Technology, creative practice and copyright
The Burden of History The origins of music copyright law are rooted in a particular, restrictive notion of the musical work (defined as a combination of melody and harmony) and its fixation in graphic form (the musical score). Thus, from the outset, copyright law valorised composition (and by extension, the composer) over performance as a form of musical practice. Initially, this ‘strategy of forms’ (Mosher 1989) was perhaps understandable, given that performance, ephemeral in nature and lacking a means of fixation and reproduction, did not lend itself to the evolving economic system based on fixed commodities and exclusive property rights. But it was not inevitable: it was the interests of composers and publishers that prevailed in the formation of early copyright law and, as a result, many forms of music not based in notation - including various types of folk music, jazz, and indigenous people’s music - have not been well served by copyright. It is not that these musics are lacking in a sense of ownership as is often assumed: in the music and dance of various indigenous peoples, for example, forms of individual and collective ownership can be seen to operate (see Harrison 2002).1 But the protocols associated with such ownership are often incompatible with the particular notions of fixation, assignable rights, and other premises upon which the exploitation of property rights in the world of music publishing are based.
Theberge, P. (2013). Technology, creative practice and copyright. In Music and Copyright, Second Edition (pp. 139–156). doi:10.4324/9780203036105-14