‘Spotify’ was. To continue relying on just these provisions without going further would be to stick a temporary plaster on an ever-growing issue. Perhaps our legislatures ought to consider not what one can do when infringement has occurred, but rather the public infringes copyright in the first place? Maybe, instead of fixating on hammering ISPs, we should focus on bringing the struggles of artists (and especially lesser-known artists) to the foreground. Warner[138]already told us that those not profiting from their infringement will be presumed to not know what they’ve done wrong. Surely, this is calling for ignorance and naivety to be pleaded at any available opportunity? Is it not akin to proudly announcing that laws will not be enforced in cases of “accidental” infringement (despite it still being a crime as per secondary infringement in CDPA and the application of this in Baigent[139])? When mixed with the obscureness of our definitions in copyright legislation, we are doomed to fail our artists.

We cannot pretend that the digitalisation of music is not happening, or that legislation designed from the ground up, specifically aimed at regulating digital music, is not required. Perhaps, given the range of CMO’s already in operation, we ought to transfer the digital side of music away from MCPS, to a separate, new society for digital music. I feel that this could allow us to give it the attention it deserves. Especially with the rise of AI music over the past few years, we really must do more to get ahead of the crowd. The current framework clearly lacks the precision and streamlined provisions required to operate effectively in the modern age, and with digital music making the industry more international than ever before, we need clear and helpful provisions (perhaps now more than ever before), for the benefit of artists, consumers, labels, and the CMO’s who enter bi, and multi, lateral deals with CMO’s in nations all over the globe[140].

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References

[1] The official long title was "An Act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Books and Pamphlets and for regulating of Printing and Printing Presses". It remained in-force until the Statute Law Revision Act 1863, which also repealed many other acts which superseded it. [2] Which became effective on 10th April 1710. It was the first modern copyright law in England, and the first in the English-speaking world. As part of the act, writers were given control over their work for 14 years, after which they could renew for another 14 years. [3] Bach v Longman (1777) 2 Cowp. 623 [4] 5 & 6 Vict. c. 45 [5] Samuel Ricketson, The Birth of the Berne Union, 11 COLUM. -VLA J.L. & ARTS 9 (1986), 6, para. 2 [6] World Intellectual Property Organisation (WIPO), Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886), 1(b) Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886) (wipo.int) (accessed 29/10/2022) [7] Berne Convention Texts, https://www.wipo.int/edocs/pubdocs/en/wipo_pub_berne_birpi, 34-51 [8] Ibid, Article 7, 38 [9] Ibid, Article 4, 37 [10] Also known as The Imperial Copyright Act of 1911 [11] This included perforated paper rolls for use on ‘automated’/self-playing pianos and gramophone records and is what necessitated the creation of the MCPS in 1924. [12] Which, consequently, meant that an organisation needed to be formed to protect composers’ rights here, thus the formation of the PRS. [13] Formally the International Convention for the Protection of Literacy and Artistic Works [14] Berne (n7), 60-78 [15] Article 6bis (“Independent of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author's honour or reputation.”) [16] Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, art. 6bis, S. Treaty Doc. No. 27, 99th Cong., 2d Sess. 41 (1986) [17] [1934] 1 Ch. 450 [18] Universal Copyright Convention, with Appendix Declaration relating to Article XVII and Resolution concerning Article XI, Geneva, 6th September 1952 Universal Copyright Convention, with Appendix Declaration relating to Article XVII and Resolution concerning Article XI. | UNESCO [19] Report of the Committee on the Law of Copyright, 1952, Cmnd.8662 [20] The formal title is The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations also known as the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations and the Rome Convention, 496 U.N.T.S 43 [21] Ibid, 3, Articles 5-7 [22] Anthony Robinson, UK copyright and the communication of sound recordings to the public: the slings and arrows of outrageous fortunes, Ent. L.R. 1995, 6(8), 312-321, 317, Para 1-3. [23] Peacock and Weir, The Composer in the Market Place, Faber Music Ltd, 1975, 38 to 39, as cited in Ibid, Para 3 [24] The former of which required PPL to pay 20 percent of its net income to named performers and the latter of which resulted in an additional 12.5 percent being paid to the MU to make sure session musicians were adequately remunerated for their services. [25] Copyright, Designs and Patents Act 1988 [26] With “technological measures” being clarified at s.296F as “any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program.” [27] Bach (n3) [28] 98 E.R. 1274 [29] Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2013] EWHC 3479 (Ch), [2013] 11 WLUK 310 [30] Formally, The Information Society Directive, colloquially known as The Copyright Directive [31]Twentieth Century Fox Film Corp v British Telecommunications Plc [2011] EWHC 1981 (Ch), [2012] 1 All E.R. 806, [2011] 7 WLUK 872 [32] Imperial (n10) [33] Copyright, Designs and Patents Act 1988, c. 48, Introduction [34] Baigent v Random House Group Ltd [2007] EWCA Civ 247; [2008] E.M.L.R. 7 [35] "the communication to the public of the work is an act restricted by the copyright in- (a) a literary, dramatic, musical or artistic work, (b) a sound recording or film, or (c) a broadcast" [36] Warner Music UK v TuneIn Inc [2019] EWHC 2923 (Ch) [37] Ibid, 83 [38] GS Media BV v Sanoma Media Netherlands BV (C-160/15) [39] Land Nordrhein-Westfalen v Renckhoff (C-161/17) [40] Svensson v Retriever Sverige AB (C-466/12) [41] Copyright (n33), s.96(1) [42] Ibid, s.101 [43] As established during the time of the 1911 Copyright Act in Cescinsky v George Routledge & Sons Ltd [1916] 2 K.B. 325. [44] Copyright(n33), s.96(2) [45] Ibid, s.99 [46] Ibid, s.114(1) [47] Ibid, s.114(4) [48] European Directive 2001/29 [49] CRRR 2003, s.24-25 [50] Ibid, s.4-5 [51] PRS for Music Limited, formally the MCPS-PRS Alliance Limited [52] Otherwise known as a Collective Management Organisation. They are a non-governmental bodies. [53] Morten Hviid, Simone Schroff and John Street, "Regulating CMOs by competition: an incomplete answer to the licensing problem?", CREATe Working Paper 2016/03 (2016), pp.2–3, as cited in Dr. Nevena Kostova “UK developments in private copying: a case study of organisational stakeholders and their impact on copyright law and policy”, I.P.Q. 2018, 1, 68-89, I.P.Q. 71 [54] Musicians’ Union, "MU response to the IPO’s Consultation on proposals to change the UK’s copyright system" (March 2012), pp.4–5, paras 23–28, http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/response-2011-copyright-musicunion.pdf (Accessed 04/11/22), as cited in Ibid, I.P.Q. 85 [55] This was a time period known as the ‘pre-digital era’. Streaming as we know it today did not exist at the time, but you could download songs from the internet, which was a new technology which led to doubling the sales volume of single sales. Streaming was not recognised by the likes of the Official Charts (who compile the music charts in the UK) until 2014. [56] David Hesmondhalgh, et. al., ‘Music Creators’ Earnings in the Digital Era’, Intellectua