Property for Free? An Analysis of Music and Copyright in the Digital Age

• Date: 01 January 2012

Property for Free? An Analysis of Music

and Copyright in the Digital Age

SINÉAD CANTILLON*

Introduction

In light of new challenges posed by digital advancements, this article

considers the consequence of new media on the effective operation of

intellectual property. In particular, the ongoing struggle between music

rights-holders and the spurt in digital reproductive technologies illustrates

the difficulty in balancing the protection of intellectual property rights with

the fostering of new innovation as the legal structure of copyright is

disrupted and tensions in the bargaining position between the rights-holder

and the public are augmented. In effect, the outcome of this copyright

debate will have repercussions on the public’s right to information and the

future existence and power of copyright.

This article sets out the doctrine of copyright itself, introducing the

legitimate objectives of copyright coupled with public interest and fair use

limitations. As legal discourse has expanded beyond direct primary infringe -

ment of copyright to the potential liability of third parties, secondary

infringement liability schemes will bereviewed in order to analyse the

current application of the copyright doctrine. This leads us to examine the

very existence of a copyright doctrine in the digital era. Transposition from

the “hard copy” world to the digital environment has found our traditional

perception of copyright ill-equipped to deal with the challenges posed by

digital technology. This article draws the conclusion that in order for a

copyright doctrine to survive and to be respected, it is in need of serious

reform to suit modern social and cultural forums.

Background to Copyright

Copyright is not a natural right, nor is it absolute. However, it can be

described as a complex legal doctrine, which may be incapable of ever

achieving its aim. Having no single overarching goal, copyright law builds

upon two extreme principles: firstly, fostering the creation of socially

* LLB LLM. Part of this article was submitted as my Thesis in partial fulfilment of the

requirements for the degree of LLM in International Commercial Law, University of

Limerick, 2010. I would like to thank my supervisor Laura Donnellan for her

continued support.

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valuable works which necessarily entails dissemination to the public and

secondly, to provide economic incentives to create by granting the creator

limited monopoly over their creative endeavours.1Copyright is thus not a

one-sided regime which creates a private property right based on the moral

notion of ownership, but instead it must take account of the balance which

is to be struck between the parties.2These goals have been articulated on

many occasions, including this succinct summary:

The limited scope of the copyright holder’s statutory monopoly, like

the limited copyright duration required by the Constitution, reflects a

balance of competing claims upon the public interest: Creative work is

to be encouraged and rewarded, but private motivation must

ultimately serve the cause of promoting broad public availability of

literature, music, and the other arts. The immediate effect of our

copyright law is to secure a fair return for an ‘author’s’ creative labour.

But the ultimate aim is, by this incentive, to stimulate artistic creativity

for the general public good.3

While the objective of copyrightis thus logical, it is undoubtedly a

precarious balance, which faces the “impossibility of serving one of the

described objectives without disserving the other”.4

In the face of this dichotomy, copyright’s balance of incentives has

become increasingly difficult to achieve in the digital realm due to the

unprecedented simplicity in casual redistribution methods. Notably, copy -

right holders have never been entitled to full control over their works, and

there has always been a reserved public right to access as “copyright [only]

makes sense as an incentive if its purpose is to encourage the dissemination

of works in order to promote public access to them”.5The danger is that

the right of access for the general public may not be sufficiently protected if

copyright law is stringently and broadly enforced. Importantly, copyright

holders are not granted monopoly over exploitation or use of their works,

but instead retain the exclusive rights of distribution and reproduction.

Following this rationale, dissemination can actually be viewed as a goal of

copyright and if the fundamental copyright right is seen to be the right to

control reproduction—does copyright make sense in an environment where

we have unlimited means of instantaneous reproduction? Indeed it is a

1The objectives of copyright can fall on either side of these two extreme views, but

most often is said to fall somewhere in between.

2 Indeed copyright can be described as a form of “bargain between the public and

copyright holders”—Jessica Litman, ‘Revising Copyright Law for the Information

Age’ (1996) 75 Or. L. Rev. 19, p.31

3 Twentieth Century Music Corp. v Aiken422 U.S. 151, 156 (1975) (US SC)

4 Peter Jaszi, “Toward a theory of Copyright: The Metamorphoses of ‘Authorship’’’

(1991) 2 Duke L.J., p.464

5 Copyright grants property-like rights to the right-holders in return for access to the

protectable works—Litman, supranote 2, p.33

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