The language of copyright evolves with technology

Copyright considerations for music professionals

Volume 117, No. 1January, 2017

David Newhoff
Photo: Violet Kkaipa via

Photo: Violet Kkaipa via

Copyright is a tricky branch of law to talk about and it always has been. This is partly because the rationales for its existence are both commercial and philosophical, and so contemporary discussions about copyright often vacillate between these sometimes conflicting frames of reference. One minute we’re discussing mechanisms for compensation; the next, we’re talking about respecting the natural rights of the author. Both rationales were present in the early days of our country when copyrights were first taken up by state and federal legislatures, and both continue to inform the ways in which we understand the law to this day.

Contributing to the larger confusion over core principles, of course, is the fact that copyright proposes to deal with highly subjective concepts like “creativity” and “originality.” Adding even further to that confusion, technology comes into the mix. The courts aren’t always sure what to do about conflicts that arise when the language of the law doesn’t account for the market effects – good or bad – of a new paradigm.

It took the better part of America’s first century just to solidify much of the vocabulary of copyright law in use today. As the first cases were considered, we see that even the key terms of the Constitution’s intellectual property clause were not so definitive at the outset. For instance, most people usually associate the word “arts” with expression and “science” with invention, but case law through the 19th century actually defined the protection of science as copyright law and the protection of useful arts as patent law.

Although the 1976 Copyright Act is the current law of the land – and Congress is reviewing copyright again as a prelude to a possible new act – the language of the landmark Copyright Act of 1909 remains central to many of the core principles of copyright as it is applied today. This likely has a lot to do with the fact that the courts and the legislature had to wrestle with the machine age that boomed at the end of the 19th century, which then fostered a vocabulary for addressing the electronic and, to some extent, the digital age.
For instance the 1909 Act added the “mechanical” reproduction right for musical compositions, which at the time meant player-piano rolls and would later protect compositions for records, tapes, CDs and audio files – technology that nobody in 1909 could have anticipated. But just prior to this congressional decision, in the 1908 case White-Smith Publishing v. Apollo Co., the Supreme Court ruled against composers who were seeking a licensing interest in the piano rolls that were made from their scores. In essence, the court held that the piano rolls were part of the music-making machine and because they were not intelligible to human “readers,” they were not “copies” according to the justices’ reading of that word in the statute.

The addition of the mechanical right to the 1909 Act effectively overturned the White-Smith decision, but Congress also added the “compulsory license” at the same time, which was reportedly a move to bust the Aeolian Player Piano Company’s efforts to corner the market by buying up rights to compositions in anticipation of congressional action. With the Great Depression, many player pianos and pianolas were burned for firewood, and the next chapter of music licensing would deal with a new technology called radio.

Just as those early 20th century composers were initially disenfranchised by the court’s reading of the statute and subsequently protected by congressional revision of the law, contemporary artists and creators face similar challenges during the new, transitional period for copyright that exists today. In much the same way that the player-piano companies would have been served by the court’s narrow reading of the word “copies,” today’s leading internet interests similarly vie to keep aspects of outdated copyright law where that obsolescence serves their interests.

As one example, major internet companies seek to calcify the language of the 1998 DMCA Section 512, which has unintentionally enabled legal platforms to exploit music and other creative works without license or compensation. The statutes, as written, protect the platforms from liability for infringement if they meet certain conditions, but the terms of those conditions (e.g., when is a user a “repeat infringer”?) remain vague. And the online service providers like it that way.

In the current political climate, which is clearly volatile, creators will hear a lot of rhetoric that wants to bury the quiet details beneath loud generalizations. As Congress has now issued its first set of proposals to move toward a 21st century approach to copyright, the internet industry has a lot at stake – just like the player-piano industry once did. Musicians and other artists should stay involved and remember that their rights live and die by the subtleties in the evolving language of the law.

David Newhoff is a writer, copyright advocate and blogger for The Illusion of More, a blog that is part original editorial, part investigation into the world of copyright protection and the digital ecosystem. The blog is essential reading for people particularly interested in copyright and intellectual property, and can be found at