Copyright in the Balance: Notes on Some 21st-Century Developments

Abstract

This article surveys legislative changes, proposals and case law affecting music copyright in the first decade of the 21st century. After restating the basic principles of copyright law, it analyzes the forthcoming increase in the duration of copyright in sound recordings in the European Economic Area. This involves a forecast of its impact on the income of musicians and a critique of the analysis of the increase by Martin Kretschmer and his associates. The article then considers a number of legal disputes concerning the limits of fair use or fair dealing in copyright. These include a suit involving the inclusion of John Lennon's “Imagine” in a film, a parody of Don Henley's “All She Wants To Do Is Dance” in a political campaign and two cases where consumers were found to have infringed copyright by their online uses of recordings. The suit brought by Viacom against Facebook is also discussed. After introducing the Creative Commons solution to copyright issues, the article concludes by stating that, notwithstanding the changes wrought by the digital era, the balance between public and private interests in copyright has generally been maintained.

Notes

[1] The alleged offenders in these cases or in discussions of P2P activity are almost invariably referred to as “pirates,” a term which is avoided in this article since it tends to obscure understanding, whether used negatively as a synonym for thieves or proudly as a synonym for outlaws. There is a growing literature on such “piracy” both by academic scholars (e.g. Johns) or self-proclaimed pirates (e.g. Mason).

[2] “Attribution” is a feature of Creative Commons' so-called developing nations license, which allows a range of royalty-free uses in such countries subject only to such crediting of the author.