Technology and the cultural appropriation of music

Abstract

Technology, particularly recording technology, has for more than a century threatened the copyrights of composers, publishers and performers. Users armed with this technology have been given the means to record, copy and distribute the works of others. The response of rights holders has been to advocate the reiteration and expansion of their copyrights. The increased copyright regimes while going someway to protect the rights of composers, publishers and performers has also swept material from the public domain, so making it unavailable to other artists and follow-on creators. This process is referred to by Lessig as the locking down and appropriation of culture, a process that some argue will lead to a lack of diversity and choice. The folk song The Legend of Tom Dula (Dooley) is one of the best known examples of this appropriation. This song had been freely available to generations of folk singers until it was captured in a recording. The recording was transcribed and copyright was claimed, the song was no longer in the public domain. Whereas technology provides the reason to expand copyright, information technology and particularly the internet has spurned a number of initiatives that may lead to the freeing of content. The open source movement has been very successful in freeing and generating content; this movement has itself led to other related initiatives. One of these, the Creative Commons, provides a broad based solution which through a series of alternative licensing contracts allows rights holders to lessen their control on their content making it more available for others to use. This paper considers the interplay of music, technology and intellectual property. It considers how developments in information technology can now be used to offset the expansion of copyright. After reviewing some of these developments, particularly the Creative Commons, and considering evidence now analysed from a European wide survey of musicians and publishers completed in 2008, the paper concludes that these fixes, rooted in intellectual property, unfortunately offer little by way of solution. However technological solutions not so closely tied to intellectual property may offer more appropriate and workable solutions.

Keywords:

• folk music
• copyright
• Creative Commons

Acknowledgement

I would like to thank my research assistance Roksana Moore for her help in the preparation of this article.

Notes

Original performances of the song by Proffitt recorded by the Warners were placed on the compilation The Warner Collection, Vol. II. Nothing Seems Better to Me: The Music of Frank Proffitt and North Carolina (Appleseed Recording, 2000).

J.A. Lomax and A. Lomax, Folk Song: USA, ed. A. Lomax, C. Seeger and R. Crawford Seeger (New York: Duell, Sloan and Pearce, 1947).

M. Landau, ‘Publication, Musical Compositions, and the Copyright Act of 1909: Still Crazy After All These Years’, Vanderbilt Law School Vanderbilt Journal of Entertainment Law & Practice no. 28 (2000): 47.

B. Haring and D. Chuck, Beyond the Charts: MP3 and the Digital Music Revolution (Los Angeles: Off the Charts, 2000), 29.

The record industry is part of the music industry which includes not only the recording industry but also the publishing industry, music and event merchandising, concerts, touring events industry and live entertainment. The record industry is dominated by a small number of global players; the four major record labels are Sony/BMG, EMI Group, Warner Group and Universal.

RIAA 2005 Year End Statistics, http://www.riaa.com/News/newsletter/pdf/2005yrEndStats.pdf (accessed March 9, 2007); BPI Commercial Piracy Figures 2005, http://www.bpi.co.uk/pdf/Comm_Pir_FIgures_2005.pdf (accessed March 9, 2007).

F. Oberholzer-Gee and K. Strumpf, ‘The Effect of File Sharing on Record Sales – An Empirical Analysis’, June 2005, p. 36. Available at http://www.unc.edu/∼cigar/papers/FileSharing_June2005_final.pdf

T. Gillespie, Wired Shut Copyright and the Shape of Digital Culture (Cambridge, MA: MIT Press, 2007).

P. Samuelson, ‘Digital Rights Management and Fair Use by Design’, Communications of ACM 46, no. 4 (2003): 43.

Report of the Copyright Committee (Gregory Report), Cmnd.8662 (1952) paras 165–176.

WIPO, Traditional Cultural Expressions (Folklore), http://www.wipo.int/tk/en/folklore/ (accessed June 12, 2008).

WTO, Ministerial Declaration on Doha Work Programme, 18 December 2005, http://www.wto.org/english/thewto_e/minist_e/min05_e/final_text_e.htm (accessed June 15, 2008).

C. Sharpe, English Folk Song: Some Conclusions (London: Simpkin; Novello, 1907), 16. Italics in original.

Songs of Woody Guthrie, http://www.geocities.com/Nashville/3448/guthrie/html (accessed March 5, 2008).

G. Boyes, The Imagined Village: Culture, Ideology, and the English Folk Revival (Manchester: Manchester University Press, 1993).

D. Harker, Fakesong: The Manufacture of British ‘Folksong’, 1700 to the Present Day (Milton Keynes, UK: Open University Press, 1985).

R. Jones and E. Cameron, ‘Full Fat, Semi-skimmed No Milk Today – Creative Commons Licences and English Folk Music’, International Review of Law, Computers and Technology 19, no. 3 (2005): 264–270.

The four major record labels are Sony/BMG, EMI Group, Warner Group and Universal. The number of music labels dropped from five to four when Sony Music Entertainment and BMG Entertainment merged in 2004.

Gowers Review of Intellectual Property (2006), available at http://www.hm-treasury.gov.uk/gowers_review_index.htm, 4 (accessed August 3, 2007).

Ibid., 40.

For a detailed analysis of the history of copyright with in the context of these cases, see R. Deazley, On the Origins of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695–1775) (Oxford: Hart, 2004); and R. Deazley, Rethinking Copyright (Cheltenham, UK: Edward Elgar, 2006).

L. Lessig, Free Culture: How Big Media Uses Technology and Law to Lock Down Culture and Control Creativity (New York: Penguin, 2004).

Creative Commons. Legal concepts, http://creativecommons.org/about/legal/ (accessed May 3, 2008). The Creative Commons is a movement based on the Open Source principles.

D.J. Spooky and Roger McGuinn interviews, available at http://creativecommons.org/audio/djspooky-mcguinn (accessed February 15, 2007).

WIPO, note 12, 270.

Wave Wheat Whispers, http://www.wovenwheatwhispers.co.uk/ (accessed February 15, 2007). Site now closed.

Gowers Review, note 19.

For example there exists a number of databases of traditional songs – see for example Folkinfo, http://www.folkinfo.org/songs/ (accessed June 2, 2008).