IP and the Music Industry - Group 3 - WIPO-UNIGE IPSS 2021 - moodle@unige
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IP and the Music Industry Group 3 - WIPO-UNIGE IPSS 2021 By Laura Galvão Scalon, Pamela Echeverria, Asma’ Kamila Binti Hussein Kamal, Lobna El-Shinnawy, Anusha Mohapatra, Shraddha Pandit, Deah Kapoor, Hurmat Koul, Edoardo Duron, Prajjwal Kushwaha, Valentina D’Adda, Izotene Fidel-Anyanna, Jeonggu Lee, Gerard Kevin Cagatan, Maksim Cherpak, Louise Fensby-Bocquet, Ketevan Kavrelishvili, Marcelina Slugocka, Thala Maria Mouawad, Alberto Burzio, Nastassia Merlino
01. Introduction
IP in the kingdom of the Music Industry
● IP rights are necessary to reward every actor within
the Music Industry for their creative inputs, which, at
one point, will enter the public domain and benefit us
all
● Which IP tools are used within the Music Industry?
○ Trademark?
○ Patent?
○ Designs?
○ Most importantly : Copyright Source: Media&Society website
The Copyright Legal framework
● What does Copyright protect?
○ The tangible expression of a creative idea
○ Not an idea : US Supreme Court, Baker v. Selden, 1879
○ The Concept of Originality.
● Is the Copyright protection the same in every country?
○ Minimum standard : Berne Convention, 1886
○ Common Law (utilitarian approach) : lower protection
○ Civil Law (author approach) : higher protection
● What Copyright can you find in a track/song?
○ The compositional copyright : held by songwriters,
lyricists & composers Source: WIPO website
○ The master recording copyright : held by the performing
artists & label
Music & Copyright protection : a “Litigating Mix”
Many “grey areas” :
● When determining if there is copyright protection
○ Originality of a song : what is the level of permitted
inspiration from other works? Taurus (Spirit) vs
Stairway to Heaven (Led Zeppelin) case.
● When determining if there is an infringement
○ Similarities between 2 songs: can there be an
“unconscious” copying? My Sweet Lord (George
Harrison) vs. He’s so fine (Chiffons) case.
02. Case Studies 1: Social Media
SOCIAL MEDIA Social media and the internet in general, rely on the free flow of information, the rapid and lossless reproduction of content, and the global reach of every interaction. Yet Copyright Law, in a stark contrast, restrains the reproduction and distribution of content along territorial lines. In order to appreciate the importance of these issues, and to consider how the law in this area might shape the use of social networks in the near future, it is necessary to understand the copyright framework within which social media must operate.
MUSIC LICENSING BASICS
Music License = permission to use a song or sound recording
Though not an unlimited license, it is mandatory for all streaming services to secure this
license to operate in their territories.
Music Licenses can be issued by: Licenses can be paid by:
❖ Songwriters themselves Up-front fees and/or Royalties
❖ Record Labels, Producers
❖ Music Publishers With Royalties the copyright owner receives
❖ Performing Rights Organizations monetary compensation in exchange for
❖ Agents/Agencies on behalf of licenses.
copyright holders Usually expressed as a percentage (%) of
total sales
License Types Royalties for Music are earned income from
❖ Mechanical License various sources like : sale of CDs, Ringtones,
❖ Performing Rights Licenses Streaming, Public performances; Radio,
❖ Synchronization License Placements of music in Film, TV, Video
❖ Print Licenses Games
❖ Foreign Licenses
Fair use doctrine
Fair use permits limited use of copyrighted material without having to first acquire permission
from the copyright holder.
Fair Use Doctrine, sec.107 USCA Can videos be considered
The factors in determining fair use: parodies?
❖ The purpose and character of the use, including ❖ Sabine Jacque: “a parody is
whether such use is of a commercial nature or is something distinct from a mere re-
for nonprofit educational purposes; working or altered copy. A parody
❖ The nature of the copyrighted work; communicates a new distinctive
❖ The amount and substantiality of the portion used message from the earlier work it
in relation to the copyrighted work as a whole; and reproduces, and typically results in
❖ The effect of the use upon the potential market for the creation of a new expression
or value of the copyrighted work. which may be eligible for copyright
❖ Transformative use such as parodies protection.”
Common Law Civil Law
Countries Countries
● Social Contract End ● Creators Entitlement/ Creators Right
● Moral rights or the economic rights ● Subject of Protection- Authors Right,
are freely alienable (contract must economic interest, reputation.
specify the said rights): ● Moral Right- proprietary right of creator
Eg:Attribution, Integrity. ● Human Rights- Authors Personality and
● Object of Protection Creation
● List categories of Works protected ● Aware of it or could have been with due
● Tangible Medium of expression care
before Copyright is attached
● Distinction between ownership of
copyright vs exclusive right over
copyright.
● Right of First PublicationMadonna
Erik Satie vs
vs VMG
Janet Jackson
Salsoul LL.
The US Court of Appeals for the Ninth It found that the instrumental melody
Circuit ruled that the Madonna’s song played on the celesta was the same as the
Vogue did not infringe plaintiff’s one in the first motive of the Gymnopédie
copyrights to the Love Break no. 1 Moreover, the same key was used
composition since the copying was and the first four notes of Satie’s melody
trivial. This case is particularly were to be found in the chorus. Since the
interesting since the Court created a characteristics elements of Gymnopédie
circuit split by disagreeing with the Sixth no. 1 had been reused, the Court ruled
Circuit’s ruling in Bridgeport Music, Inc. that there was a copyright infringement.
v. Dimension Films and concluding that
there is a “de minimis” exception that
applies to infringements of copyrighted
sound recordings.American and French Regimes At a basic level, the French criterion for copyright infringement has traditionally been the same as in the US: for an unauthorized use of a copyrighted work to be actionable, the use has to be significant enough to constitute infringement. This means that a copyright infringement requires a copying but also that the average audience recognises the appropriation. This principle reflects the legal maxim, “de minimis non curat lex” (“the law does not concern itself with trifles”).
Categories of Social
Media Applications
Content Content Creation
Streaming App App
Tik Tok,
Spotify, You
Facebook,
Tube, Apple
YouTube,
Music etc
InstagramContent
Streaming Apps
Soon after the advent of digital music, there was a huge concern regarding unlicensed
streaming, unauthorised access & stream ripping entities. As music piracy & IP
Infringement began to cost the industry billions of dollars, there came into existence
regulations in the form of mechanical licenses. As per the 1996 WIPO Internet Treaty
(or Copyright Treaty) digital music services have been granted rights to operate and
extend their offerings to customers beyond their national territories and expand
globally.Spotify World's largest music streaming service providers, with over 356 million monthly active users, of March 2021. Major deals with Sony, Universal, EMI, and Merlin. The service operates under complete Digital Rights Management (DRM). Spotify offers digital copyrighted restricted recorded music and podcasts, including more than 90 million songs, from record labels and media companies. Unlike physical or download sales, which pay artists a fixed price per song or album sold, Spotify pays royalties based on the number of artist streams as a proportion of total songs streamed. It distributes approximately 70% of its total revenue to rights holders (often record labels ), who then pay artists based on individual agreements Spotify pays artists between $0.006 and $0.0084 per song stream
Copyright Infringement by Spotify In 2018, Spotify had allegedly infringed upon thousands of songs produced by Wixen Music Publishing. Spotify was sued for streaming more than 20 percent of songs from their library that carries over 30 million songs, without holding a license or paying a royalty to the publisher. It was around the same time that the streaming giant was accused by Bob Gaudio and Bluewater Music Services Corporation of failure to adhere to IP guidelines and evading the payment of mechanical licenses for music being streamed on Spotify.
Content Creation
Apps
The social media site does not own the work that has been posted on their site; the
copyright is still kept by the owner. By agreeing to post works on the site, you sign an
agreement that gives the site a license to use the work for a variety of purposes, such
as: displaying it, adapting it, or copying it. In these cases, the license is given without
payment.Facebook The Facebook Terms of Service state that you (the Facebook user) own the intellectual property rights (including copyright or trademark) over the content you create and share on Facebook and other Facebook products. You can share your content with anyone else, any time you want. In return, Facebook says, you must agree to give them a license to use the content. Lyp Sync Live (2018) When users upload Facebook videos containing music, they are informed if the included song is allowed through the licensing deals acquired by the social network. If not, the video will be muted, unless the uploader submits a dispute. The label that holds the copyright may then approve the usage of the song in the video through the Rights Manager tool of Facebook.
Facebook & Instagram
● There are no limits on things like music in Stories, or traditional
musical performances (e.g. filming a live artist or band performing)
● Shorter clips of music are recommended
● The greater the number of full-length recorded tracks in a video, the
more likely it may be limited (e.g. a stream may be interrupted, parts
of your video could be muted, or it could be removed entirely)
● There should always be a visual component to your video; recorded
audio should not be the primary purpose of the video
● Advises users to use it´s copyright free musicIn 2010, it was reported that nearly a third of
the videos with advertisements were uploaded
YouTube
without permission of the copyright holders.
YouTube gives an option for copyright holders
to locate and remove their videos or to have
them continue running for revenue
● Lenz v. Universal Music Corp
● Misinterpretation of the DMCA
● Fair Use Exception: copyright holders must consider fair use in good faith before issuing a
takedown notice for content posted on the InternetTikTok was most downloaded apps in 2020, with global
downloads of 850 million downloads.
Tiktok hit 500 million global monthly active users in mid- Tiktok
2018, and it's estimated to have grown to 1.1 billion users.
David Israelite, the president and CEO of the National Music
Tiktok's impact on viral songs Publishers’ Association:
❖ Lil Nas X’s - “Old Town "a large part of [the publishing] industry does not have
Road” now holds the record agreements in place, meaning numerous works continue to be
as the longest-reigning used unlawfully as the platform’s popularity grows
Billboard Hot 100 No. 1 in
exponentially.”
the chart’s history.
TikTok Terms & Conditions
❖ Megan Thee Stallion’s
Savage, went viral TikTok "We do not allow any content that infringes copyright. The
dance that became the use of copyrighted content of others without proper
"Savage Challenge." authorization or legally valid reason may lead to a violation of
TikTok's policies. Any user content that infringes another
person’s copyright may be removed."Tiktok and copyright
infringement
Over 104.5 million videos were removed from the
platform in the first six months of 2020. TikTok
Examples of Fair use in TikTok:
also received 1,800 legal requests and 10,625
copyright takedown notices.
❖ “Renegade” dance created by a 14-year old
girl. The dance exploded and everyone from Top five countries with the most removals:
music mega-star Lizzo to Kourtney o India – 37,682,924
Kardashian posted videos of themselves
o United States – 9,822,996
doing the dance, albeit without crediting
o Pakistan – 6,454,384
Harmon as the creator;
o Brazil – 5,525,783
o United Kingdom – 2,949,620
❖ Some of the videos uploaded to TikTok might
be considered a parody – for example, when
a user creates a funny lip-syncing video
using a sound clip from a reality TV show,
to create a new scene.Tiktok's recent
license agreements
ICE
Sony
Universal music
Believe
UK NMPACopyright Infringement Detection Systems Fingerprinting analyses the unique features of an audio or video asset and compares these against ‘reference’ fingerprints stored in a database. One of the key characteristic of fingerprinting is that it does not modify the content. Similar to a human fingerprint that uniquely identifies a human being, a digital fingerprint uniquely identifies a piece of video/audio content.
Applications of Digital fingerprinting
50% 80%
Shazam WIPO Proof
Shazam works by analyzing the WIPO PROOF is a new digital Videos uploaded to
captured sound and seeking a business service that provides a YouTube are compared
match based on an acoustic date- and time-stamped digital against audio and video
fingerprint in a database of millions fingerprint of any file, proving its files registered with
of songs. If it finds a match, it sends existence at a specific point in time. Content ID by content
information such as the artist, song This new service complements owners, looking for any
title, and album back to the user. WIPO's existing intellectual matches.
property (IP) systems.Youtube’s Content ID
Take-down request
A take-down request is a procedure for asking an Internet Service Provider (ISP) or search engine to
remove or disable access to illegal content.
- Notice and Takedown
- USA – Digital Millennium Copyright Act 1998
- EU- Electronic Commerce Directive adopted in
2000
- Notice & Notice
- set out in Canada’s Copyright Act
- Notice & Staydown
- Proposals for notice and stay down rules have
been made in the US by procopyright lobbysts
- Constitute Article 17 of the EU’s Directive on
Copyright in the Digital Single MarketCase Studies 2:
03. Sampling
Music Sampling
protected by copyrightWhat is music sampling? Music sampling is the reuse of a portion (or sample) of a sound recording in another recording.
An artist who samples
without legal permission
from the copyright holder
infringes on both
Sound recording Composition
the composition is a musical work,
the sound recording is the
with or without lyrics,
recording of a performance of the
that has been created
underlying composition
by a songwriter/composerWhy the artist is required to obtain permission from the copyright holder? Derivative work Music sampling from an original song can be considered a derivative work.
Case 1: GRAND UPRIGHT MUSIC LTD v. WARNER BROTHERS RECORDS, INC.
(1991)
“thou shalt not steal”
Gilbert O’Sullivan Biz Markie
Alone Again (Naturally) Alone AgainCase 2: VINCENT PETERS v. KANYE WEST, ET AL. (2012)
Complaining Work Defending Work
Vincent Peters (“Vince P.”) Kanye West
“Stronger” “Stronger”
Reference to the famous phrase “That which
doesn’t kill me only makes me stronger”
Tercet rhyme scheme (three
consecutive rhyming lines)
Song’s reference to Kate MossConclusion
The role of and challenges in the operation of Intellectual Property Rights in
the Music Industry are indefeasible.
What Copyright is at it’s acme is the perfect balance between:
1) The ethical and creative rights of the author of the original work.
2) The rights to reproduce, innovate and redevelop any existing artistic work.
Case Studies 1 : Case Studies 2 :
Social Media Samplings
Sampling is one of the ways in
Artificial Intelligence (AI) helps which upcoming artists can
copyright licensing across the innovate the existing works.
social media foras. Courts invariably decide the case
But again, that doesn't make AI on two broad considerations:
infallible. And it may 1) Plaintiff's Ownership of and
sometimes wrongly flag Registration of the copyright, in
materials over social media as the existing work.
'infringing'. 2) The principle of 'de minimis non
curat lex'.Thanks!
Do you have any questions?
By Laura Galvão Scalon, Pamela Echeverria, Asma’ Kamila Binti Hussein Kamal,
Lobna El-Shinnawy, Anusha Mohapatra, Shraddha Pandit, Deah Kapoor, Hurmat
Koul, Edoardo Duron, Prajjwal Kushwaha, Valentina D’Adda, Izotene Fidel-
Anyanna, Jeonggu Lee, Gerard Kevin Cagatan, Maksim Cherpak, Louise Fensby-
Bocquet, Ketevan Kavrelishvili, Marcelina Slugocka, Thala Maria Mouawad,
Alberto Burzio, Nastassia Merlino
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