Music copyright in the digital era

Abstract

This thesis intends to explore various aspects of intellectual property rights pertaining to musical works, being primarily copyright and neighbouring rights, with particular emphasis to certain contemporary challenges to music right-holders brought about by technological advances in the digital age. Technological development and the development of intellectual property rights often go hand-in-hand, and this is why this thesis will start off by outlining certain core notions of copyright law, with particular emphasis on the field of music and to the new challenges faced within the digital age, outlining how technological advances very often outpace copyright law, forcing it to adapt in order to keep up with new uses of cultural works brought about by scientific and technological innovation. Peer-to-Peer file-sharing lies at the forefront of the digital copyright discussion. Importance will be given to the legal and institutional responses to this phenomenon; such as resort to notions of secondary liability as well as the “Generated Response Mechanisms” which have been employed in certain jurisdictions. The thesis will also delve into the requirements in order for copyright to arise, where a comparative analysis of the requirements of originality and fixation will be undertaken. Our analysis of the originality requirement will help us to understand better the issues of music sampling and appropriation, and how the law is in effect stifling the creative progress of society in this regard. Reference will be made to the recent phenomenon of User-Generated Content, as evidence of how the internet has democratized cultural production, while also emphasizing the legal challenges faced by amateur creators. The thesis furthermore aims to posit solutions to certain pertinent contemporary issues being faced in the realm of music copyright. In this regard, emphasis will be given to the recent phenomenon of digital streaming services and to alternatives to copyright such as the copyleft movement and Creative Commons Licenses.