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Abstract
Considerable portions of Lessig's writing concern the relationship between intellectual property regimes and music. In Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity he reviews the unequal use of copyright in the reward for writing and performance of music on the radio. In The Future of Ideas: The Fate of the Commons in a Connected World he argues that intellectual property regimes need not be ‘full on’ (full fat) or ‘full off’ but partial (semi-skimmed). These ideas have found form in a more flexible regime of copyright through a series of alternative licensing contracts usually referred to as the Creative Commons licences. After reviewing what is considered to be folk music this paper will analyse the extent to which developments in the English law of copyright are stifling the folk music tradition and consider the extent to which the mechanisms proposed by the Creative Commons licences and the open source movement offer better solutions more suited to the needs of this tradition.
Notes
1 G Austin, ‘Copyright's modest ontology – theory and pragmatism’, in Eldred v. Ashcroft (2003) 16 Can. JL & Juris 163.
2 For a review of the meaning of the term public domain see D Lange, ‘Reimagining the Public Domain’, Law and Contemporary Problems,Vol 66, pp 463–483, 2003.
3 L Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Penguin Press, New York, 2004 and L Lessig, The Future of Ideas: The Fate of the Commons in a Connected World, Vintage Books, New York, 2002.
4 C J Bearman, ‘Who were the folk? The demography of Cecil Sharp's Somerset folk singers’, Historical Journal, Vol 43, No 3. pp 751–775, 2000.
5 G Boyes, The Imagined Village: Culture, Ideology, and the English Folk Revival, Manchester University Press, Manchester, p 14, 1993.
6 D Atkinson, English Folk Song Bibliography, 2nd edn, 1999, http://www.efdss.org/songbib.htm#1.%20Revivals
7 Rental Rights Directive amending Copyright Designs and Patent Act 1998, creating fully assignable property rights.
8 UK Copyright, Design and Patents Act 1998, sections 77 and 80.
9 33 F3d 1435 (1994) discussed in E Cameron, Apple v Microsoft, International Yearbook of Law Computers and Technology, Vol 7, p 243, 1993.
10 740 F Supp 37 (1990) discussed in E Cameron: Lotus v Paperback, International Yearbook of Law Computers and Technology, Vol 6, p 213, 1992.
11 M Farrell, Who Owns the Tunes? An Exploration of Composition Ownership in Irish Traditional Music, 2003, http://www.beyondthecommons.com/farrell.html, discussed below.
12 Glyn v. Weston Feature Film [1916] 1 Ch. 261, Williamson Music v. The Pearson Partnership [1987] FSR 97.
13 L Lessig Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Penguin Press, New York, 2004.
14 For a detailed review of the history of copyright and the public domain see D Hunter, Culture Wars, http://ssrn.com/abstract = 586463, p 22.
15 Note 13, p 173.
16 This topic is outside the scope of this paper and readers should refer to M Woodmansee, ‘On the author effect: recovering collectivity’, in M Woodmansee and P Jaszi (eds) The Construction of Authorship, Duke University Press, 1994 and S Fatima, ‘A legal philosophy for technological informatics, in 15th BILETA Conference, University of Warwick, April 2000, < http://www.bileta.ac.uk/00papers/fatima.html >
17 G Boyes. The Imagined Village: Culture, Ideology, and the English Folk Revival, Manchester University Press, Manchester, 1993 and D Harker, Fakesong: The Manufacture of British ‘Folksong’, 1700 to the Present Day, Open University Press, Milton Keynes, 1985.
18 Boyes, op cit, p 27.
19 For a discussion on the rights and wrongs of the erosion of the public domain see ‘The Bellagio Declaration’, in From the Cultural Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the Post-Colonial Era Rockerfeller Conference, 1993, http://www.cwru.edu/affil/sce/BellagioDec.html
20 Although the consensus at that time was that there was an implied requirement.
21 S3(2) CDPA 1988 but previously – probably – regarded as an implied requirement.
22 [1900] AC 539.
23 (1960) reported at [1976] RPC 169.
24 ss1(1)(b); 5A CDPA 1988, sound recordings.
25 See Norowzian v. Arks [1998] FSR 394.
26 Cornish & Llewelyn: Intellectual Property, Thomson Sweet & Maxwell (5th Edit 2003), p 405.
27 [1998] FSR 449.
28 [1998] FSR 622; the two cases are discussed in Cameron, ‘Structure and the classics’, International Review of Law Computers & Technology, Vol 12, No 3, p 547, 1998.
29 [2004] EWHC 1530, [2004] All ER (D) 23.
30 Supra.
31 [1999] EMLR 589.
32 [2003] FSR 238.
33 See below [1994] FSR 275.
34 Although one of the joint authors of this piece has consistently argued that Ibcos is extremely dubious in this respect in the context of computer programs.
35 ACCL, 1991, International Yearbook of Law, Computer and Technology, 1992.
36 [1994] FSR 275.
37 See Cantor Fitzgerald v. Tradition [1999] 2 All ER 411 discussed in E Cameron, ‘The pursuit of programmers by their ex-employers, International Review of Law Computer & Technology, Vol 13, No 2, p 255, 1999.
38 M Farrell, Who Owns the Tunes? An Exploration of Composition Ownership in Irish Traditional Music, 2003, http://www.beyondthecommons.com/farrell.html
39 Both passages cited by Farrell (op cit).
40 [1963] Ch 587.
41 [2001] FSR 11, [2001] 1 All ER 700.
42 See, for example, Schweppes v. Wellington Ltd [1984] FSR 210 and Williamson Music v. The Pearson Partnership [1987] FSR 97.
43 Lord Reid in Ladbroke v. William Hill [1964] 1 W.L.R. 273.
44 In the series Major Cases in International Review of Law Computers & Technology especially Cameron, ‘The measure of the program in copyright’, International Review of Law Computers & Technology, Vol 12, No 1, p 161, 1998.
45 [1994] FSR 275 discussed by Cameron, Ibcos V Barclay's Mercantile, International Yearbook of Law Computers and Technology, Vol 9, p 221, 1995.
46 Computer Associates v. Altai 982 F2d 693 (1992).
47 L Lessig, Free Culture: How Big Media Uses Technology and Law to Lock Down Culture and Control Creativity, pp 287–306.
48 L Lessig, Free Culture: How Big Media Uses Technology and Law to Lock Down Culture and Control Creativity, Penguin, New York, 2004.
49 L Lessig, Free Culture: How Big Media Uses Technology and Law to Lock Down Culture and Control Creativity, pp 287–306.
51 [2001] FSR 11, [2001] 1 All ER 700.
52 A McCann, Traditional music and copyright – the issues, presented at ‘Crossing Boundaries’, in Seventh Annual Conference of the International Association for the Study of Common Property, Vancouver, British Columbia, Canada, p 9, 10–14 June 1998, http://www.indiana.edu/∼iascp/abstracts/367.html
53 Intellectual Property and Traditional Cultural Expressions, Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, WIPO, 2003, http://www.wipo.int/tk/en/publications/785e_tce_background.pdf, p 44.
54 See Farrell, op cit.
55 For an exploration of the issues facing Irish traditional music in the context of performance rights see A McCann, ‘All that is not given is lost: Irish traditional music, copyright and common property’, Ethnomusicology, Vol 45, No 1, 2001.
56 GMU Project, Free Software Definition, http://www.gnu.org/philosphy/free-sw.html
57 D Hunter, Culture Wars, http://ssrn.com/abstract = 586463, p 22.
59 For a brief overview of the litigation see the Informit Network, http://www.informit.com/articles/article.asp?p = 175171&seqNum = 6
60 The recent correspondence in the Financial Times between Richard Epstein and James Boyle raises many of the potential problem areas with the open source idea, http://news.ft.com/cms/s/78d9812a-2386-11d9-aee5-00000e2511c8.html#U101244209021g4
61 A set of internal memoranda distributed by Microsoft pointing to the challenge of open source software, http://www.opensource.org/halloween/halloween1.php
62 Boyes, op cit p 4.
63 P Seeger, The Incompleat Folksinger, quoted in A McCann, Traditional Music and Copyright – The Issues, op cit, p 5.
64 S J Bronner, Creativity and Tradition in Folklore: New Directions, quoted in McCann, op cit, p 6.
65 WIPO Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/5/3 (2003) Annex para. 27.